Judicial Independence Day – June 12 – marks the passage of the Act of Settlement in England in 1701. For the first time, the King of England could not remove judges at will. Judges could be removed only by Parliament, and served for life during “good behavior.” This was an important step towards norms of judicial independence established in the United States.
Judicial independence is key to the integrity of our courts. At its core: the idea that judges are supposed to decide cases based on legal principles – established through statutes or case law – and not based on their own whims or political pressure.
Judicial independence is under assault in this country. The President attacks the federal judiciary. Over and over again. He does not just question the reasoning behind judicial decisions. He attacks the courts as an institution. He says the judiciary is “a joke” and “a laughingstock.” He calls the court system “broken and unfair.” He has challenged the authority of the federal courts and suggested they would be to blame for future terrorist attacks. He has suggested that the Ninth Circuit should be “broken up.”
The President questions the legal authority of judges, calling a judge who ruled against him as “this so-called judge.” He has attacked the legitimacy of a decision made by “a single, unelected district judge.”
Again, the President has not addressed the reasoning of decisions he does not like, but instead attacks judges personally.
The President does not acknowledge that the judiciary is a co-equal branch of government intended to be a check on executive power.
Around the country, state judicial elections have become politicized. After the U.S. Supreme Court decided the White decision, state law protections against politicization of judicial elections were thrown out the window. Judicial candidates have sought and run on endorsements from political parties.
Massive amounts of money have poured into judicial elections around the country. Two examples: In Pennsylvania, in 2015, 21.4 million was spent on three open seats. Over 5 million was spent in a North Carolina race in 2015. Significant amounts of “dark” monies have been spent by outside interest groups; the identities of the donors are secret.
There have been some ideological partisan judicial races in Minnesota in recent years. We have seen political party endorsements for judicial candidates. There has been some increase in spending on judicial races. But so far we have not seen the kinds of politicization and spending seen in other states.
We have something important to protect here in Minnesota. Judicial seats will be on the ballot this fall. As lawyers, our friends and family members will ask about the races. We should take every opportunity to explain the separate role of the courts and the need for judicial independence. We should look for these opportunities and act on them.