Essay On An Independent Judiciary In A Democracy Government

President's Message

Independent courts are vital to democracy

By Linda A. Klein

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Photograph Courtesy of the Office of the President.

Judicial independence is one of the most important principles of the rule of law. It is critical in defending people from intrusions and overreach by the government and preserving a free and democratic society.

James Madison, when drafting the Constitution, sought to guard against a “tyranny of the majority” by designing a government that was balanced, with three separate, co-equal branches—including an independent judiciary.

Article III, Section 1 of the Constitution protects the federal judiciary by granting lifetime appointments “during good behavior” and compensation that “shall not be diminished.” This means federal judges can’t be threatened with the loss of their jobs or a pay cut if they render an unpopular decision.

An independent judiciary envisions that courts should follow the rule of law, basing their decisions on constitutional principles, applying relevant statutes and legal precedents to the facts of each case. Unlike politicians, judges should be immune from public opinion and special interests and must decide cases according to the law, even when doing so may be unpopular.

But the structure set up by our nation’s founders is not enough to guarantee this very important tenet of our democracy.

Public trust is eroded when leaders attack judges’ character and competence. Disagreeing with a decision is one thing. But personal attacks on judges are attacks on our Constitution. The ABA and the legal community cannot tolerate assaults on the judiciary because they can chip away at the legitimate authority of that branch of government and give undue influence to the legislative and executive branches.

In many jurisdictions, state court judges face elections. Campaign contributions and interest group pressures during these elections, at the very least, create an appearance of influence and undermine public confidence in the impartiality of the judiciary. So do political attack ads that mislead the public about the legal process and the role of judges.

Because judges must follow professional codes of conduct that prohibit them from speaking about pending cases, they are often prevented from publicly defending themselves from attacks. It is therefore up to the bar, the legal community and all citizens to protect the integrity of the courts.

In his book, On Tyranny, Yale history professor Timothy Snyder studies the ways that authoritarian regimes came to power and offers lessons to protect against tyranny. He argues that it is imperative to defend institutions, which include the press, trade unions and, of course, the courts. He points out that although institutions normally protect people, there are times when institutions cannot protect themselves and need to be defended.

“Judicial independence does not just happen all by itself,” associate Supreme Court justice Sandra Day O’Connor wrote in 2008. “It is tremendously hard to create, and easier than most people imagine to destroy.”

The American Bar Association, often in partnership with state and local bar associations, has long made defending the courts and preserving judicial independence a priority. The ABA evaluates the professional qualifications of federal judicial nominees, responds to unwarranted criticism of judges and, through programs like Law Day, provides information about the role of the judiciary in our system of government. We recently compiled some of the ABA’s many resources at ambar.org/ProtectOurJudiciary. Please share them widely.

The ABA has opposed state and federal legislation that has attempted to punish judges for making unpopular decisions or even from hearing cases that deal with controversial issues. These are attempts to circumvent the authority of the courts.

Because the bar is uniquely qualified for this role, it will continue its important work to preserve the independence of the judiciary and take action when judges are subjected to attacks.

The legal community must remain diligent and vigilant in their support of institutions, especially the autonomy of the courts. Judicial independence ensures the rule of law, safeguards our democracy and is what former Supreme Court Chief Justice William Rehnquist called “the crown jewel of our system of government.”


Follow President Klein on Twitter @LindaKleinLaw or email abapresident@americanbar.org. This article appeared in the June 2017 issue of the

ABA Journal with the headline “Independent Courts Are Vital to Democracy: Our judiciary safeguards rights and liberties and needs to be protected from attacks.”

 



Introduction

Disputes are an inevitable consequence of social interaction in every society. As an alternative to violence, governments have established judicial systems for the purpose of dispute resolution. Before resolving conflicts, courts must first determine what the law is. This role is especially important in a constitutional democracy where laws are made by popularly elected representatives who are required to express the will of the majority while at the same time respecting the rights of the minority.

Impartiality is certainly one of the major goals of law courts. Most democratic governments try to maintain their judicial systems' objectivity by deliberately insulating courts from external influence, either from other governmental sources such as legislative, executive, or administrative authorities, or from private interests attempting to exert economic, social, ethnic, religious or regional pressure on judges. Judicial independence is essential to the courts' integrity and credibility within a political system. That independence has two key components: decisional independence, defined as respect for and compliance with the courts' decisions, and structural independence, which means freedom from political leaders' interference in the selection, promotion, compensation, and daily operations of judicial personnel. Independent organizations such as Amnesty International and Freedom House confirm that in modern governments, a high degree of judicial independence correlates closely with political stability, respect for human rights, and the vitality of other democratic institutions.

The motto of the U.S. Supreme Court, "Equal Justice Under Law," embodies the objectives of the judiciary in a democratic society. Because U.S. courts enjoy a level of influence and respect unequaled anywhere else or at any other time in history, it is appropriate to focus on the American judiciary as an example of judicial independence.

Courts and Democratic Freedom

Establishing a separate, distinct judicial branch of government responsible for upholding the Constitution as the supreme law of the land is a unique American contribution to political theory, and one that is attracting increasing attention from abroad. Indeed, it was a revolutionary idea in the late 18th century, especially when contrasted with the notion of parliamentary supremacy so familiar in Great Britain. Under British practice the sovereign authorizes Parliament to act as the ultimate arbiter of decisions made under an unwritten constitution, whereas American practice regards the written Constitution itself as sovereign. No political power can supersede it, and the independent judiciary, rather than the elected legislature, serves as its interpreter.

Far from a threat to popular will, a separate judicial branch was designed to guarantee democratic freedoms by preventing the concentration of power in government. It plays a vital role in maintaining the delicate balance between the separated powers. As Alexander Hamilton explained in "Federalist 78," one of a series of newspaper editorials written in support of the proposed Constitution in 1788: "[T]he judiciary, from the nature of its functions, will always be the least dangerous branch....The judiciary...has no influence over either the sword or the purse; no direction either of the strength or the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment...."

Making the judiciary directly accountable to either the legislative or executive branches--for example, by subjecting judges' terms of office to periodic renewal by the political branches--would endanger the system of separated powers. It could tip the balance too far in favor of one of the other branches, and it would likely risk greater introduction of partisan concerns into the judicial process.

Yet commentators have long pointed out that the American independent judiciary has not been able to avoid political issues even if it has eschewed openly partisan decision-making. Already in 1835, Frenchman Alexis de Tocqueville noted, "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." History has further confirmed that the U.S. judiciary has a powerful impact on public policy even though it is not technically accountable to the political branches of government.

Understandably, this is puzzling and perhaps even troubling to many international observers. While they recognize the need for constitutional limits on governmental power, they are less convinced that the courts should enforce constitutional supremacy. After all, why are judges--who are appointed for life terms and usually from an elite stratum of society--more suited to the task than elected representatives who are more accountable to the people? The answer lies in the fact that the United States is a constitutional democracy, which requires that majority rule be balanced with minority rights.

The counter-majoritarian nature of the judiciary is actually an advantage rather than a flaw. Limits on governmental power and guarantees of individual rights would be meaningless without some institutional means of curbing the power of the majority. The judiciary, therefore, is the perfect vehicle for protecting minority rights while the other two branches are more responsive to the majority. Unlike other officeholders, judges have no constituents; they "represent" the Constitution and derive their authority from it.

The judiciary itself has defended this view. Since the 1930s, courts have focused more on cases involving civil rights and liberties while leaving other policy issues to the majoritarian political branches to decide. This approach has proven popular with the public, which in turn confers widespread support upon the courts. The difficulty of reconciling democracy with the operations of courts can be overwhelming in countries where courts are suspect. In some cases, the judiciary has been linked to predemocratic regimes and monarchical or aristocratic powers, or it has been tainted with politicization or a legacy of hostility to progressive reforms. In contrast, the American judiciary has been an integral part of limiting governmental power. By enforcing contracts and creating a climate of stability and predictability for business, the courts have also played a key role in promoting economic development.

The American Judicial System

The American legal system is adversarial in nature. Unlike many Eastern systems where disputes have traditionally been submitted to arbitration in the interest of social harmony, Western systems such as Great Britain, Canada, Australia and the United States have embraced the adversarial judicial process. As a result, lawyers and judges play a much larger role in society and many grievances are defined in legal terms as "causes of action" appropriate for litigation. American courts handle almost 100 million legal cases each year. Legal language permeates everyday life, and the "courtroom drama" is a popular literary genre.

The adversarial system is based on partisan presentations of evidence most favorable to each side and assumes that self-interest will prevent any relevant facts and arguments from being overlooked. The judge is not an active investigator as is common in inquisitorial systems such as France's, but rather a neutral umpire, a tradition that dates back to Rome in the fourth century B.C. In both civil and criminal cases, the judge enforces strict rules about what evidence is allowable and how cases are conducted, and rules on objections raised by either litigant. In criminal cases, the burden of proof rests upon the state, which by definition prosecutes them; the accused is presumed innocent until proven guilty "beyond a reasonable doubt."

In addition, those accused of wrongdoing enjoy several other protections including the right to be informed of the charge, the right to refuse to answer questions, the right to be represented by a lawyer and to question witnesses during a trial, and the right to a prompt, public trial by jury. Jury trials are a hallmark of adversarial systems but are not limited to such systems. They are used in Austria, Belgium, Denmark, Greece, and Norway, as well as in some Latin American countries and Swiss cantons. The practice originated in ancient Athens, when a group of ordinary citizens of a predetermined number was called together by a duly constituted public official for the purpose of answering a specific question, usually whether the accused was guilty or not guilty.

All trial courts in the United States have "original jurisdiction" to hear cases in the first instance; that is, they are empowered to originate the case. They are interested in establishing a factual record of the disputed events based on proper procedures. Litigants take turns presenting evidence and arguments. On the basis of that record, the judge (often with a jury) determines the appropriate outcome of the case. A trial court's decision (known as a "verdict" in a criminal case and a "judgment" in a civil suit) may be appealed to a higher court, which has "appellate jurisdiction."

The appellate court must accept the lower court's reconstruction of the facts and may consider only questions of law, including procedural matters that arose during the initial trial. For example, appellate courts do not employ juries, but they may properly inquire about the procedures used to select the jury that rendered the decision in the trial stage, or the instructions the trial judge gave to that jury, or any allegations of jury bias. Citizens are constitutionally protected from "double jeopardy," that is, being tried more than once for the same offense before the same level of tribunal.

Because the United States is a federal rather than a unitary system, the 50 states (roughly equivalent to provinces elsewhere) are not dependent on the central government for their powers. In fact, the Constitution makes clear that, instead, the people of the states have delegated certain powers to the central, or federal, government while reserving all remaining authority for the states and the people.

Just as each state legislates as it sees fit, each state has its own court system responsible for interpreting and enforcing state statutes and constitutions. Although the Constitution is supreme law and the U.S. Supreme Court has jurisdiction over state courts, only a tiny fraction of legal cases come before a federal court; almost 99 percent of American cases are handled in state courts.

Most crimes and violations of private rights, as well as civil law cases, are matters for state court adjudication. The Constitution limits federal court jurisdiction to cases involving the Constitution, federal law, treaties, admiralty and maritime law, and cases where ambassadors, the federal government, or two or more states are parties. The federal courts have exclusive jurisdiction over bankruptcy, patent, and copyright law. They share concurrent jurisdiction with states over suits between citizens of different states, in which federal judges apply the appropriate state law, and cases involving the Constitution and federal laws, in which state judges must apply federal law. Article VI of the Constitution binds all judges to recognize the Constitution as "the supreme Law of the Land."

States are free to structure their judicial systems as they choose. Most have chosen a four-tier model. At the lowest level are courts of limited jurisdiction, which hear minor civil and criminal cases, for example, traffic, juvenile, and small claims courts which settle disputes involving small sums of money. These are the "workhorses" of the state judicial system, processing the bulk of the state's legal cases. The next level consists of state courts of general jurisdiction. These are the major trial courts empowered to hear more serious criminal cases and civil cases in which large sums of money are involved. Most states have a third tier, the intermediate court of appeals, as well as a top level, the state supreme court. Legal custom grants each losing litigant (with the notable exception of the prosecution in a criminal case) one appeal. In states without an intermediate appellate court, the state supreme court must hear these appeals.

Another detail left to the states' discretion is the method of selecting judges. While all federal judges are appointed for life terms by the U.S. president with the consent of the Senate, five methods are currently in use selecting judges in the states: partisan elections, nonpartisan elections, election by the state legislature, appointment by the governor, and the merit system. The last method is the most popular and is sometimes called the "Missouri Plan" after the first state to adopt it. Judicial nomination boards screen applicants of judicial posts and send a list of the three to five best qualified candidates to the governor of the state, who makes the final choice.

The federal judicial system is composed of three tiers. The major trial courts are known as U.S. district courts. There are 94 of them. Each state has at least one, and no district court's jurisdiction includes more than one state. District court cases are usually heard by a single judge, who must be a resident of the district in which he or she presides. In addition to the district courts, several special courts created by Congress have original jurisdiction over certain types of cases, for example, tax courts, customs courts, and courts martial (military tribunals).

Decisions of the district courts, special courts, administrative agencies, and state supreme courts may be appealed to the 13 U.S. courts of appeals. Colloquially known as "circuit courts," these appellate tribunals also respect state boundaries with several states comprising one federal judicial circuit. There is a separate court of appeals for the District of Columbia and another called the Federal Circuit, both of which handle appeals generated by agencies of the federal government. Judges on these courts usually sit in panels of three; for especially controversial cases, all the judges on the circuit will hear the case together en banc, although this is very rare.

At the apex of the federal judicial system is the U.S. Supreme Court. Although its original jurisdiction is constitutionally specified as extending to cases involving two states (for example, boundary disputes), those between a state and the federal government, and those involving foreign ambassadors, it is primarily an appellate court with discretion over its own docket. The Supreme Court serves as the court of last resort for all legal cases in the United States, including matters of administrative law and constitutional questions. Issues of constitutionality can only be addressed if they are "justiciable," that is, presented to the Court in the context of a legal controversy by actual parties asserting a legitimate injury for which the court can provide a suitable remedy.

Of the literally thousands of requests for review filed each year, the Supreme Court chooses about 300 cases to consider on their merits. Four of the Court's nine justices must agree that a case warrants Supreme Court review. In selecting which appeals to consider, the justices look for those in which a substantial federal question is presented, or two lower courts have reached conflicting conclusions over the same issue or a lower court has ruled on a matter that the Supreme Court has not yet settled in an earlier case.

Oral arguments of the cases are open to the public and scheduled during the Court's regular term from October through April every year. The Supreme Court sits en banc rather than in smaller panels, and at least six of the nine justices must be present to hear a case. About 150 cases are argued and decided in written opinions which serve as precedent for future cases. Approximately the same number are decided summarily without oral argument or formal written opinions.

Decisions need not be unanimous; they are based on the will of the majority. The justices write and sign their opinions, which can either concur with or dissent from the decision. The opinions are all circulated among the justices and subsequently published.

There is only one main opinion explaining the majority's rationale for its holding; it is often called the "controlling opinion" because it alone serves as precedent for future cases. Separate opinions are not perceived as weakening the judiciary, but rather as the basis for robust dialogue among legal scholars. It is the prerogative of the chief justice to assign opinion writing if he is in the majority on a case; if he is in the minority, the duty falls to the most senior justice in the majority. Balancing workloads and deferring to certain justices' special areas of expertise are among the factors considered when opinions are assigned.

The United States Supreme Court enjoys a high level of respect and prestige even though the public is not very knowledgeable about its actual workings or decisions. Despite this lack of awareness, opinion surveys consistently reveal greater public confidence in the Supreme Court than in the Congress or the presidency.

Judicial Power in Theory and Practice

The American judiciary exercises its greatest power through judicial review, the authority to declare acts of states, Congress, the presidency, or administrative agencies unconstitutional. Interestingly, the term "judicial review," like the word "democracy," is conspicuously absent from the U.S. Constitution. There is no doubt, however, that the Founders were familiar with the concept. By the time the Constitution was drafted in 1787, eight of the 13 states had incorporated judicial review into their own constitutions, and more than half of the delegates to the Constitutional Convention supported it. Of course, the practice was not without its critics, including Thomas Jefferson, who attacked judicial review as undemocratic, elitist and violative of separation of powers. Its absence from the text of Article III of the Constitution is probably due to the resistance the provision might have encountered from the states, who would be reluctant to ratify a document giving the national Supreme Court authority to nullify state action.

In the rather unlikely legal case of Marbury v. Madison in 1803, a unanimous Supreme Court speaking through Chief Justice John Marshall declared that "an act repugnant to the Constitution is void" and that it was the judicial branch that should make that determination. The case arose from a provision of the Judiciary Act of 1789, which gave the Supreme Court original jurisdiction to issue writs of mandamus ordering government officials to perform their duties. William Marbury had been appointed a justice of the peace by outgoing President John Adams but never received his commission. He brought suit asking the Supreme Court to issue a writ to the new secretary of state, James Madison, forcing him to deliver the commission. Chief Justice Marshall, also appointed by Adams, was sympathetic to Marbury's plight but refused to comply with the request, arguing that the disputed Section 13 of the Judiciary Act gave the Supreme Court a power not sanctioned by the Constitution and was therefore void.

In the process of humbly refusing to accept Congress's grant of authority to issue writs of mandamus, Marshall thus assumed a much greater power for the Court: that of judicial review. In the opinion, he said, "It is emphatically the province and duty of the judicial department to say what the law is....This is the very essence of judicial duty." The case is a landmark in American jurisprudence and has been cited in judicial decisions in India, Italy, and Japan as well.

In theory, judicial review can be exercised by any court. In practice, however, if a lower court declares something unconstitutional, a higher court is certain to review the decision. Because judicial review is not expressly conferred in the Constitution, a divergence of approaches to its use has developed. Proponents of "judicial activism" encourage judges to use judicial review aggressively to ameliorate social problems wherever and whenever possible. Because the judges are not elected, they can focus on what is "right" even if that is not necessarily popular. Judicial review, they argue, allows the courts to be a counterweight to the other branches. Moreover, without it the judiciary would be too weak to play its role in the system of separated powers.

This view is challenged by advocates of "judicial self-restraint," who prefer a limited use of judicial review. If courts act too rashly, they contend, the other branches will retaliate by imposing limits on the judiciary. They stress the democratic element of this approach as well, which opts for deferring to the popularly elected legislative and executive branches, rather than relying on the judgment of the appointed judiciary. Judicial review is valuable as a deterrent, because the states and other branches must take it into consideration before they act lest they risk the courts' rebuke.

Regardless of which approach they support, legal scholars all recognize that judicial review is not exercised lightly. Most of the federal courts' workload involves statutory construction, that is, saying what specific laws mean. Judicial decisions of this sort can be easily overridden with the passage of new legislation, which courts are then bound to uphold and apply. The federal bench's most important function is constitutional interpretation, giving meaning to specific constitutional provisions. Judicial review--in effect saying "no" to other branches of government--is practiced extremely rarely in comparison. And, with some very significant and notable exceptions, courts in the United States usually sustain challenged governmental actions. In so doing, they validate the government's status and legitimacy and provide an important element of political stability.

Full-scale judicial review exercised by ordinary courts within the regular judicial hierarchy exists in only a handful of countries, including Australia, Brazil, Canada, India, Japan, and Pakistan. Several other countries, such as Austria, France, Germany, and Italy, have special constitutional courts that convene for a similar purpose.

It is interesting to note that judicial review is not synonymous with judicial activism, either. For example, while Swedish and Japanese law formally provides for judicial review, the Supreme Court of Sweden has never found a law passed by the Riksdag unconstitutional, and only rarely has the Japanese Supreme Court invalidated an act of the Diet. In Israel, by contrast, there is no provision for judicial review but the Supreme Court has assumed a very prominent role within the system.

Ensuring Judicial Independence

If the exercise of judicial review is to be effective, judicial independence is essential. One of the key components of maintaining independence on the federal bench is life tenure. The constitutional provision stating that federal judges shall hold their positions "during good behavior" was one of the first items to be agreed upon by the delegates to the U.S. Constitutional Convention. Alexander Hamilton echoed this sentiment in "Federalist 78," explaining that because "nothing can contribute so much to [the judiciary's] firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient."

Originally, judges in the American colonies served "during good behavior," but in 1761, this was changed to "during the royal pleasure" making magistrates entirely dependent on the king. In fact, this grievance was one of many cited against King George III in the Declaration of Independence in 1776. The king was accused of "obstruct[ing] the administration of justice by refusing his assent to laws for establishing judiciary powers. He has made judges dependent on his will alone for tenure of their offices, and the amount and payment of their salaries."

Like presidents and other high-ranking government officials federal judges may be removed only by impeachment and conviction of "treason, bribery, or other high crimes and misdemeanors." Judicial impeachments are conducted by the House of Representatives and require conviction by the Senate. They are very rare. The process is deliberately difficult, to guard against judges being impeached for political reasons or being challenged by their philosophical opponents.

Despite history and constitutional command, some argue against life tenure for federal judges. Fixed terms, they assert, would allow for periodic performance review, greater accountability for their decisions, more coherent policymaking with a candid acknowledgment of the judiciary's political role, and more innovation due to the continual influx of new judges. Most conclude that the disadvantages of fixed terms still far outweigh any benefits. Obviously, judges would sacrifice some independence. They might "campaign" by allowing political factors to influence their decisions or curry favor for future posts off the bench. Presidents could use appointments as political rewards, and judges would become more attentive to trends in the popular mood rather than preserving the Constitution. There seems to be no real problem with incompetence on the bench now, so the higher turnover of judicial personnel would deprive the courts of maturity and experience among its members.

Article III of the Constitution further ensures that compensation for federal judges "shall not be diminished during their continuance in office." Neither Congress nor public opinion can "punish" a judge for an unpopular decision by threatening his paycheck. With an assured salary and permanent tenure in a respected office, judges have no real incentive to abuse authority so they are much more likely to discharge their duties faithfully. Similarly, judges cannot be sued for their official actions; in 1868, a court ruled that all judges are "exempt from liability in a civil action for acts performed in the exercise of their judicial functions."

Judicial independence is also enhanced by the selection process for federal judges. Federal judges are appointed by the president when vacancies occur. They must be confirmed by a majority vote in the Senate before taking office. Presidential appointments of judges leave a visible and important legacy, so presidents carefully consider those whom they select, especially for the Supreme Court. Among the criteria presidents look for in a judicial nominee are judicial philosophy, reputation, judicial record (if any), experience, ideology, partisan background, personal friendship and loyalty, representation of different groups within a diverse society, and qualifications based on ratings issued by private groups such as the American Bar Association, the legal professional association.

Judges in the United States receive no special training beyond that of lawyers, which is a juris doctor degree earned after a rigorous three-year graduate program at a law school. Experienced lawyers consider a judicial post the pinnacle of their legal careers, and the appellate courts attract the best practitioners in the profession. Because the United States is the most litigious country in the world, there is no shortage of lawyers. They generally enjoy high status and income and are part of a social elite. This is even more pronounced for judges, who are called "your honor" in court and are considered more prestigious than civil servants or politicians.

Judges are respected for their learning, experience, and impartiality. As a result, they are often asked to serve in a variety of public capacities, such as participating on a presidentially appointed commission. For example, former Justice Robert H. Jackson was chosen as the chief prosecutor at the Nazi War Crimes trials in Nuremberg following World War II, and former Chief Justice Warren Burger was asked to head the United States Constitution Bicentennial Commission.

Limitations on the Judiciary

While the American judiciary is one of the strongest in the world, its power is by no means unlimited. There are numerous checks on its authority, some constitutional, some statutory, and some customary.

Article III of the Constitution spells out jurisdiction and limits the courts to hearing actual cases or controversies, that is, real legal disputes. The courts have interpreted this to mean that they may not render advisory opinions nor advise government officials or private parties on hypothetical cases.

Unlike the other two branches, the judiciary is reactive rather than active. It must wait for cases to come before it and cannot initiate litigation. This limitation on the courts can also be an advantage in that it provides a "cooling off period" so that inflammatory issues may be considered more rationally. Studying this phenomenon in new democracies around the world in the 1990s, political scientist Bruce Ackerman writes: "Quite simply, if a court must wait for a specific complaint by an ordinary individual, it may take a while before a bitterly politicized dispute makes its way into the judge's chambers. This delay provides the court with a valuable political resource in its struggle to sustain itself as part of the new constitutional order....A judicial decision that could have propelled the court into a losing battle with an outraged parliamentary majority might, two years later, be received in a more measured way. The pause may also permit the court to make a better decision--giving it a perspective easily abandoned in the heat of a partisan contest."

The Constitution also provides several checks on the judiciary to be exercised by the other branches to maintain the system of separated powers. No one ascends to a federal judgeship without presidential appointment and Senate approval. The executive has the power of granting pardons and reprieves of judicial sentences, an especially significant check on state judiciaries when exercised by governors. Presidents have this same power but use it less often. Perhaps the most important influence the president exerts over judicial authority is the enforcement power. After all, judicial decrees would be taken far less seriously were it not for swift and certain enforcement carried out by the executive branch.

Congress has even more external controls over the courts. The Senate can reject a nominee, although this has happened in fewer than 10 percent of all Supreme Court appointments. Congress can impeach judges, also a rarely invoked but important check. It can effectively nullify a court's interpretation of a statute simply by passing a new law, and it can react to a court's constitutional interpretation by introducing a constitutional amendment, which it has done on several occasions, four times successfully.

The legislative branch is also empowered to change the federal courts' appellate jurisdiction. Because so much of the federal docket involves appeals, any limitations imposed by Congress could strip the court of much of its caseload. Congress has exercised this power only once, during the Civil War in the mid-19th century. The Supreme Court upheld the action as a valid exercise of congressional authority under the Constitution. Congress can also expand or contract the size of the federal judiciary, including altering the number of justices on the Supreme Court. While it often creates new district court judgeships, it has not changed the number of Supreme Court justices since 1869, when nine became the standard, nor is it likely to do so.

Just as judges are aware of external checks on their power, so too are they mindful of self-imposed limitations. Naturally, their own notions of the proper judicial role constrain their actions somewhat. But specific legal requirements and judicial doctrines also matter a great deal. For example, the courts will try to avoid ruling on cases they categorize as "political questions," which are more properly resolved by the elected branches. Another doctrine is that of stare decisis, literally meaning "let the decision stand," or following precedent in similar cases. Decisions of higher courts are binding on lower courts, but stare decisis implies that decisions of a higher court will be binding on future cases in that same court as well. This is a custom, not a rule, but one upon which the stature of the law depends if it is not to be viewed as arbitrary. Courts can and do overturn their previous decisions, but because of the norm of adherence to precedent, "the law" is relatively slow to change. Combined with the long tenure of judges, there is an important institutional memory available for judicial decision-making and a continuity that further strengthens support for the courts.

Conclusion

Reduced to their most basic purpose, all courts in all political systems exist to resolve disputes. Conflicts presented before judges range from minor squabbles among private parties to the scope and legitimacy of governmental action at the highest levels. Whether judges use written constitutions, elaborate legal codes, a common law tradition, or religious texts, their decisions must be based on some generally recognized and approved standard if they are to endure. By removing courts from the daily political pressures and rapidly changing social forces confronted by other government leaders, societies can best preserve the element of judicial independence so vital to stable political systems.


THE FRENCH JUDICIAL SYSTEM IN BRIEF

While American courts are based on the English common law tradition, French courts practice Roman law. The French model is more prevalent around the world today than the Anglo-American judicial system. No doubt this is due largely to the impact of the massive Napoleonic Code, an extensive collection of civil, criminal, penal, commercial, and procedural laws drafted under the direction of French Emperor Napoleon Bonaparte between 1804 and 1815. The courts administering the law in France are exceptionally complex, a structure the government defends as "the product of successive contributions from centuries of our history, and in it, tradition continues to play a very important role."

France distinguishes between ordinary or regular courts (which handle civil and criminal law) and administrative courts (which deal with cases involving governmental regulations). In cases of conflict over jurisdiction, the eight-member Tribunal of Conflicts, headed by the minister of justice who casts tie-breaking votes, decides which court gets the case. At the apex of the system is the Supreme Court of Appeal (Cour de Cassation), which has final jurisdiction in civil and criminal matters on points of law, and enjoys great prestige and respect. Jurisdiction is strictly appellate, and the court is divided into five sections (family, property, commercial, social, and criminal) with 15 judges, each headed by a president. Seven judges are required to hear a case. The Supreme Court of Appeal has no power of judicial review. It possesses only the power to quash (Cassation comes from the French word "casser," to break) the legal case and remand it to a different lower court for retrial.

French courts are very protective of their independence. Following a long tradition, administrative law is largely judge-made rather than codified in statutes passed by a legislative body. Administrative courts are generally regarded as rapid, convenient, and efficient. Even though they are more closely associated with the executive than the judicial branch, it is usually the citizen who prevails in legal cases. The powerful Council of State at the top of the system can review the decisions of the regional tribunals. Administrative courts may annul illegal action or require payment of damages to individuals. Citizens need only file an official complaint (at very low cost) and an investigation ensues, sometimes followed by an oral hearing. The tribunal renders its decision publicly.

The practice of handling legal cases according to written codes lessens the potential for political influence on judicial decision-making. Judges are nonpolitical appointees recruited through a competitive examination following special training. Their prestige is not as high as in countries where they are selected from a social elite, but they do develop a sense of esprit de corps because lawyers and politicians do not aspire to posts on the bench. Judges are removable only for misconduct in office, ill health that impedes their ability to perform their duty, and mandatory retirement at age 67 (70 for those on the Supreme Court).

The Constitution of 1958 names the president of the republic as the "guarantor of the independence of judicial authority." Although in theory the judiciary is independent, in reality the promotion of judges can be political because presidents face temptation to reward loyalty and conformity. As a result, there is public skepticism about judicial independence, and only half the people see the courts as independent of the government. Of course, this is also due to the fact that courts are perceived as a public service, much like the postal service. The Ministry of Justice has a small budget and even has to advertise in newspapers and magazines to recruit judges.

Another limitation on the influence of judges in France is the judiciary's historic unpopularity. Before the French Revolution in 1789, courts were despised for their anti-egalitarian attitudes. Because the French system is inquisitorial rather than adversarial, there is no presumption of innocence in court. The judge decides if there is sufficient evidence for a trial, and if so, conducts it and interrogates witnesses. Decisions are made in panels anonymously and minority opinions are forbidden. Judicial operations are supervised by the Council of the Judiciary, presided over by the president and the minister of justice. It advises the president and also serves as a disciplinary body. Its nine members are appointed by the president for four-year terms.

Significantly, the Supreme Court does not have jurisdiction over constitutional matters. There is a High Court of Justice which can try members of government for high crimes and misdemeanors, but it can only be convened when indictments have been voted by majorities of both the Senate and the National Assembly.

The only body with the power of judicial review is the Constitutional Council. It is comprised of all former presidents of the republic and nine other members who are appointed for staggered nine-year terms by the president and the two legislative chambers. Although technically it is empowered to declare laws, treaties, appointments, and procedural rules unconstitutional, it operates under some important constraints. Access to it is very limited. Private groups or individuals cannot challenge the constitutionality of a statute; only the president, prime minister, and presidents of the two legislative chambers are entitled to do so. There is a time limit as well: challenges must be made between the time parliament approves a bill and its promulgation. Moreover, only the substance of a statute and not its procedural application can be challenged.

Like many countries, France has a strong commitment to respecting the people's preferences as expressed through the legislative branch. The enduring quality of its courts, and especially its unique administrative court system, help to reinforce support for judicial independence.


TWO DECISIONS OF THE U.S. SUPREME COURT

Two landmark criminal law cases heard by the U.S. Supreme Court illustrate how the majority justices support their decisions and how the dissenting justices make their opposing arguments.

Gideon v. Wainwright, a 1963 case, established the vital principle that the right to legal representation, even for those who cannot pay for it, is an essential part of the right to a fair trail mandated by the Constitution. Gideon, the defendant, had been denied the right to counsel and was forced to defend himself in court against the charge that he broke into a pool room intending to commit a misdemeanor. After being convicted, he appealed to the Florida Supreme Court, contending that by refusing to appoint a lawyer to represent him, the court had denied him the right to a fair trail. The Florida Supreme Court disagreed, and Gideon, in a handwritten document, appealed his case to the U.S. Supreme Court, which unanimously sided with him.

In the majority opinion, Justice Hugo Black explained the reason for the Court's decision: "Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyer they can get to prepare their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."

In 1966 the Court further spelled out the rights of the criminally accused in its opinion for the case Miranda v. Arizona. After being identified by the victim of a kidnapping and rape as the perpetrator of the crime, Miranda was interrogated by police officers. Miranda initially denied having committed the crimes, but after two hours of questioning, he confessed. The U.S. Constitution protects individuals from being compelled to incriminate themselves, and the Court in this case held that the atmosphere created by in-custody interrogation could be considered unfairly compelling. It therefore established new rules for the interrogation of the accused.

As Chief Justice Earl Warren wrote: "At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it--the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite atmosphere....Further, the warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege....

"The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights.

"In order to fully apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or had the funds to obtain one....

"Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease....If the individual states that he wants an attorney, the interrogation must cease until an attorney is present....

"If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel."

This decision was a close one--the justices voted 5-4. Several justices felt that these rules would needlessly hamper the work of the police and strongly disagreed with the decision. Justice John Marshall Harlan wrote: "There can be little doubt that the Court's new code would markedly decrease the number of confessions. To warn the suspect that he may remain silent and remind him that his confession may be used in court are minor obstructions. To require also an express waiver by the suspect and an end to questioning whenever he demurs must heavily handicap questioning. And to suggest or provide counsel for the suspect simply invites the end of the interrogation....

"In conclusion: nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities. The foray which the Court makes today brings to mind the wise and farsighted words of Mr. Justice Jackson in Douglas v. Geannette: 'This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.'"

Justice Byron White wrote: "An accused, arrested on probable cause, may blurt out a confession which will be admissible despite the fact that he is alone and in custody, without any showing that he had any notion of his right to remain silent or of the consequences of his admission. Yet, under the Court's rule, if the police ask him a single question such as 'Do you have anything to say?' or 'Did you kill your wife?' his response, if there is one, has somehow been compelled, even if the accused has been clearly warned of his right to remain silent. Common sense informs us to the contrary. While one may say that the response was 'involuntary' in the sense the question provoked or was the occasion for the response and thus the defendant was induced to speak out when he might have remained silent if not arrested and not questioned, it is patently unsound to say the response is compelled....

"In some unknown number of cases, the Court's rule will return a killer, a rapist, or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity."

Justice Tom Clark offered still another dissenting opinion: "I am unable to join the majority because its opinion goes too far on too little, while my dissenting brethren do not go quite far enough....Moreover, the examples of police brutality mentioned by the Court are rare exceptions to the thousands of cases that appear every year in the law reports."

These dissenting opinions do not carry legal weight, but they do offer a different perspective and a fuller understanding of the issues involved.


JUDICIAL ORGANIZATION IN THE UNITED STATES

U.S. SUPREME COURT

UNITED STATES COURT OF MILITARY APPEALS

UNITED STATES COURTS OF APPEALS

CIRCUIT COURT OF APPEALS FOR THE FEDERAL CIRCUIT

MILITARY COURTS

UNITED STATES TAX COURT

TERRITORIAL COURTS

91 DISTRICT COURTS

COURTS OF THE DISTRICT OF COLUMBIA

U.S. COURT OF INTERNATIONAL TRADE

U.S. CLAIMS COURT

FEDERAL REGULATORY AGENCIES

HIGHEST STATE COURTS -- STATE SUPREME COURT

INTERMEDIATE COURT OF APPEALS

MAJOR TRIAL COURTS

  • COUNTY COURTS
  • DISTRICT COURTS
  • CIRCUIT COURTS

MINOR TRIAL COURTS

  • MUNICIPAL COURTS
  • MAGISTRATE COURTS
  • POLICE COURTS
  • DOMESTIC RELATIONS COURTS
  • PROBATE COURTS
  • JUSTICE COURTS
  • OTHER COURTS


MEASURES OF JUDICIAL INDEPENDENCE

To evaluate better the legal systems of different countries, political scientist John Schmidhauser has identified several attributes associated with judicial independence. These measures are especially useful for comparative analysis and are described further in Martin Shapiro's Courts: A Comparative Political Analysis.

  • Functional separation of the highest judicial body from political branches of government.
  • Tenure of judges.
  • Irreducibility of salaries of highest judicial personnel.
  • Compliance with highest judicial decisions and court orders.
  • Enforcement of highest judicial decisions and court orders.
  • Foundation of highest judicial power (for example, constitutional, statutory, or dependence on political leader).
  • Extent of judicial review by highest judicial power (for example, guaranteed by constitution, limited to a few areas or nonexistent).
  • Cross-cultural representation on highest court (relevant in diverse societies).
  • High qualitative standards for selection of highest judges.
  • Fairness and objectivity in internal court procedures.
  • Probity and standards to prevent unfair financial, family, or political influence on the court.


COURTS IN VENEZUELA

Like the United States, Venezuela has a federal system. Its judicial system, however, is unitary, headed by a nine-member Supreme Court. The country is divided into 17 judicial districts, each of which has at least one superior court. Beneath the superior courts are the courts of instruction, which draw up indictments; municipal courts in every town; district courts with original and appellate jurisdiction in cases involving sums of money fixed by law; and courts of first instance which operate much like U.S. District Courts. There are also special courts dealing with labor and the military, key components of Venezuelan society. The Venezuelan judiciary has the power of judicial review, although it rarely exercises it.

Venezuela is proud that appeals to the courts challenging constitutionality began in the 19th century, well before the trend became common in Europe. Guaranteeing the independence of the judiciary was likewise a key concern of those who drafted the most recent constitution in 1961. But unlike U.S. practice, life tenure of judges has never been popular in Venezuela. Rather, judges on the Supreme Court are elected by the National Congress for nine years and terms of a third of them are renewed for three years. This feature allows for some continuity while limiting the role of politics on the court. The Constitution of 1961 also created a Council of the Judicature to ensure judicial independence and guarantee certain benefits to the judges. Because the Council enjoys constitutional status, it is a highly visible bulwark against political encroachments on judicial authority.

The Venezuelan judiciary has jurisdiction over legal controversies as well as administrative matters, for example, currency valuation and tax assessments. It provides recourse against illegal administrative acts and reparation to people injured by them. The courts also recognize the rights of citizens to reestablish the "personal, legal situation distorted by the administrative activity," guaranteeing the interests of those harmed by governmental actions. Personal property rights receive a great deal of attention in Venezuelan courts. Confiscations of property are expressly prohibited, and no one may have land expropriated without good cause, and then only with a prior judicial decision and payment of just compensation.

The Venezuelan judicial system is not without its problems. The legal profession has a rather negative public image because universities produce more lawyers than the system can absorb, which in turn prompts some of them to violate ethical standards for financial survival. But lawyers have always been closely involved with political development and were instrumental in crafting the current constitution, which has survived longer than most. As in most Latin American countries, the executive branch dominates the government. In Venezuela, however, respect for the rule of law is well established. The courts play a crucial role in safeguarding the constitutional rights of the people, a vital function in a constitutional democracy.


GLOSSARY

appeal -- to seek review from a higher court; some appeals are granted automatically, but most appellate courts exercise their own discretion over which cases warrant their review.

bench -- the collective term for all judges who serve on a particular court.

civil case -- arises from a dispute in which one party (an individual, group, or government) alleges in a lawsuit that it has been wronged by another party.

criminal case -- always prosecuted by the government, it involves a party charged with committing certain acts that society has defined as "criminal" in public law.

docket -- refers to judicial workload; it is the calendar prepared by court clerks listing the cases to be heard.

en banc -- a case heard by all judges who serve on a particular appellate court. The U.S. Supreme Court always sits en banc, while U.S. Courts of Appeals judges usually sit in three-judge panels.

jurisdiction -- a court's authority to hear a case; the case must fall within the subject and geographic area handled by a particular court and be brought by the proper parties.

mandamus -- "we command," an order issued by a higher court to a lower court or other government official to perform a certain duty.

stare decisis -- "let the decision stand," the principle of adherence to precedent in similar subsequent decisions.

writ -- a written court order commanding the recipient either to perform or not perform certain acts specified in the order.


BIBLIOGRAPHY

Abraham, Henry J. The Judicial Process. 6th ed. New York: Oxford University Press, 1993.

Ackerman, Bruce. The Future of Liberal Revolution. New Haven, CT: Yale University Press, 1992.

Agresto, John. The Supreme Court and Constitutional Democracy. Ithaca, NY: Cornell University Press, 1984.

Goldwin, Robert A., and Art Kaufman, Eds. Constitution Makers onConstitution Making: The Experience of Eight Nations. Washington, DC: American Enterprise Institute, 1988.

Katz, Alan N., ed. Legal Traditions and Systems: An International Handbook. New York: Greenwood Press, 1986.

Shapiro, Martin. Courts: A Comparative Political Analysis. Chicago: University of Chicago Press, 1981.

Waltman, Jerold L., and Kenneth M. Holland, Eds. The Political Role of Law Courts in Modern Societies. New York: Macmillan, 1988.


CONTACTS

Governmental

Administrative Office of the U.S. Courts
Thurgood Marshall Federal Judicial Building
1 Columbus Circle, N.E.
Washington, D.C. 20544
Telephone: (202) 273-1860

This agency examines administrative procedures and dockets of federal courts, collects data, and prepares reports and draft legislation relating to the federal court system.


Federal Judicial Center Research Division
Thurgood Marshall Federal Judicial Building
1 Columbus Circle, N.E.
Washington, D.C. 20544
Telephone: (202) 273-4070
Fax: (202) 273-4021

The Research Division studies different aspects of the courts' operations. It develops and conducts training programs for judges and judicial personnel, and designs and tests new technology for use in the administration of the courts.


U. S. Department of Justice
Main Justice Building
Washington, D.C. 20530
Telephone: (202) 514-2007
Fax: (202) 514-5331

The Justice Department includes numerous specialized divisions and is responsible for investigating and prosecuting federal crimes, representing the federal government in legal cases, and interpreting the laws under which the federal government operates.


Library of Congress Law Library
101 Independence Avenue, S.E.
Washington, D.C. 20540
Telephone: (202) 707-5065
Fax: (202) 707-1820

The Law Library maintains an extensive collection of international and comparative law literature covering all legal systems. Services include a public reading room staffed by legal specialists competent in 50 languages.


State Justice Institute
1650 King Street
Alexandria, Virginia 22314
Telephone: (703) 684-6100
Fax: (703) 684-7618

Established by Congress, the State Justice Institute awards grants to courts and agencies working to improve the administration of justice in the state courts.


Nongovernmental

Alliance for Justice
Judicial Selection Project
1601 Connecticut Avenue, N.W.
Washington, D.C. 20009
Telephone: (202) 332-3224
Fax: (202) 387-7915

This group monitors candidates for vacancies on the federal bench and provides independent reviews of nominees' records.


National Institute for Citizen Education in the Law
711 G Street, S.E.
Washington, D.C. 20003
Telephone: (202) 546-6644
Fax: (202) 546-6649

The Institute is an educational organization that works nationally and internationally to improve public understanding of the legal system, particularly through citizen participation.


World Peace Through Law Center
1000 Connecticut Avenue, N.W.
Washington, D.C. 20036
Telephone: (202) 466-5428
Fax: (202) 452-8540

Affiliated with the World Association of Judges, the World Association of Law Professors, and the World Association of Lawyers, the Center conducts research and prepares reports on international and comparative law and holds biennial world conferences.


About the Author: Susan Sullivan Lagon has taught in Washington, D.C., for a dozen years, most recently as an assistant professor of constitutional law at Georgetown University. Dr. Lagon holds a Ph.D in government and is a frequent lecturer in government and legal questions.


______________________


Project management and editing by the Institute for Contemporary Studies (ICS)
Vice President -- Kenneth L. Adelman
Editor -- Heidi Fritschel
The mission of ICS is to promote the self-governing and entrepreneurial way of life. Through its imprint, ICS Press, ICS publishes a wide range of books on public issues. For a catalog or more information, write: ICS, 243 Kearny Street, San Francisco, California 94102 USA.

Freedom Papers Series:
Editor: Howard Cincotta
Associate Editors: Jeanne S. Holden, Rick Marshall
Design: Linda A. Wray

July 1993

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