ATTACK ON AN INDEPENDENT JUDICIARY
The Hon. Richard B. Sanders
Washington State Supreme Court
Thank you for inviting me back once again. I would like to talk about an independent judiciary, what it is, why we need it and how it is under attack. After this we’ll take time for a Q and A.
I might begin by stating that the founding fathers thought an independent judiciary was fundamental to our liberty, and they were worried about creating it, and preserving it. One of the specific grievances against King George set forth in the Declaration of Independence was He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.
Many of the founders were themselves lawyers, Thomas Jefferson and John Adams, for example. They were used to the English system of courts, judges and laws and attempted to both imitate and improve on that system. They were influenced by the political philosophers of the day including John Locke and Baron De Montesquieu.
The constitution established the judiciary as a separate department of government in Article III, simply stating
The judicial power of the United States, shall be vested in the Supreme Court…
No effort was made to define that judicial power; however, it was apparent that it was a separate and distinct power from the other branches, and the constitution forbade the other branches from trenching on the judicial power. Justice Scalia has attempted to define the judicial power by saying it is the power to do what courts have traditionally done. Fundamental to that power is the authority to declare what the law is. Courts are not there to create law, but to apply existing law to specific facts which arise in the context of specific cases and controversies. Courts also have the role to fashion appropriate procedures to do their business, and remedies to redress violations of the law. Traditionally those remedies may include criminal sentences within legislated maximums, setting bail, awarding money damages and granting injunctions in civil cases.
Arguing for adoption of the Federal constitution in 1787 a series of articles appeared in the popular press, which we now know as the Federalist Papers. Alexander Hamilton wrote number 78 on the judiciary.
The founders saw the judiciary as the weakest of the three branches because it cannot legislate laws which apply to everyone, or undertake executive action, or proactively do anything outside the context of deciding specific cases not of its making. Hamilton said in the Federalist:
…the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.
Hamilton may have recalled that passage in the Declaration of Independence when King George was accused of undermining the independence of the judiciary by firing judges, or docking their salary, etc. The founders saw an independent judiciary as essential to liberty because only an independent judiciary would empower individual citizens against lawless practices of the legislature—lawless because it violated the constitution—and the executive, lawless because it was contrary to the law of the land.
Hamilton then quoted Baron de Montesquieu:
…there is no liberty, if the power of judging be not separated from the legislative and executive powers
And then he added:
And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments…The complete indigence of the courts of justice is peculiarly essential in a limited constitution.
James Madison later argued in favor of adding a Bill of Rights as the first ten amendments to the constitution:
Independent tribunals of justice will consider themselves in a peculiar manner the guardians of these rights; they will be an impenetrable bulwark against every assumption of power in the legislature or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.
So the founders saw the judiciary as the empowerment of the individual against the power of the state and wanted to secure its independence to achieve that end—to bring us justice under the rule of law, and liberty by applying the rule of law to the government as well. An independent judiciary was therefore a check on the power of the other branches of government, just as those branches checked each other. In the words of Montesquieu:
It is necessary from the very nature of things that power should be a check to power.
I think these founding fathers were idealistic but also practical. They not only believed in liberty, but also set out to structure governmental institutions which would best preserve it. The founding fathers of our state in their 1889 Constitutional Convention were cut from the same cloth and viewed the judiciary much the same as our national fathers.
In summary, an independent judiciary is a judiciary, which is separate, and apart from the other branches of government which exclusively exercises the judicial power. Although an independent judiciary may still make mistakes, it is not threat to liberty—moreover, according to the founders, there can be no liberty without it. The judiciary replaces the arbitrary rule of men with the rule of law, and, unlike the other branches of government, is exclusively interested in preserving the legal rights, including the right to liberty, for each individual. Article 1, Section 1 of the Washington Constitution may set forth the judge’s job description:
…governments derive their just powers from the consent of the governed and are established to protect and maintain individual rights.
But as I guess you can infer from the title to my speech, the role of the judiciary as an independent guardian of our legal rights is under attack. I think that attack comes from the old enemies, the legislature and the executive, but I would add attack is aided by public apathy and misunderstanding, as well as judicial cowardliness to stand its ground and protect its turf.
The legislative attack on judicial independence has taken several forms. The legislature has attempted to appropriate judicial powers unto itself; and it has attempted to replace the judiciary with administrative tribunals which seem like courts but are really just extensions of the executive branch.
For example the judiciary has traditionally conducted criminal sentencing within legislated maximums so as to make the punishment fit the crime and, importantly, the individual criminal. But through a series of laws mandating minimum sentences, the hands of the judge to render a just sentence are increasingly tied. The most profound example of this is the Three Strikes law, which makes the maximum sentence of life without possibility of parole the mandatory minimum as well.
The legislature has also passed laws, which infringe on the traditional judicial function of setting bail.
Sometimes the legislature even wants to rewrite the rules of evidence—a traditional judicial function—by allowing in child hearsay statements which would otherwise be inadmissible under traditional evidence rules. Remember a hearsay statement is not subject to cross-examination because the person testifying cannot testify to its truth—only that somebody else said it. Beyond that the legislature bans cross-examination in certain cases of a victim’s past sexual history even where relevant to the pending charges or the truthfulness of her testimony.
The legislature limits the right of a person unlawfully confined to seek release through a writ of habeas corpus, by putting time bars and procedural limits on the authority of the court to even hear the writ on the merits.
Efforts are also made through so called tort reform to limit the judicial function of setting and ordering adequate money damages be paid to compensate for losses sustained when legal rights are violated.
A net work of administrative tribunals is set up which is controlled by the executive; not the judiciary with only limited judicial review. Sometimes these tribunals are fair to the litigants, but other times they are like trying to talk a policeman out of a ticket.
The most shocking example of the legislature trying to undermine an independent judiciary however are recent laws passed or under consideration vesting authority in the President to fight terrorism through extrajudicial means. The power of the courts to oversee the issuance of warrants on probable cause is undermined, and thus the right to privacy is eroded. The right to public scrutiny of open trials is curtailed, so the public is denied knowledge necessary to watchdog its own government. Purportedly Patriot Act II, soon to be proposed, will allow the President to strip one of his citizenship with trial. This is extremely important because citizenship is the right to have rights. And it will allow secret detention and extradition of US citizens to face trial in foreign countries without an extradition treaty. The first Patriot Act was passed with no debate and probably without many members of Congress even bothering to read it. Parts of Patriot Act II will make sunseted provisions of Patriot I permanent.
Then there is the executive himself. The President is now holding Americans without trial or criminal charge; even denying them contact with an attorney. He is imprisoning foreign nationals outside the territorial borders of our country—where the jurisdiction of federal courts does not reach. He is asserting more and more power unto himself to act as prosecutor, judge and jury in the name of national security—or, ironically, preserving freedom.
I can give you the details of some of these cases during question time if you like, but suffice to say, the executive asserts the right to designate anyone as an enemy combatant, without meaningful judicial review, and then imprison them, perhaps even torture them for information.
The President asserts the right of extrajudicial execution—witness the predator drone/ hellfire missile attack on innocent Afghan civilians on February 4, 2002, and the later attack in Yemen.
The President states that if trials of some prisoners are to held at all, the trials may take place in special military tribunals under procedures far short of what is required in civilian courts which assure justice to the accused and protection against government misconduct.
If innocents are hurt through executive action it is dismissed as collateral damage, or as Secretary of Defense Donald H. Rumsfeld put it, "stuff happens." By contrast in the judiciary every measure is taken not only to protect the innocent but also preserve the rights of even the guilty, and prohibits inhumane treatment of prisoners not to mention torture. .
Yes, I am concerned about this war on terrorism, a war which takes more innocent life than the supposed terror we are fighting, and which destroys our liberty. I wonder if we might be better off, much better off, if we dealt with terrorists as who they are, criminals, and looked to law enforcement, prosecuting attorneys, and an independent judiciary as the preferable way to deal with them, and the best way to protect the innocent, and our liberty.
Notwithstanding the efforts by the legislative and executive branch to undermine judicial independence, I save my strongest criticism for the courts themselves. It is only natural that the legislature and executive would attempt to enlarge their power at the expense of another branch, but for the judiciary to simply capitulate is not so understandable. Yet again and again we read judicial opinions which claim some virtue in deferring to the presumed legality or constitutionality of legislative or executive action. We allow the legislature to exempt its bills from the people’s power of referendum—like the Mariner’s stadium—by simply asserting a public emergency. Federal courts allow men to remain incarcerated in military prisons presuming that the President has acted appropriately, without even hearing from the prisoner or allowing his lawyer to visit him. Sometimes courts claim this is judicial restraint—but is it not really the ultimate judicial abdication of the first duty to independently declare what the law is?
So why am I telling you this? Are not we justified in looking to our constitution, our lawyers and our courts to protect or legal rights and our liberty? Here is what Judge Learned Hand said of that:
What do we mean when we say that first of all we seek liberty? I often wonder whether we rest our hopes too much upon constitutions, upon laws, upon courts. These are false hopes, believe me, these are false hopes. Liberty lies in the hearts of men and women; and when it dies there, no constitution, no law, no court can save it."
Thank you for sharing your lunch with me, I hope I’ve cheered up your day.