Protecting Fair and Impartial Courts Reflections on Judicial Independence
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58 Vol. 104 No. 2 What is an idependent judiciary? By David F. Levi Protecting Fair and Impartial Courts AN ADDRESS DELIVERED AT THE RENDELL CENTER Reflections on Judicial Independence SYMPOSIUM ON JUDICIAL INDEPENDENCE (PHILADELPHIA, OCTOBER 2019) BY DAVID F. LEVI ABOVE: A ROAD SIGN IN DECATUR, ILL., DEMANDS THE IMPEACHMENT OF U.S. CHIEF JUSTICE EARL WARREN, WHO SUPPORTED DESEGREGATION IN PUBLIC SCHOOLS (JUNE 25, 1963; ASSOCIATED PRESS). SYMPOSIUM PHOTOS ON FOLLOWING PAGES BY SAMEER A. KAHN, PROVIDED BY THE RENDELL CENTER. Judicature 59 I speak today about the number and sometimes per- importance of fair and sonal consequences — the impartial courts and the role public’s experience of the of judicial independence in Supreme Court and the entire achieving that goal. I begin federal court system. with two stories. Some years ago, I acknowledge that the my wife, Nancy, and I took a river kay- Court is important to this aking course on the American River in discussion because of its lead- David F. Levi Sacramento. The course turned out to ership role, because of the DIRECTOR, BOLCH JUDICIAL INSTITUTE AND be nothing short of terrifying, and I enduring salience of certain PRESIDENT, AMERICAN LAW INSTITUTE have tried to forget most of that expe- questions that appear on the rience, especially the part where the Court’s docket, and because it is easy to judges so arrayed, the experience would novice kayaker hangs upside down forget that the Supreme Court is unique destroy both the reality and the appear- about to drown or sustain a concus- in many ways and is not characteristic ance of fair, impartial, nonpartisan sion. But I did learn one thing that I of most judging in this country. courts. The reality and the appearance have remembered to this day: If there Here is my second story. I had a are in a constant feedback loop, and we is a large boulder that you must avoid, debate with Judge Richard Posner a few need to consider both in any discussion never look at it. If you do, your body years ago at Northwestern Law School. of independent and fair courts. will turn and you will collide with the I had reviewed his book How Judges Here is how I have organized my very thing you wish to avoid. Think somewhat critically. At the end talk: I begin by addressing why fair and In this conversation, there is one of our debate, he turned to me and impartial courts are important. I look boulder I particularly wish to avoid, at asked: “Does Dean Levi seriously think back at the Framers and distill certain least as we begin our trip down river: that it would make any difference if postulates about what makes for fair That boulder, if you will, is the United Republican-appointed judges wore red and impartial courts. (Spoiler alert: the States Supreme Court. If we even start robes and Democratic-appointed Framers were right.) I then explore to discuss the Court, the justices, and judges wore blue robes?” I said: “It three related topics that bear on the the confirmation process, it will attract would make a huge difference. And discussion: judicial discretion and judg- all or most of our attention and we may it would be terrible.” He responded: ment, the assertion that judges are no flip or at least lose the possibility of a “That just doesn’t cut it.” better than politicians in black robes, larger view. After all, the Court decides He got the last word, but I don’t think and the complexity added to the dis- fewer than 75 cases a year out of the he was right. Judge Posner was probably cussion of judicial decision-making nearly 360,000 federal criminal and thinking of the Supreme Court, possibly by judicial analytics and legal realism. civil cases, and nearly half of the Court’s of the federal appellate courts; I think I then turn to three threats to judicial cases are decided unani- his point may have been independence and to fair and impartial mously or nearly so and IF JUDGES WERE TO that everyone already judging. Each of these threats is mainly with little controversy. CONSIDER OR PRESENT knows the party of the to the independence of our state courts And, if we consider that THEMSELVES AS OF president who appointed and state judges. Each of these threats more than 100 million DIFFERENT POLITICAL the judge, so the color of runs directly counter to the vision of cases are filed in the state TEAMS BY WEARING THE the robe would not add the Framers as they structured the courts each year, a differ- TEAM’S JERSEYS, AND IF any information or have federal courts. ent focus for our inquiry PARTIES AND LAWYERS any additional effect. My starts to take shape. This WERE TO SEE JUDGES SO point was that if judges Why are fair and impartial courts is a staggering number ARRAYED, the EXPERIENCE were to consider or pres- and judges important? of interactions between WOULD DESTROY BOTH ent themselves as of Why are fair and impartial courts our fellow Americans THE REALITY and the different political teams important? And how does judicial and their judges and APPEARANCE OF FAIR, by wearing the team’s independence preserve fairness and court systems, inter- IMPARTIAL, NONPARTISAN jerseys, and if parties impartiality in our courts?” Perhaps the actions that dwarf — in COURTS. and lawyers were to see questions are too obvious. If you are an u 60 Vol. 104 No. 2 IT IS NOT POSSIBLE TO HAVE A SUCCESSFUL DEMOCRACY WITHOUT A FAIR AND IMPARTIAL originalist, the answers JUDICIARY, and IT IS Nor were they auton- personal will and preference on the are easy. The Framers NOT POSSIBLE TO HAVE omous. They were other. He saw the importance of cou- and the ratifiers con- A FAIR AND IMPARTIAL confined by law and by rageous judges to the preservation of sidered that a fair and JUDICIARY THAT LACKS the assent of the other individual liberty and to the ameliora- impartial judiciary — one INDEPENDENCE IN BOTH branches. Moreover, tion of oppressive legislation. Judges in that followed the law and of its ASPECTS. for much of their activ- this Republic, protected by life tenure, was not biased, parti- ity, they would be would unite integrity and fortitude to san, intimidated, or seeking preferment sharing the judicial power with citi- wisdom and knowledge of the law. And — was central to a republican form of zens through the jury trial, which has this knowledge of and fealty to the government. They believed that judicial such a prominent place in the Bill of law, gained through practice and study, independence was critical to fairness Rights and our traditions. would be the bulwark against judicial and impartiality. They thought of judi- Federalist 78 celebrated the separa- overreaching. cial independence in its two facets: the tion of powers and the independent Even if the authority of the found- decisional independence of the judge judiciary in often quoted language. ing generation were not enough, it from outside pressures or inducements Alexander Hamilton famously said: seems that, in fact and over time, their when deciding a case, and the indepen- “The judiciary . has no influence beliefs have proven themselves: Indeed, dence of the judicial branch as a whole, over either the sword or the purse; no it is not possible to have a successful as a separate branch of three. direction either of the strength or of democracy without a fair and impartial The Declaration of Independence the wealth of the society; and can take judiciary, and it is not possible to have prominently featured King George no active resolution whatever. It may a fair and impartial judiciary that lacks III’s attacks on both the judicial branch truly be said to have neither FORCE nor independence in both of its aspects. Are and the individual judge in its bill of WILL, but merely judgment; and must there examples of successful democ- particulars: “He has obstructed the ultimately depend upon the aid of the racies where the judicial function is Administration of Justice by refusing executive arm even for the efficacy of dependent or subsumed in the other his Assent to Laws for establishing its judgments.” And, he said: “[A]s lib- branches such that the judicial branch Judiciary Powers.” And: “He has made erty can have nothing to fear from the lacks institutional independence? Are Judges dependent on his Will alone judiciary alone, [it] would have every there successful democracies where for the tenure of their offices, and the thing to fear from its union with either the judges lack decisional independence amount and payment of their sala- of the other departments” — which but are routinely subject to pressure or ries.” The founders were steeped in is why separation and independence external command or inducement? The Montesquieu and other thinkers of the were so important. answer is “no.” late 17th and early 18th century, and Hamilton’s comments speak to us Americans need to have faith in the they came to believe that a “fair and even now. Judges should not by party independence, fairness, and impartial- impartial” judiciary was only possible or for any other reason be united to ity of our judges because they look to were it embodied in a separate judicial the other branches. Nor should they our courts as the place where they can branch and were the judges protected be involved on their own initiative get a fair shake whether their complaint in their tenure and compensation. and authority in the redirection of is with the government or a business or Article III of the Constitution reflects the wealth of the society.