The End of Judicial Independence
12 min read
In December 1761, King George III dispatched an order to the American colonies. In a recent defiance of convention, some American colonial judges had been appointed for life, the same tenure that British judges enjoyed. Now the king intended to make it clear that all colonial judges were to serve only “at the pleasure of the crown.”
A wave of protest engulfed the colonies. In North Carolina, opponents of the decision spurned the order right up until the outbreak of the Revolution. In New Jersey, the governor disobeyed it and was promptly removed from office. In New York, the colonial assembly continued to argue that judges on its colony’s supreme court should have lifetime tenure. New York’s acting governor, Cadwallader Colden, who was sympathetic to the king, developed a grudge against the assembly that turned into what one historian called “almost psychopathic rage,” ending with him accusing the legislators of seeking to “obtain a most extensive power over the Minds of the rest of Mankind.” Four years later, a mob angered by unfair taxes, another symbol of arbitrary rule, hanged Governor Colden in effigy, smashed up his coaches, and threw the bits of wood into a huge bonfire on Bowling Green.
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Where did these intense feelings about judicial independence come from? A few colonists knew the work of the British political philosopher John Locke or the French essayist Montesquieu, especially their writings on the theory of separation of powers, which gives different branches of government the ability to check and balance one another, preventing any from accruing too much authority. But most people, probably including the mob that burned Governor Colden’s carriages on Bowling Green, wanted independent judges for the same reason they wanted a revolution: instinctive resentment of distant, arbitrary, illegitimate royal power.
That instinct stayed with them. In 1776, the Declaration of Independence accused the king of having “made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” A decade later, delegates to the Constitutional Convention of 1787, although bitterly divided about many things, stayed unified on the need for independent federal judges.
One South Carolina delegate to the convention thought judges’ salaries should be high, to attract “men of the first talents.” James Madison worried that if legislators could raise and lower salaries at will, then judges might be hesitant to rule against members of Congress. To solve this problem, he suggested pegging judicial salaries to the price of wheat “or some other thing of permanent value.”
Eventually, the Framers of the Constitution arrived at the system we have today. To preserve their independence, federal judges are nominated by the president but must be approved by the Senate. Members of Congress set judicial salaries, which cannot be reduced. Judges have lifetime tenure, so they don’t fear that they will be removed for any particular decision. They can be impeached by Congress for misconduct, but this is rare—only 15 federal judges have been impeached since 1789, all but five of them before 1937.
But in practice, they are also constrained by norms and conventions. Since the early 20th century, for instance, Congress has not dissolved federal courts whose judges displease it—which did happen in the more distant past. The idea of court packing has been considered out of bounds ever since Franklin D. Roosevelt tried and failed to reshape the Supreme Court in the 1930s by proposing to appoint up to six additional justices. Since 1957, when Dwight Eisenhower sent federal troops to Little Rock, Arkansas, to enforce Brown v. Board of Education, powerful politicians have mostly agreed to honor and enforce the decisions of the Supreme Court, a convention that had been flagrantly defied by several southern governors of that era. (It had been defied earlier, too, by President Andrew Jackson, who, when Chief Justice John Marshall ruled in 1832 that treaties made with the Cherokees must be respected, was alleged to have said, “Let him enforce it”; that quote is apocryphal, but Jackson’s sentiment was not.)
Ultimately, judicial independence has a more important protection: the character of the judges themselves. They have to avoid political influence. They have to base their arguments in the law. They have to at least try not to do the bidding of a president or governor. This might be the most important convention of all. Although fears of a politicized U.S. judiciary date back to the fights between the Federalists and the Jeffersonian Republicans in the very early days of the republic—and although they have reemerged at just about every important moment of social or political change—Americans in the modern era have generally assumed that judges appointed to the highest courts will act in good faith. The political philosophers of the early republic, the authors of the Constitution, and the law-school professors of the present day have all mostly assumed that federal judges will strive, in the words of Alexander Hamilton, to “unite the requisite integrity with the requisite knowledge.”
At least in recent times, few have imagined that federal judges who are well paid, unafraid of dismissal, and under no financial, legal, or political pressure of any kind would nevertheless seek to alter the law in egregiously partisan ways, not merely in support of conservative or progressive ideas, but in support of particular politicians, or in aid of their own careers. A recent Supreme Court decision on presidential immunity that appears designed to assist former (and possibly future) President Donald Trump; a Trump-appointed district-court judge who went against decades of legal precedent to shield the 45th president from the law—these must be taken seriously as signs that the independence of our courts is cracking, not because judges aren’t protected but because some judges are quite happy to serve “at the pleasure of the crown.”
Before I go further, let me make clear that I am not a legal scholar, a historian of the Constitution, or even a historian of the United States. I became interested in the origins of the independent judiciary because in 2015 I was living in Poland, where my husband is involved in national politics. (He is the foreign minister in the administration of Donald Tusk, a member of the Civic Platform party.) That year, a government with a legitimate, democratically elected parliamentary majority decided, with the cooperation of the equally legitimate president, to bring judicial independence to an end. Unexpectedly, this turned out to be extremely easy.
The political party that carried out this judicial coup is called Law and Justice (many noted the irony at the time), and its assault on the constitution had several elements. Among other things, the ruling party passed legislation in Parliament that forced older high-court judges into immediate retirement, a move that eventually gave Law and Justice the ability to appoint a large number of new judges (not unlike FDR’s plan to pack the U.S. Supreme Court). Law and Justice legislators created a new, unconstitutional body that had the power to investigate and sanction judges whose rulings displeased the government. When the Constitutional Tribunal (the Polish equivalent of the American Supreme Court) overruled one of the government’s laws, the prime minister refused to publish the ruling in an official court journal. In other words, she simply ignored it. And that was that: Nobody could force the prime minister or the governing party to obey the ruling.
The result was both confusion about the legitimacy of judges appointed under the new rules and a sharp rise in judicial partisanship. After a few years, it became common for anyone with a court case in Warsaw to assess their likelihood of winning not on legal grounds but according to which kind of judge was presiding. One of the “neo-judges,” illegitimately appointed by Law and Justice, might rule differently from one of the judges appointed according to the more neutral system that had been in place for the previous quarter century.
Some were shocked by the change. The strongest objections came from older people who had lived in Poland under Communism. Paulina Kieszkowska, one of the leaders of Free Courts—a group that organized protests, lobbied vigorously, and filed lawsuits in European Union courts against the so-called judicial reform—told me recently that the older protesters remembered “the concept of Stalinist and Communist judges, of verdicts which were totally politically driven, of heroic people being sentenced to death,” and they didn’t want that era back. Kieszkowska is the granddaughter of a Polish judge who resigned for political reasons. Like the American colonists, she and her colleagues had direct experience of living under rule by law—meaning the law is whatever the ruling party, the dictator, or the monarch says it is—as opposed to rule of law, when the law is enforced by courts loyal to the constitution, not to whoever happens to be in power.
But not everyone was attuned to the danger. I went to some of the first, spontaneous marches in favor of an independent judiciary and was struck by how few young people were there. The threat of a politicized judiciary didn’t, at first, seem to affect elections, or to move opinion polls very much either. Although the legal campaign led by groups such as Free Courts did have some success—EU courts found that Poland was in violation of European law—the truth is that the decline of the judiciary remained a distant, theoretical problem to the majority of Poles. Separation of powers was an abstraction that they just didn’t worry about.
Eventually, the politicized courts produced legal changes that affected people in real ways. In October 2020, the Constitutional Tribunal, which by then had been packed with highly partisan judges who had close ties to Law and Justice, narrowed Poland’s already strict abortion laws to a near-total ban. Following that ruling, doctors began refusing to give women abortions, even when their lives were in danger. Several women died.
Only then did younger people, especially younger women, react. They marched, they organized—and eventually they voted, in atypically high numbers, to oust the Law and Justice government. They were almost too late. The judicial system remains a tangled mess. Hundreds of neo-judges remain in place, their loyalties unclear, maybe even to themselves. Are they meant just to interpret the law, neutrally? Or are they there to express the will of the political party that appointed them? The Polish courts will be tainted by illegitimacy and treated with suspicion for years to come.
In the United States, even a dedicated, malevolent president and a venomous Congress would find it difficult to replicate the Polish experience. Life tenure for judges is written into the Constitution. No president could easily replace dozens of judges all at once, or establish an extraconstitutional body to exert control over them. Even making bipartisan compromises is no simple matter: President Joe Biden has proposed Supreme Court reforms, including possible term limits for judges, that are intended to be acceptable to everyone. But because this could require a constitutional amendment, or at least serious support from the Republican Party, the gesture will probably turn out to be symbolic.
But one element of the Polish experience might be relevant: the speed with which norms and conventions can shift, and the depth of the disorientation that can follow. Consider what we have seen or learned in just the past few months and years. Two Supreme Court justices were accepting large, undisclosed gifts from people who might have had an interest in their jurisprudence; the wife of one of those justices played a role in seeking to overturn the results of the 2020 election; more than one justice misled Congress during confirmation hearings about their intentions to overturn Roe v. Wade ; money and lobbyists have played an enormous role in the transformation of the Court; the Republican Senate leader Mitch McConnell broke convention to block one nomination and then enable another; and now that Republican-dominated Court has extended immunity to a Republican ex-president who has broken the law—all of this has had a cumulative and damaging effect. The Supreme Court and all other federal courts now appear to both halves of the polarized political spectrum to be weaker, more political, easier to manipulate, less bound to the Constitution. A Gallup poll conducted in July showed that a yawning gap has emerged between the 15 percent of Democrats who still approve of the Court and the 66 percent of Republicans who do. Overall, respect for the courts is at historic lows.
The peculiar case of Aileen Cannon might be a harbinger. The minimally qualified (per the American Bar Association) Judge Cannon, of the Southern District of Florida, has made a series of unprecedented and legally questionable decisions that seemed deliberately designed to help Trump, the president who’d appointed her, evade legal consequences for criminal acts. In mid-July, she dismissed Special Prosecutor Jack Smith’s case against Trump for sequestering sensitive national-security documents at Mar-a-Lago and lying about it to the FBI—a violation of the Espionage Act. Mainstream legal scholars consider Cannon’s ruling to rest on highly dubious grounds: that Smith should never have been appointed by Attorney General Merrick Garland in the first place, and that Smith was exercising authority he “did not lawfully possess.”
After this decision, Joëlle Anne Moreno, a legal scholar at Florida International University, told The New York Times that Cannon had “single-handedly upended three decades of established law historically used fairly and in a bipartisan manner.” Laurence Tribe, one of America’s preeminent constitutional scholars, wrote that Cannon’s decision amounted to “dropping a sledgehammer on the rule of law.” Cannon’s previous rulings had already earned her a harsh and unusual rebuke from the Eleventh Circuit Court of Appeals, and two of her more experienced colleagues—including the chief judge, a Republican appointee—on the Southern District bench had suggested that she hand off the Trump case.
Now imagine a second Trump presidency, during which dozens more Aileen Cannons are appointed to the courts—dozens more minimally qualified people who believe their role is to defend the president or avenge his enemies, not to defend the rule of law. Then imagine another president, a Democrat, elected in 2028, who feels no obligation to adhere to the decisions made by these highly partisan courts. Or imagine a contested 2028 election in which Vice President J. D. Vance backs insurrectionists attempting to prevent the lawful transfer of power, as he has said he would have done in 2020—when courts rejected dozens of claims from Trump’s legal advisers who sought to overturn the result. What if, in 2028 and 2029, courts were to rule in the opposite direction, with the intention of helping install an unelected president?
These are very small leaps of the imagination—in fact, they are hardly leaps at all. We are already living in a country very different from the one we inhabited a decade ago: An insurrectionist ex-president with multiple indictments now leads the Republican ticket, and much of the American public seems indifferent to the threat. The colonists of the revolutionary era had been ruled by a king and were determined not to be ever again, and some Poles remembered Communist justice and so fought to prevent its return. Americans today have no experience living with a federal judiciary whose rulings are based on allegiance to a particular politician or political party. Perhaps this has lulled us into a comforting it-can’t-happen-here quiescence. But as Tribe has said, we face the real possibility of “an imperial judiciary walking arm in arm with an imperial executive”: a new political order, one in which the laws and norms that have insulated America from dictatorship slowly degrade.
This article appears in the October 2024 print edition with the headline “The End of Judicial Independence.”
