Judiciary at Grave Risk

(Published in the Scranton Times-Tribune, Oct. 23, 2020)

In my former professional life I sometimes had the privilege of meeting with visiting foreign judges to teach them about the U.S. judicial system. I remember speaking with a group of Russian judges and was asked “Do your judges use the military to enforce their orders?”

“No,” I replied.

“Do they have their own police force?” the Russians asked. “No,” I said again. “They can call on the U.S. Marshals Service, but they don’t usually have to do that.”

“So how do your courts enforce orders?” the Russians asked incredulously.

“Most people comply on their own,” I said, “because we believe in the rule of law.” With the hearings underway to confirm Judge Amy Coney Barrett to the Supreme Court, I am reminded of this exchange, because I am afraid that the ensuing political fight could jeopardize one of the foundations of the rule of law — the independent judiciary.

The Founding Fathers had a well-balanced plan: They established two politically-elected branches — the legislative and executive — each with a role in making laws, and one nonelected branch — the judicial — to determine whether laws complied with the Constitution. To protect judicial independence and insulate judges from political concerns, the Constitution gave judges lifetime appointments and prohibited Congress from cutting judges’ salaries while they were in office.

Judicial independence was threatened early in our history, when the Democratic-Republican-controlled Congress impeached Supreme Court Justice Samuel Chase in 1804 on grounds that his partisan Federalist leanings influenced his judicial decision-making. But the Senate acquitted him because many Democratic-Republican senators believed that it was not appropriate to remove a judge from office just because they disagreed with the judge’s decisions.

Congress has not used its impeachment power since then to remove judges with whom it disagrees. And judges generally have avoided the appearance of partisanship. But the judicial appointment process has become increasingly politicized since the Senate rejected Robert Bork’s nomination to the Supreme Court in 1987. Judicial nominees no longer are assessed by the American Bar Association primarily for their judicial temperament and experience, but are chosen from lists approved by ideological advocacy organizations. The line between the political branches and the courts has been blurred, and the perception of nonpartisanship has been shaken. No matter one’s view of whether Supreme Court vacancies should be filled in a presidential election year, the Senate majority’s inconsistent handling of that in 2016 and now has added to the perception of partisanship in courts.

Even if Democrats don’t regain the White House and the Senate, some day, inevitably, they will. When that time comes, Democrats could take several steps to change the balance in the judiciary.

■ Congress could limit the judiciary’s jurisdiction, so that the courts can’t hear certain types of cases.

■ Congress could refuse to give pay raises to judges and limit the courts’ budget. The Constitution says Congress can’t reduce judges’ salaries, but it doesn’t say it has to give them raises.

■ Congress also could impeach judges whose decisions they don’t like. In the current climate, what’s to say that can’t happen again?

■ Most significantly, and under discussion, Congress could “pack” the Supreme Court by adding more justices. Could we some day see a Supreme Court with 13 justices, and then 15 when the political pendulum swings back, and then 17 when the pendulum swings again? And then what happens when precedents that were overturned by one Supreme Court get restored when the composition of the court changes again, so the law bounces back and forth like a ping pong ball depending upon which political party is in power?

It would be a mess. It would undermine the perception of judicial independence and render it meaningless. It would alter the checks and balances that the Founders carefully weighted into our system. It would reduce the federal courts to nothing more than a tool of the political branches. It would create instability in the law as precedents would get overruled and then restored with each shift in the ideological makeup of the bench. Moreover, it would weaken the Supreme Court and the federal judiciary as an independent branch of government. I hope enough Republican senators have a change of heart. I hope, like their Democratic-Republican predecessors some 215 years ago, they decide that protecting judicial independence and our Constitutional framework are more important than advancing ideological interests. I hope future presidents and senators can recognize the danger of politicizing the branch that the Founders tried to insulate from partisanship. And I hope the public, or at least most of it, will come to believe Chief Justice John Roberts when he says “we in the judiciary do not do our business in a partisan, ideological manner,” and “We don’t work as Democrats or Republicans.”

Because I hope the next time I speak with judges from Russia, I can still tell them that our system works because we believe in judicial independence and the rule of law.