Massive street protests erupted in the Romanian capital of Bucharest this weekend, after the country’s ruling Social Democrat party announced an emergency decree that would strip prosecutors of much of their power, and remove oversight of a prosecuting unit that investigates the judiciary. The party has alleged that the reforms are necessary to prevent “abuses” by the judiciary. Critics say the move is designed to intimidate judges and compromise judicial independence and the rule of law.
I am delighted to present our first guest post, from my colleague Lawrence Friedman.
Successful lawyers excel at framing arguments. And for no lawyer in the United States is this skill more important than Chief Justice John Roberts. All of the justices of the Supreme Court seek to frame issues in ways that makes the results they reach seem inevitable. But only the chief justice speaks with the authority of his office outside the confines of the Court’s written opinions, opportunities that he seeks to maximize to ensure all of us that, regardless of how they rule in particular cases, the federal courts are just going about their business.
Consider two recent examples. The first is the chief justice’s response to President Trump’s belief that judges rule against his administration on the basis of politics. The chief justice would have none of it. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
In each of these three sentences, Roberts essentially made the same point: federal judges are independent of politics and treat all who come before them equally. Note that Roberts did not dispute that federal judicial appointment process is political. Rather, he framed the issue in terms of what judges do after that process has ended.
The second example comes from the Chief Justice’s 2018 Year-End Report on the Federal Judiciary. This annual update on the workload of the federal courts typically addresses a recent issue of note to the federal court system. All government reports should be so readable.
This year, the Chief Justice begins by recounting Justice Louis Brandeis’s effort, in 1928, to draft a dissent in Olmstead v. United States—an opinion that foreshadowed a doctrinal change nearly four decades later to the judicial understanding of the Fourth Amendment’s privacy protections.
The Brandeis story captures the way in which the courts work – by reasoning their way to particular conclusions – and the nature of doctrinal change over time. And the story highlights the importance of judicial law clerks. Clerks are recently-graduated law students who assist the federal judiciary at all levels in resolving cases by providing research and drafting assistance.
But the story is not just about the importance of this resource to the judiciary. It also frames the Chief Justice’s report on the efforts of the Federal Judiciary Workplace Conduct Working Group to determine the changes needed to judicial conduct codes to ensure that they adequately reflect concerns for confidentiality, mechanisms for reporting misconduct, and processes for investigating complaints.
As written, the report achieves its purpose. Members of Congress and the general public who take the time to read it are likely to be satisfied with the judiciary’s management of conduct issues and conclude there is no need for monitoring from outside. The judiciary, in other words, can take care of itself.
The point here is that, unlike his colleagues, Chief Justice Roberts must always keep an eye on the federal judiciary’s institutional reputation. The independence of the third branch is more fragile than that of the other departments of the federal government. The courts are possessed, as Alexander Hamilton famously put it, of neither the purse nor the sword. Congress, for example, controls not just the judiciary’s budget, but both the number of judges at every level and their jurisdiction.
We live in a time when the President of the United States regularly belittles the institutions of democracy, a time when serious proposals are being floated in the new House of Representatives to expand the number of Supreme Court justices to counter the perceived effect of recent appointments. Given his recent statements, the Chief Justice appears to be acutely aware that the federal judiciary’s independence, and popular respect for its rulings, turns on the extent to which the people believe that judges, once appointed, have no side to take in particular cases, and can keep their own house clean. If the pitched battles over Brett Kavanaugh’s appointment and partisan gerrymandering are any guide to the future, the chief has his work cut out for him.
Lawrence Friedman teaches constitutional law at New England Law | Boston and is the author, most recently, of Modern Constitutional Law.
The National Constitution Center has posted video of its entire program on Judicial Independence and the Federal Courts. It features an all-star group of panelists. I started watching a bit of the second panel (moderated by Jeffrey Rosen), and it is terrific. I will surely watch all three panels in short order. Highly recommended.
A second Venezuelan judge in the last fourteen months had fled the country, further exposing the Maduro regime’s efforts to exert total control over the state’s judiciary. Christian Zerpa, a former party loyalist who was recently appointed to the Venezuelan Supreme Court, surfaced in Florida after his defection and gave a taste of the regime’s interference with the judicial process.
Zerpa surfaced publicly in Miami on Sunday, describing how he received directions from the influential first lady Cilia Flores on how to rule in politically sensitive cases.
As a newly installed justice, he recounted being summoned to the court and told to sign off on a key ruling without first reviewing its details. It disqualified three elected representatives of Amazonas state from taking their seats in congress following the opposition’s sweep of legislative elections in 2015.
The key ruling cemented Maduro’s power, preventing the opposition from amassing a two-third super majority that would have severely curtailed Maduro’s power.
Zerpa apologized for propping up Maduro’s government as long as he did, saying that he feared being jailed as a dissident where his life would be put at risk.
“I will not be able to return to Venezuela,” Zerpa said. “I am a dead man.”
Sort of, according to this wonderful article in the Japan Times. It relates how the Japanese courts, operating under the country’s nascent constitution in 1891, refused to bow to political pressure in Japan’s own “trial of the century.” And the Czar-to-be played an important cameo role.
Continue reading “Does Japan owe its tradition of judicial independence to Czar Nicholas II?”
The latest ABA essay on judicial independence comes from Justice Ming Chin of the California Supreme Court.
In its latest move against the Poland’s increasingly restrictive judiciary laws, the European Union has asked its top court, the European Court of Justice, to suspend a recent Polish law that would force the retirement of more than one-third of its top judges.
The body said in a statement that “the Polish law on the Supreme Court is incompatible with EU law as it undermines the principle of judicial independence.”
Poland’s law on the retirement of judges at the Supreme Court put 27 of 72 judges at risk of being forced to retire, the Commission said, with no clear criteria on who can stay.
The Commission gave Warsaw a first warning in July, when the law took effect, and followed it up with another step in August before taking Monday’s decision.