The Norman Transcript

May 1, 2013

Does judicial independence matter to us?

By Lori Walkley
The Norman Transcript

NORMAN — “The law makes a promise — neutrality. If the promise gets broken, the law as we know it ceases to exist.’’

— Supreme Court Justice Anthony M. Kennedy

Judicial independence is a simple concept. It means that judges decide cases fairly and impartially, relying only on the facts and the law.

Although all judges do not reason alike or necessarily reach the same decision, decisions should be based on the evidence and the law, not on public opinion polls, personal whim, prejudice, fear or interference from the legislative or executive branches or from private citizens or groups. See, it really is an easy concept, right?

Judicial independence has been a core political value in the United States since before the drafting of our Constitution. Alexander Hamilton, in urging ratification of the constitution of the United States, took as obvious the need for a “steady, upright and impartial administration of the laws by a judiciary of firmness and independence.”

“‘Liberty,’ he said, ‘would have everything to fear from (the judiciary’s) union with the legislature or the executive.’” — The Federalist: No. 78

The judicial branch was established in the U.S. Constitution as a co-equal third branch of our government. The primary purposes of the judicial branch are to solve disputes by making fair and impartial decisions based upon facts, uphold the rule of law and protect our rights.

Public confidence in a fair court system is as necessary for our democracy to operate effectively as are fairly elected executives and legislators.

Because of this important function, judicial independence is one of those laudable virtues that is praised on Law Day.

However, it is often resented when practiced. Since judges must often decide sensitive issues, virtually certain to displease at least half of the participants, that resentment often erupts into attacks that can be politically explosive. This circumstance is nothing new.

For example, Franklin D. Roosevelt attempted to revamp the United States Supreme Court so he would obtain more favorable decisions on his New Deal legislation. In 1954, the “Impeach Earl Warren” signs were everywhere after the Brown v. Board of Education decision.

Individual judges also have been criticized as part of a political, social or financial agenda. I’m sure we all remember the Terry Schiavo case in Florida. These assaults have, at their core, a desire to undermine judges’ independence and thus to undermine the very foundation established by our Constitution.

Justice Sandra Day O’Connor said, “Judicial independence does not just happen all by itself. It is tremendously hard to create and easier than most people imagine to destroy.”

Can you imagine a judicial system that is beholden only to big financial interests or to political variances? What if the justice in your case is decided by the political party in the majority, rather than based upon the individual facts in your case?

Not possible? Oh, but this scenario has been attempted many times throughout our history. A favorite quote of mine on this issue comes from former Rep. Tom Delay who, when calling for the impeachment of judges who issue decisions Congress doesn’t like, said, “an impeachable offense is whatever a majority of the House of Representative considers it to be at a given moment in history.”

Can you imagine the instability of a plan like that? Fortunately these scenarios, like that of Franklin D. Roosevelt’s court packing plan, have all come to nothing.

Despite the media coverage of alleged public outcry at judicial decisions or the politically motivated breast-beating we are often exposed to, it is evident that most of us know that while it is not perfect, it is the best and most fair system in the world.

My guess is that most of us are too smart to let one of our pillar’s fall. So, perhaps, the virtue of judicial independence is not just a virtue lauded on Law Day but treasured by most of us every day. With gratitude.

Lori Walkley serves as a district judge in Cleveland County. This article is part of a series from the Cleveland County Bar Association in honor of Law Day 2013.

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