The declaration of (judicial) independence

This year, the 250th anniversary of the Declaration of Independence also marks my 25th year of service as a federal judge. These dual anniversaries have given me occasion to reflect on the importance of an independent judiciary, a matter that deeply informs my work. History demonstrates that independence is necessary for the courts to withstand public pressure in performing their role in upholding the constitution and safeguarding equal justice.

The importance of an independent judiciary had its inception in the Declaration of Independence. One grievance of the American colonies was that the King had "made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries." The colonies wanted judges who would act independently of powerful rulers. When the founders framed the Constitution, they codified this independence, making the courts a co-equal branch of government with the power to place boundaries on the other branches if they violate the Constitution. And they gave federal judges lifetime tenure so they would be free from political influence.

The passage of the Civil War Amendments, including the Equal Protection Clause of the Fourteenth Amendment, enhanced the courts' constitutional role in safeguarding equal justice. As explained by the Supreme Court in United States v. Carolene Products (1938), "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." 

In this nation's legal history, the courts have risen to the occasion and fulfilled their role as enforcers of the Constitution and protectors of equal justice.

In Yick Wo v. Hopkins (1886), the Supreme Court struck down a law that effectively banned Chinese Americans from the laundry business. The Court found a seeming neutral law unconstitutional because it had an unequal impact and targeted a discrete minority. The Court similarly protected disempowered minorities in Strauder v. West Virginia (1880) finding a law barring Black citizens from juries violated equal protection; Brown v. Board of Education (1954) striking down a law mandating racial segregation in public schools; and Loving v. Virginia (1967), holding a law prohibiting interracial marriage unconstitutional.

At other times, the courts have failed in their duty to enforce the Constitution and safeguard equal justice. In United States v. Korematsu (1944), the Supreme Court upheld the internment of 120,000 Japanese Americans during WWII based solely on their ancestry. The Supreme Court deferred blindly to the Government's assertion that Japanese Americans posed a threat to national security. Had the Court required the government to support its claim with evidence, it would have found internal documents (including reports from the FBI, the FCC and Office of Naval Intelligence) that undermined the government's justification of military necessity. It wasn't until 1984, when these documents were discovered and presented to a federal court, that Korematsu's conviction was overturned. In that ruling, the judge cautioned that in times of hostility and antagonisms, the courts must "be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused." The 1984 Korematsu decision exemplifies judicial independence; the 1944 decision its failure.

Another such failure occurred in Plessy v. Ferguson (1896). The Supreme Court refused to invalidate racial segregation if the segregated accommodations satisfied the fictitious concept of "separate but equal." The Court's failure to exercise its independence and enforce the Constitution effectively cemented Jim Crow for decades.

The Court's historical failures are not only those of inaction. In Dred Scott v. Sandford (1857), the Court dismissed on jurisdictional grounds the lawsuit of an enslaved man seeking freedom. But the Court did not stop there. It went on to hold that the Missouri Compromise, which prohibited slavery in certain northern territory, was unconstitutional. The Court reasoned that the constitutional right to property prohibited Congress from banning slavery. In Dred Scott, the Court affirmatively enshrined slavery into an enduring constitutional principle--the Constitution not only permitted inequality, it required it and put it beyond legislative relief.

These cases underscore the importance of an independent and vigilant judiciary willing to enforce the Constitution and its promise of equal justice. While the appropriate scope of judicial intervention and the advisability of judicial deference under certain circumstances is and will continue to be debated, Korematsu demonstrates there is a cost when courts fail to scrutinize arguments and examine the facts. When a court forsakes its basic role as truth seeker, it risks injustice. As Plessy and Brown teach, the role of the courts as protectors of disempowered minorities against the excesses of the majority is an essential cornerstone of our Constitution. As Dred Scott illustrates, when courts enshrine inequality as constitutional mandate, it turns the Constitution on its head by mandating protection of the powerful at the expense of the powerless and establishing a ceiling rather than a floor for civil rights.

History shows an independent judiciary means little if the courts are unwilling to use that independence to enforce the Constitution. Two hundred fifty years in, the importance to our nation of an independent judiciary should be as clear as it was when the Declaration of Independence and the Constitution were written. The question now is how will the courts exercise that independence?