What is meant by the term judicial independence?

Judicial independence is the principle that judges should be free to use their best judgment to interpret and apply the law without fear of punishment. When truly independent, judges are not influenced by personal interests or relationships, the identity or status of the parties to a case, or external economic or political pressures. The principle is the core of judicial authority and extends to all functions of the court system that are necessary to the exercise of constitutional judicial powers.


Why is judicial independence important?

Judicial independence provides continuity and stability in our legal system, guaranteeing that disputes can be resolved fairly and impartially. An independent judge does not fear for his or her job or good reputation when ruling against excessive governmental regulation, overzealous law enforcement, or discriminatory policies. Judges who fear that they can be punished for unpopular decisions are less likely to be neutral referees in the cases that come before them.

The founders of the United States believed that judicial independence is a crucial element of a democratic society. This power frees judges from the political pressures that might prevent them from impartially enforcing the rights and principles guaranteed by the U.S. Constitution. Furthermore, without this principle, the system of checks and balances among the three branches of government cannot exist. America's framers codified the concept of judicial independence into the Constitution by granting federal judges life tenure and providing for salary protection. Generally speaking, state court judges do not enjoy the same degree of protection for judicial independence that their federal counterparts do.


What are some common threats to judicial independence?

Within the United States, state constitutions generally afford less protection for judicial independence than does the federal Constitution. State judges are particularly vulnerable during the selection process, and state courts are vulnerable in the budgetary process. Threats to judicial independence can be manifested in several ways:

Politicization of the judiciary—

Where judges are chosen by election, rather than by merit selection, judicial candidates may need to participate in election campaigns funded by special interests. The perceived independence of a judge who owes a seat to contributions from politicians, labor leaders, corporate executives, or lawyers may suffer in the eyes of the public if not in actual fact.

This is not to say that appointed judges are necessarily immune from political influences. Anyone who is familiar with the more publicized confirmation process for federal judges can recognize how a judicial appointment process might also be compromised by partisan politics and special interests. Where the power to appoint judges has been considered a spoil of the political process for electing other officials, judges have often become tied to patronage systems and cronyism that also casts doubt on the independence of judicial decision making.

Fundamentally, what must be recognized is that judges are not like other politicians who run for office. They are not selected to promote the short-term interests of a particular constituency or percentage of the electorate. Rather, they are selected for their ability to uphold the law and the legal process, defending the long-term values that they represent. Without the protection afforded by life tenure, the independence of state judges relies on the character of the judges themselves and policies that respect the role of judges in our democracy.

Distorted campaigns—

In some states, single-issue campaigns have been mounted to punish judges for disfavored opinions. Justice Penny White of Tennessee was defeated in a retention race, largely through a campaign of hate directed by persons who blamed her for the entire court's legitimate actions in a death-penalty case. Here was a clear signal to other Tennessee judges about actions that might be perceived as "soft on crime." There are many other examples. Codes of conduct that govern judicial behavior limit the manner in which sitting judges may address distorted statements about their record.

Underfunding of the court system—

As the judicial branch does not control the power of the purse, the adequacy of its resources depends upon the action of the other branches. The other branches, therefore, exercise primary control over the number and compensation of judges and most other court resources that are needed to support a judge’s constitutionally based work—law clerks for legal research; case management personnel to ensure the speedy handling of cases; staff to coordinate adjunct support functions such as guardians ad litem, ADR programs, and law libraries; staff and equipment to carry out essential support functions such as planning, budgeting, and automation; facilities; and security.

Appropriations for the judiciary tend to lag behind the growth of judicial branch workloads. This compromises the ability of the judiciary to perform its mandated functions. The number of positions necessary to accomplish work becomes insufficient, or the compensation necessary to attract and retain qualified personnel ceases to be competitive. This is sometimes a result of an inadequate appreciation for the importance of the court system relative to other government functions. Occasionally, however, individuals in the other branches have withheld funds from the court system as retribution for decisions by the courts that were either unpopular or embarrassing to certain politicians.

Jurisdiction stripping and reduction of judicial discretion—

The powers of the federal and the state legislatures vary with respect to the judicial function, but many have some statutory authority to affect the existence or jurisdiction of state courts (particularly the trial courts), the nature of the disputes that may come before the courts, and the range of remedies or sentences that the courts may impose in conjunction with civil and criminal decisions. When exercised properly, such legislative authority can be beneficial to the operation of the justice system; however, such changes have sometimes been motivated by a misunderstanding or a lack of appreciation for the proper exercise of judicial power. For example, legislatures have restricted judicial sentencing discretion via the imposition of mandatory-sentencing structures, motivated by false impressions that judges are “soft on crime,” resulting in too many instances in which severe sentences are imposed for comparatively minor offenses.

Threats to life or property—

Individuals and extremist groups may issue threats of violence against judges whose actual or potential decisions may be objectionable to them. Militia groups and others have used false liens and other documents to tie up personal property and compromise the credit records of judges and court staff.


How can the threats to judicial independence be avoided or countered?

There are a number of ways by which the courts, the bar, and others may work to preserve judicial independence. Methods that have been tried or suggested include: 

  • Holding regular informal meetings between judges and legislators to improve interbranch communication.
  • Enacting legislation to exclude judicial budgetary appropriations from executive line-item veto.
  • Limiting legislative curtailment of court jurisdiction.
  • Having the legislature provide for judicial review of constitutional questions involving administrative, regulatory, and enforcement actions.
  • Separating legislative pay-increase proposals from judicial pay-increase proposals.
  • Implementing periodic, automatic cost-of-living adjustments to judicial salaries.
  • Increasing bar-association efforts to inform the public of procedures for handling complaints against judicial officers.
  • Educating the public about judicial independence through bar programs and research into causes of the decline in public trust and confidence.
  • Adopting the ABA’s proposed amendment to the Commentary to Canon 5C(2) of the Model Code of Judicial Conduct (April 1997) regarding judicial acceptance of campaign contributions from lawyers and others who regularly appear before the judges. The proposed amendment endorses merit selection of judges over the elective method.
  • Developing expanded methods of evaluating criticism of state and federal judges by state and local bar associations and responding promptly to unwarranted judicial criticism when appropriate.
  • Opposing any efforts to amend constitutions or statutes that would interfere with protections for judicial independence or compromise mechanisms of judicial accountability.
  • Filling judicial vacancies without delay.
  • Making it clear that disagreeing with a particular decision of a judge is an improper basis for initiating impeachment proceedings.
  • Allowing judges threatened with impeachment because of unpopular rulings to continue to exercise independent judgment and render justice according to the law.


What is the appropriate relationship between judicial independence and judicial accountability?

Although there are tensions between demands for both the independence and the accountability of the judiciary, the two principles are not mutually exclusive. Indeed, the effective operation of the judicial system within democratic societies depends upon a balance between the independence of judges to consider the facts and the law of each case with an open mind and unbiased judgment and the need for comity and public accountability. Indeed, John Jay, the first chief justice of the United States Supreme Court, recognized the principle when he said that “next to doing right, the great object in the administration of justice should be to give public satisfaction."

The judiciary is said to be the weakest of the three branches of government in the United States; however, its action is also the furthest removed from popular control via democratic processes. While decision making within the courts should be independent, there have always been mechanisms built into state and federal constitutions by which a degree of public interference could be exercised to ensure that the judicial power is not abused, that justice is accessible, and that judicial decisions are timely. The people or their representatives select judges; provisions exist by which to remove judges for cause; and the judiciary relies on the legislature to provide funds for its operation.

Within the field of judicial administration, there has come to be an understanding that the independence of the judiciary from intervention—warranted or otherwise—by the other branches can be best assured by the courts’ effective management of their own operations. When courts establish and support effective leadership, operate cooperatively with the other elements of the justice system (law enforcement, the bar, probation and corrections staff, etc.), plan and secure the resources to implement those plans, measure performance accurately, and account publicly for their performance, they can earn credibility, secure the respect of the public and the other branches of government, and minimize grounds for criticism and interference.


What is the nature of judicial immunity?

Judges have absolute immunity from civil lawsuits brought against them by plaintiffs seeking money damages.  When judges perform judicial acts—acts within their jurisdiction—they cannot be sued.  This is a well-settled issue and has been declared by the U.S. Supreme Court and reinforced by state court systems.


Are judges immune from civil suits when they discharge a court administrator?

The U.S. Court of Appeals for the Third Circuit addressed this question in Gallas v. Supreme Court of Pennsylvania (3rd Cir 2000).  The Pennsylvania Supreme Court hired an executive administrator for the First Judicial District, a trial court in Philadelphia that had been the site of considerable political and legal conflict.  Subsequently, the Pennsylvania Supreme Court changed its planned reorganization of the First District, returned the district to local control, and discharged the administrator.  The administrator challenged the Supreme Court’s actions on several grounds, including invasion of privacy because court personnel had released a copy of a protection order the administrator’s wife had filed against him.

The Third Circuit said that the Pennsylvania Supreme Court had absolute immunity because their action was not taken in “the complete action of all jurisdiction.”  Moreover, the discharge of the administrator was taken in the court’s “legislative capacity” to supervise the First Judicial District, which is covered by absolute immunity.  Finally, the judge and court staff member who had released the copy of the protection order to the press were entitled to absolute “quasi-judicial” immunity.  Therefore, the administrator failed to sue the Pennsylvania Supreme Court successfully for removing him or acting to defame him.

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