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WITHOUT FEAR OR FAVOR
Judicial Independence and Judicial Accountability in the States
By G. Alan Tarr
Stanford University Press
Copyright © 2012 Board of Trustees of the Leland Stanford Junior University
All right reserved.
Chapter One Creating and Debating Judicial Independence and Accountability
CURRENTLY THE CONFLICT IN THE STATES OVER JUDICIAL INDEPENDENCE and accountability focuses on judicial selection and tenure. Historically, however, the debate in the states has been far broader, a continuing constitutional conversation about the role of courts and judges in a republican polity. This conversation has involved the character of the judicial function and the place of legal professionals and laypeople in the administration of justice. It has also addressed from whom judges must be independent and for what purposes, to whom they should be accountable, and how that might be accomplished without jeopardizing independence. The states have tried various answers to these questions, and even states that resolved these issues at one point in time later revisited them. Simply put, the history of judicial independence and accountability in the states has been not a steady progression toward a single ideal but rather a record of competing and diverse conceptions of independence and accountability, with the prevailing understandings changing over time and among the states. This chapter traces the conflict over the contested concepts of judicial independence and judicial accountability from the founding era to the mid-nineteenth century. Chapter 2 extends the analysis into the twentieth century with particular emphasis on judicial selection and judicial tenure, and Chapter 3 analyzes the current debate. Political practice and political debate in the states highlight the complexities of judicial independence and judicial accountability and, in so doing, provide the basis for understanding and assessing current claims and arguments.
Independent of Whom?
Before the American Revolution, colonial governors, selected by the Crown, appointed judges, raising concerns that those selected might be biased in favor of royal interests. Those receiving these patronage appointments served at the pleasure of the Crown rather than, like their counterparts in Britain, during good behavior, increasing fears that they might "pronounce that for law, which was most agreeable to the prince or his officers." Thus, the issue of judicial independence first arose in America in reaction to excessive executive control over—and possible manipulation of—the administration of justice. Thus the Declaration of Independence charges the king with "refusing his assent to laws for establishing judiciary powers," with making "judges dependent on his will alone for the tenure of their offices, and the amount and payment of their salaries," with "depriving us in many cases of the benefits of trial by jury," and with "transporting us beyond seas to be tried for pretended offenses."
The Declaration's indictment of the Crown, it should be noted, is framed not in terms of judicial independence but in terms of popular access to justice, understood as encompassing both the availability of judicial forums ("refusing his assent to laws establishing judiciary powers") and proper administration of justice within those forums. Proper administration of justice in turn required that trials be presided over by impartial magistrates (not "judges dependent on his will alone"), in venues subject to public scrutiny (not "beyond seas"), and with independent decision-makers who could be trusted to render impartial verdicts (not "depriving us in many cases of the benefits of trial by jury"). Insofar as the Declaration addresses judicial independence, it emphasizes freeing judges from subservience to an unaccountable executive whose interests differed from those of the general public. The Declaration thus left open whether making the judiciary answerable to the people, either directly or through their elected representatives, posed the same problems for the rule of law or for the impartial administration of justice. Or, put differently, it left open the relationship between republicanism and judicial independence.
Some early state constitutions contain stirring rhetoric on judicial independence. The Massachusetts Declaration of Rights of 1780, for instance, proclaimed it "the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit," and the Maryland Declaration of Rights of 1776 noted that "the independency and uprightness of Judges are essential to the impartial administration of justice, and a great security to the rights and liberties of the people." Although proponents of judicial independence never tire of quoting such provisions, the institutional arrangements under eighteenth-century state constitutions emphasized judicial accountability to state legislatures, as "short terms with election and reelection voted by the same lawmakers who set rates of compensation and paid their salaries made judges more dependent than independent." Indeed, those Massachusetts "judges as free, impartial, and independent as the lot of humanity will admit" could be removed upon a vote of two-thirds of the state legislature. In emphasizing judicial accountability to state legislatures, early state constitutions "represented the culmination of what the colonial assemblies had been struggling for in their eighteenth-century contests with the Crown."
State judges in the decades after Independence might be appointed by the executive, by the legislature, or by some combination of the two, but state legislatures generally dominated judicial selection (see Table 1.1). This legislative dominance is explicable on republican grounds. In most states, only legislators were directly elected by the people, and this—combined with their short term of office—encouraged the belief that the legislature embodied the people, whereas other branches did not. Given this understanding, legislatures seemed the safest repository of the appointment power. In addition, legislative dominance was a response to Americans' suspicion of executive power in general and of the executive appointment power in particular. As Gordon Wood has noted, "The power of [executive] appointment to offices" was perceived as "the most insidious and powerful weapon of eighteenth-century despotism." Thus, none of the initial state constitutions gave the governor acting alone the power to appoint judges. By 1800, two states—Delaware (1792) and Pennsylvania (1790)—authorized unilateral gubernatorial appointment, but seven continued to lodge the appointment power exclusively in the state legislature. The remaining states allowed the governor to appoint judges but required that appointments be confirmed by an executive council or the legislature. Even where governors participated in the selection process, their control over the composition of the bench was limited. For in several states the governors themselves were largely creatures of the legislature, chosen by it for short terms and dependent on it for their continuation in office, and this undoubtedly influenced their choices.
Once selected, judges remained under legislative scrutiny. "The Revolutionaries had no intention of curtailing legislative interference in the court structure and in judicial functions, and in fact they meant to increase it." During the colonial era, popular assemblies with some regularity "restored [losing litigants] to the law" by granting them a new trial, which served as a check on abuses by unelected judges. After Independence, those who lost in court might still appeal to the legislature for redress, and legislators could order new trials or pass private bills providing them with the compensation denied them at trial. This practice continued into the nineteenth century, with the Rhode Island Legislature overturning adjudicated verdicts almost to the Civil War.
Judges who issued unpopular rulings might be called before the legislature to explain their decisions. In 1786, for example, after the Rhode Island Supreme Court invalidated a law requiring creditors to accept paper money in payment for debts, its members were summoned before the legislature, and although the legislature took no disciplinary action, it refused to reappoint all but one of the justices when their terms expired. When all else failed, a legislature might get rid of judges by enacting "ripper bills" that abolished the judges' positions or the court on which they sat because the structure of state court systems typically was not entrenched in the state constitution. Thus in 1807, after the Ohio Supreme Court struck down a law extending the jurisdiction of justices of the peace, the legislature passed a resolution depriving the offending justices of their positions when their terms expired. New Hampshire twice legislated out of office all justices of the supreme court by repealing the statute that created the tribunal and establishing another court in its place. In New York in 1821, a new constitution reduced the membership of the supreme court from five to three, and the incumbents' positions were terminated when the constitution went into effect. And in Kentucky in 1823, the legislature, after failing to muster the two-thirds vote necessary to impeach justices who had invalidated a law providing for debt relief, abolished the supreme court and created a new one with new judges.
State constitutions guaranteed the people's representatives control over judges' continuation in office. One-third of eighteenth-century state constitutions established short terms of office for judges, ranging from one year in Vermont to a high of seven years in New Jersey and Pennsylvania (1776). Obviously, in those states the process of periodic reappointment, in which legislators played the central role, determined whether judges would continue in office. The remaining two-thirds of eighteenth-century state constitutions, reacting to the British imposition of service during the pleasure of the Crown, provided for judicial tenure during "good behavior." During the last quarter of the eighteenth century, one can detect a slight movement toward longer judicial terms—for example, Georgia in 1789 increased the term of office to three years, and Pennsylvania in 1790 adopted tenure during "good behavior." But even in the eleven states in which, by 1800, judges served during "good behavior," legislatures scrutinized the judiciary. We understand "good behavior" today as a synonym for life tenure, but during the early decades of the Republic, it was understood as a standard of conduct enforceable by the legislature. 17 Indeed, as a contemporary commentator noted, the nebulous character of that standard virtually invited legislators to apply it "according to disaffection on the one Hand; or Favour on the other."
The legislature might act against "misbehaving" judges through impeachment, and the grounds for impeachment under early state constitutions were considerably broader than those under the federal Constitution. States that defined impeachable offenses in their constitutions did so expansively. Thus New York (1777) and South Carolina (1778) permitted impeachment for "mal and corrupt conduct"; New Hampshire (1784) for "bribery, corruption, malpractice, or maladministration in office"; and New Jersey (1776) for "misbehavior." 20 Other states declined to define—and thereby limit—the grounds for impeachment. For example, in constitutions written after the US Constitution had limited impeachable offenses to "Treason, Bribery, or other high Crimes and Misdemeanors," Georgia (1789), Kentucky (1799), and Tennessee (1796) all provided for impeachment without specifying what offenses justified removal.
Several states supplemented impeachment with provisions authorizing the governor to remove judges upon address by two-thirds of the state legislature, with the gubernatorial role typically more ministerial than discretionary. Rather than merely duplicating impeachment, removal by address offered an additional—and potentially more far-reaching—weapon for legislative control. For one thing, the "address did not have to allege willful or criminal misconduct. It needed only a favorable vote by both houses, not an investigation or trial." Thus, judges were not guaranteed the basic elements of due process before they were removed. They did not have an opportunity to retain counsel, to cross-examine those accusing them, or to call their own witnesses. Early state constitutions did not even require a specification of the grounds for removal, although some later state constitutions mandated that the basis be "stated at length in such address, and on the journal of each house." Thus, the inclusion of removal by address in state constitutions potentially came close to service during the pleasure of the legislature (or at least an extraordinary majority of the legislature), although the guarantee of tenure during "good behavior" implied that some misconduct had to be alleged. Address allowed legislators to hold judges accountable not only in cases of clear wrongdoing, as might be reached by impeachment, but even in instances where their performance could not be characterized as "any misdemeanor in office." The Kentucky Constitution of 1799 made this clear, authorizing removal of judges by address "for any reasonable cause, which shall not be sufficient ground for impeachment." So too did the origins of the practice in England, where address served as a mechanism for inducing the king to remove unpopular ministers, serving as "a vote of censure and no confidence." In rejecting removal of federal judges by address, the delegates to the Constitutional Convention of 1787 indicated their understanding that removal by address potentially had greater reach than did impeachment. Thomas Jefferson agreed with the analysis but not the conclusion. He favored a constitutional amendment to permit removal of federal judges by the president upon address by Congress, insisting that "in a government founded on the public will, [judicial independence] operates in an opposite direction, and against that will."
The Removal of Judges
Although state legislatures maintained close oversight over the judicial branch, their removal powers threatened judges' decisional independence only if those powers were used to influence the substance of decisions or to penalize judges for their rulings. Often this was not the case. For example, New Jersey in 1782 impeached and removed two judges for corruption, and Massachusetts did the same for a justice of the peace in 1799. In 1791 Georgia impeached and removed a judge who misused his office to manipulate an election, and New Hampshire impeached a judge for "maladministration" based on unjustified absences from the court, though the judge resigned before he could be tried. Legislators in Massachusetts removed by address a judge after he was stricken with paralysis, and in 1805 legislators in North Carolina removed a justice of the peace by address for taking bribes and brawling with litigants. In that case legislators expressly recognized removal by address as a compromise between censure and impeachment.
However, state legislatures sometimes did employ their removal powers to advance political objectives or punish courts for their rulings. The use of impeachment for political purposes peaked at the state and federal levels during the first decade of the nineteenth century. This "most sweeping impeachment movement in American history" arose with the electoral triumph of the Republican Party, which prompted a campaign to drive Federalist partisans from the bench. This goal was pursued both wholesale, as in the repeal of the Judiciary Act of 1801, which removed judges appointed by President John Adams from the bench, and on a case-by-case basis against staunch Federalist judges via impeachment. For example, in Pennsylvania in 1803, the same year that Republicans in the federal House of Representatives launched impeachment proceedings against Supreme Court Justice John Pickering, the Pennsylvania Senate by a straight party-line vote removed Alexander Addison, an outspoken Federalist, from the bench. In 1805, the same year that the US Senate acquitted Justice Samuel Chase, the Pennsylvania Senate fell just short of the two-thirds majority needed to convict and evict several members of the state's supreme court.
In a narrow sense, the Republican aim was to remove those who had abused judicial office for partisan purposes and to chasten Federalists still on the bench. But in a broader sense, the Republican complaint was more fundamental. Tenure during good behavior, some Republicans complained, allowed a party in power to pack the bench with partisans who could frustrate efforts to introduce political change. Or, more positively put, tenure during good behavior prevented the appointment to the bench of judges who would reflect in a timely fashion changes in popular sentiment. As James Monroe noted in a letter to Thomas Jefferson, "The [Federalist] party had retired into the judiciary.... While in possession of that ground it can check the popular current which runs against them." From the Republican perspective, then, courts in a republican regime should reflect, rather than check, the current of popular opinion. As Thomas Jefferson wrote, "A judge independent of a king or executive alone is a good thing; but independence of the will of the nation is a solecism, at least in a republican government." Indeed, impeachment of judges had a distinctively popular cast, with constituents memorializing legislators demanding the removal of particular judges.
Excerpted from WITHOUT FEAR OR FAVOR by G. Alan Tarr Copyright © 2012 by Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of Stanford University Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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