Judicial independence

“ Some of the confusion in debates about Court reform may result from a blurring of these two different meanings of judicial independence—the unquestionable value of judges acting free from fear or favor and according to law, and the more complex issues raised by the relationship between the judiciary and the other institutions of our government. The question of how independent of the other branches the judiciary should be is not easy to answer. ”

“ Those who regard the independence of the States in all their reserved powers,-and this includes the independence of their legislative, judicial, and executive departments,-as essential to the successful maintenance of our form of government, cannot fail to view with the gravest apprehension for the future, the indictment, in a court of the United States, of a judicial officer of a State for the manner in which he has discharged his duties under her laws, and of which she makes no complaint. ”

“ In England, the independence of judicial power was produced, by delivering it from the influence of executive power, and exalting it to a dependence upon the will of the sovereign; in the United States, the independence of judicial power is destroyed, by delivering it from the will of the sovereign, and degrading it nearly to the level from whence it was raised in England ”

“ Upon this ground, it has been urged, that judicial independence of a nation, will not shield judges against partiality for a man or body of men in power, or against becoming instruments of usurpation in the hands of governments; and that trial by impeachment, was not calculated to suppress the passions of men, to ensure an impartial judgement, or to allay in the minds cf judges every apprehension of a man or body of men. ”

“ Rather, it seems to have been thought that summary power was necessary to preserve the dignity, independence, and effectiveness of the judicial process-'To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency.' In re Debs, 158 U.S. 564, 595, 15 S.Ct. ”

“ An elaborate argument, displaying much thought and extended research upon the part of counsel, has been made in support of the proposition that, upon general principles lying at the foundation of our institutions, the judicial power in the territories, exercised as it must be for the protection of life, liberty, and property, ought to have the guaranties that are provided elsewhere within the political jurisdiction of the nation for the independence and security of judicial tribunals, created by congress under the third article of the constitution. ”

“ The Judiciary "has no will, in any case"—no option but to execute the law as it stands. "Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing." ”

“ Indeed, Sir, allow me to ask again, if the national judiciary was not to exercise a power of revision on constitutional questions over the judicatures of the States, why was any national judicature erected at all? Can any man give a sensible reason for having a judicial power in this government, unless it be for the sake of maintaining a uniformity of decision on questions arising under the Constitution and laws of Congress, and insuring its execution? ”

“ Liability to answer to every one who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful. ”

“ The constitution has constituted courts professedly independent of state power in their judicial course; and yet the judgments of those courts are to be vacated, and their prisoners set at large under the power of the state courts, or of the state laws, without the possibility of protecting themselves from its exercise. ”

“ History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures. ”

“ By the constitution the judicial power extends to questions of personal liberty, and its exercise in that respect cannot be interfered with by Congress.
Congress, having the right to establish the tribunals, must give to them such an organization as will enable them to exercise completely the judicial power created by the constitution. A tribunal is not constituted unless it is endued with the active powers necessary to the exercise of its jurisdiction. ”

“ Will we have liberal or conservative courts? They knew that the courts, like the Constitution itself, must not be politicized; they knew that the question was, and is: Will we have government by the people? And that's why over the years both progressive and conservative judges have understood the importance of judicial restraint-the principle that says the highest exercise of judicial duty is to subordinate the judge's private views to what the law permits or determines. ”

“ It is indeed a singular misconception of the nature and character of our constitutional system of government to suggest that the settled distinction which the doctrine just stated points out between judicial authority over justiciable controversies and legislative power as to purely political questions tends to destroy the duty of the judiciary in proper cases to enforce the Constitution. ”

“ Grant that this interpretation of the Constitution results in conflicts between State and Nation and even deprives the "general government ... of the power of executing its laws and treaties"; even so, "the defects of our system of government must be remedied, not by the judiciary, but by the sovereign power of the people." The Constitution must be amended by the people, not by judicial interpre [Pg 160] tation; [408] yet Congress, in Section 25 of the Judiciary Act, "attempts, in fact, to make the State Courts Inferior Federal Courts." ”

“ The same spirit, which had operated in making them, would be too apt to influence their construction; still less could it be expected, that men, who had infringed the constitution, in the character of legislators, would be disposed to repair the breach in that of judges. Nor is this all. Every reason, which recommends the tenure of good behaviour for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. ”

“ There are, in my opinion, substantial reasons against such a provision: the most discerning cannot foresee, how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of National causes; whilst every man may discover, that Courts constituted like those of some of the States would be improper channels of the Judicial authority of the Union. ”

“ Were the votes on the adoption of our present constitution now offered here to prove that it was or was not adopted; or those given for the governor under it, to prove that he was or was not elected; we could not receive the evidence ourselves, we could not permit it to pass to the jury. And why not? Because, if we did so, we should cease to be a mere judicial, and become a political tribunal, with the whole sovereignty in our hands. Neither the people nor the legislature would be sovereign. We should be sovereign, or you would be sovereign ”

“ If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty. ”

“ It seems, however, a necessary incident of our political institutions. They are built upon the foundation of a profound reverence for the rights of the individual and of the equality of all before the law. Our Constitutions guaranty every man against deprivation of life, liberty or property without due process of law. If we could count on having as judges of our trial courts none but men of ability, learning and independence, it might be safe to leave it to them to say what this due process was. ”

“ Just as the learned gentleman is glorying in the supremacy of the Judicial body of the United States over Congress, Presidents, and Legislatures, the course of events exhibits that Supreme Court as a mere nullity in the body politic, unable to take cognizance, or unwilling to act in regard to matters which are tearing the Constitution into atoms. ”

“ They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the Judicial tribunals to adhere to the latter and disregard the former.
It can be of no weight to say that the Courts, on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the Legislature. ”

“ Many of those who charge the judiciary with having usurped the power to determine whether a particular enactment does or does not conflict with the fundamental and supreme law as established by the people themselves, would now place a far greater power in the hands of the courts by authorizing them to expand or contract a constitution by judicial construction, and would thus in reality vest in the judges an arbitrary discretion. ”

“ One desirable result of this doctrine that the courts when regularly invoked can and should refuse effect to an unconstitutional statute is that it ensures to every person, not in the military or naval service, the right to test in the judicial courts the authority of any official to interfere with his person, liberty, or property, whatever authority, executive or legislative, the official may plead. ”

“ It is, in short, no impediment in any case that this judicial power may condemn acts of men exercising political power which work a prejudice to the rights of any juridical or natural person suing for justice. If the rights imperilled be of a civil nature, entitled to protection under the principles of the Constitution and capable of being protected by the ordinary operation of known and established judicial remedies, the jurisdiction is perfect. ”

“ It is, of itself, a sufficient and conclusive answer; for no one will suppose that a government which has now lasted nearly seventy years, enforcing its laws by its own tribunals, and preserving the union of the states, could have lasted a single year, or fulfilled the high trusts committed to it, if offenses against its laws could not have been punished without the consent of the state in which the culprit was found. ”

“ The independence of judges is one of the most favorable circumstances to public liberty; for when they become the slaves of a venal, corrupt court, and the hirelings of tyranny, all property is precarious, and personal security at an end; a man may be stripped of all his possessions, and murdered, without the forms of law. Thus it appears that all parts of this system arise ultimately from the people, and are still independent of each other. There are other restraints, which, though not directly named in this Constitution, yet are evidently discerned by every man of common observation. ”

“ Nothing more was done by the constitution than to extend the judicial power of the United States to specified cases and controversies; leaving to congress to determine whether the courts to be established by it from time to time should be given exclusive cognizance of such cases or controversies, or should only exercise jurisdiction concurrent with the courts of the several states. ”

“ But a judicial power in society was also necessary, and out of the constitutional limitation of legislative power, the Supreme Court has very ingeniously extracted for itself, a power to defeat the constitutional limitation of legislative power, by asserting, that their assent to a law, though unconstitutional, will make it obligatory. ”

“ When we observe the importance, which that constitution attaches to the independence of judges, we are the less inclined to suppose, that it can have intended to leave these constitutional questions to tribunals, where this independence may not exist, in all eases where a state shall prosecute an individual, who claims the protection of an act of congress. ”

“ But a judicial sovereignty over constitution and law, without responsibility to the national sovereignty, is an unprincipled and novel anomaly, unknown to any political theory, and fitted to become an instrument of usurpation. If judicial power was intended to be advanced from municipal to political quality, responsibility ought to have followed the advancement according to the elements of our policy ”

“ Judicial adherence to the doctrine of the separation of powers preserves the courts for the decision of issues, between litigants, capable of effective determination. Judicial exposition upon political proposals is permissible only when necessary to decide definite issues between litigants. ”

“ No man can deny the necessity of a judiciary to interpret the constitution and laws, and to preserve the citizens against oppression and usurpation in civil and criminal prosecutions. Does it not follow, that, to enable the judiciary to fulfil its functions, it is indispensable, that the judges should not hold their offices at the mere pleasure of those, whose acts they are to check, and, if need be, to declare void? ”