The independent judiciary that America enjoys is rare in the history of mankind and among all nations of the earth even at present.
We owe both our personal freedom and our economic prosperity to this independence. Individual freedoms depend upon access to a judge who cannot be removed from office for an unpopular decision.
America grants freedom even to those who burn our flag or promote the policies of countries and groups that have tried to destroy us. Commerce and other forms of economic progress also require independent judges. Parties to a contract have to be confident it will be enforced by a court of law, with no recourse to bribery or political influence.
Economic progress slows when that guarantee is taken away, as Hong Kong has witnessed in its sad regression from the promises of an independent judiciary made in 1997.
Politics influences how judges rule almost everywhere in the world. In America, we take strong steps to minimize that tendency. Our federal judges do not run for election. They serve for life. Congress cannot diminish their pay to punish an unpopular decision. These attributes are derided by thoughtless individuals, often complaining that “unelected judges” have ruled in a manner contrary to the popular view.
Thank God for unelected judges. We elect government executives and legislators. They express the popular will. That is not the function of the judges. If America had fashioned its federal courts to express the will of the majority, the courts would have been of no use for the unpopular, the unfunded, those without influence, who go to court precisely because they must rely on principle, not power.
In announcing our independence, our founders specifically identified as an element of King George’s tyranny that he had made judges “dependent on his will alone.”
Our courts have sometimes failed. They have, nevertheless, shown they can correct themselves.
In 1896, the Supreme Court allowed government to separate Americans on the basis of their race. Only one justice dissented from that decision. Justice John Marshall Harlan wrote: “But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law, [which] . . . takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”
In 1954, the Supreme Court overturned its 1896 decision that upheld racial segregation. The political branches had allowed segregation to prevail. It took an independent judiciary to reverse it.
During World War II, the court once again failed to uphold principle. The court allowed the arrest and detention of American citizens of Japanese descent, citing wartime concerns. Six justices upheld that government action. Three dissented, among them former Attorney General Robert Jackson, who saw the greater danger to our nation’s principles even during a war for our very survival.
Upholding the Japanese-American internment order “is a far more subtle blow to liberty than the promulgation of the order itself. . . . [O]nce a judicial opinion . . . rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
These are timeless words; a valuable caution for our own times when national security or restorative justice are invoked to use race to serve the politically popular view of the moment.
In 2018, the court unequivocally repudiated its wartime decision that denigrated Japanese Americans.
There is no more powerful person on earth than the president of the United States, as humans measure power. Yet the Supreme Court has often stood up to the president. Perhaps most famously, in 1974, the court ruled unanimously against President Richard Nixon when he tried to keep tape recordings from the Oval Office from being disclosed to a federal grand jury. The author of the opinion was Chief Justice Warren Burger, whom Nixon had appointed to the court. This is what we have a right to expect from an independent judiciary.
When the Supreme Court decides a case contrary to our preference, it is important that we resist labeling it political. A court opinion might be poorly reasoned, and we can try to overturn it in subsequent cases, but it is not helpful to call a decision partisan just because we do not like it. Calling a judge or justice “political” cheapens the unique value of our independent judiciary.
It is painful to lose in court. Give a bit more grace for disagreement, however, even more than we would to Congress or the president, for the sake of reinforcing the precious institution that is America’s independent judiciary.
Tom Campbell is a professor of law and a professor of economics at Chapman University. He was a law clerk to Supreme Court Justice Byron R. White and to U.S. Court of Appeals Judge George E. MacKinnon. He served in Congress for five terms, including being a member of the House Judiciary Committee.