Commentary: Judicial independence: Our freedom depends on it

Canon 1(A) of the Code of Judicial Conduct, as stated in Missouri Supreme Court Rule 2, states that "[a]n independent and honorable judiciary is indispensable to justice in our society." But, what do we mean when we say judicial independence?

Clearly, it cannot be the opposite of judicial accountability; even an independent judiciary must somehow remain accountable. Rather, it has to be the ability of our courts to remain aware of, yet not unduly influenced by, public opinion in the exercise of their duties. While an orderly, predictable, and reliable method of resolving disputes is a cornerstone of a stable society, such can exist in a dictatorship.

So, for a society to even be considered a just one, the dispute resolution process must be fair, unbiased and based on principles that are at the foundation of that society. For us, that foundation is the Constitution. Its drafters recognized the concept that power corrupts and absolute power corrupts absolutely when they devised the checks and balances of the three branches of government.

A judiciary that is not independent cannot fulfill its role as an effective check and balance. And, to maintain the long-term confidence of the citizenry, the judiciary must remain (and be viewed as) fair and unbiased. The only way to ensure this is through its independence. While our system is established so that the majority rules in the political arena, we cannot allow popular opinion to dictate or intimidate judicial decision-making.

By no means should we quell criticism of judicial opinion, as free speech is an important and necessary component of our system. But we must prevent this criticism from diverting a judge's decision from the law applicable to the facts at bar. We cannot have our courts' judgment directed by the prevailing "mob mentality" of the moment. Only diligence to the principle of judicial independence can ensure protection of the freedoms we enjoy.

In a statement often attributed to Thomas Jefferson, "Eternal vigilance is the price of liberty."1 In times of crisis, it is natural to want to adjust rules and regulations to "fix" an instant problem.

However, the unintended consequence of such a fix may be the erosion (or threat of erosion) of the very rights and privileges guaranteed by the Constitution. Benjamin Franklin is quoted as saying, "[t]hey that give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."2 Protecting our freedoms requires us to strike a balance between what may be expedient in the short run and that action's long-term effects.

In other words, while times of true urgency may require extraordinary measures, those measures must be closely scrutinized to avoid a situation where the cure is worse than the disease. When passions run high -- which is likely if not certain when pressing social issues are involved -- is when mistakes which can undermine and contravene our constitutional and societal rights and protections are most likely to occur.

It is in these times that the court's impartiality -- and the public's perception of the court's unwavering fairness -- is most important. While it is a natural human reaction to huddle and withdraw in times of national stress, while there remains a perceived safety in numbers (intellectually as well as physically), it is in times of social strife that the courts must remain free to voice and even advance an unpopular position when it is what the law dictates. Absent an independent judiciary free from political and social pressures to do just this, we revert to a rule of the strongest.

When society is torn, it is often the courts which must provide consistency and order. Often, that sense of order (and through order, safety) can be attained by returning to the basics, the fundamental principles on which our society and form of government is based. As the guardian of all things constitutional, the judiciary is accountable for ensuring that its protections are not diluted, much less eroded to the point of extinction.

Freedom is the common goal and value of American law, culture and society. Both the soldier and good-faith protester fight for freedom. It is our collective passion. It is an independent judiciary's responsibility to preserve the right of each citizen to pursue this passion in whatever lawful manner each chooses. And, it is our society's collective responsibility to safeguard the independent judiciary's ability -- its freedom, if you will -- to perform this crucial function. It is our duty to the freedoms we know and cherish to support, protect and defend our judges' right and need to do just that.

And still, as previously noted, judicial independence is not the opposite of judicial accountability. There are higher courts to review decisions; in Missouri, the citizens exercise their voice and will through judicial election and retention votes; the legislature can amend, repeal or adopt new laws to counteract (or even correct) judicial decisions deemed contrary to our collective goals.

These are but a few of the ways in which the judiciary is accountable to the public. But, we must maintain the independence of the judiciary if we are to ensure that every voice is heard, and that the foundations on which our country's government and philosophy is based remains intact. This is so because it is the independent judiciary which protects the very freedom we fight to defend and hold so dear.

Footnotes

1 According to Bartlett's Familiar Quotations (15th Ed., 1980), the quotation actually dates back to 1790 in John Philpot Curran's "Speech upon the Right of Election of the Lord Mayor of Dublin," and reads: "The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."

2 Historic Review of Pennsylvania (per Bartlett's Familiar Quotations).

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