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![handle is hein.congcourts/juindus0001 and id is 1 raw text is: F. Judicial Independence in the United
States: Current Issues and Relevant
Background Information
by Mira Gur-Arie
Russell Wheeler'
1. Introduction
Judicial independence has been a core political
value in the United States since the founding of
the republic. Alexander Hamilton, in urging
ratification of the constitution of the United
States, took as obvious the need for a steady,
upright, and impartial administration of the
laws by a judiciary of firmness and
independence. Liberty, he said, would have
everything to fear from [the judiciary's] union
with the legislature or the executive. (The
Federalist: no 78)
Judicial independence means different things
to different people. At the least it refers to the
ability of judges to decide disputes impartially
despite real, potential, or proffers of favor. It is
perhaps most important in enabling judges to
protect individual rights even in the face of
popular opposition.
A belief in judicial independence, however,
exists in the United States alongside an equally
strong belief in democratic accountability.
Government, James Madison wrote during the
ratification debate, must derive all its power
directly or indirectly from the great body of the
people. (The Federalist: nos. 37, 39)
Accountability with respect to judges also has
different meanings. Some believe that judges'
decisions should reflect popular preferences.
.. The views expressed in this article are those of
the authors and should not be attributed to the Federal
Judicial Center or any other agency of the federal judicial
system. John Cooke, Judges Paul Magnuson and Peter
Messitte, Peter McCabe, Judge Fern Smith, and Sylvan
Sobel provided helpful comments on an earlier draft.
Others reject that proposition but still insist that
judges' administration of the courts and use of
tax dollars must accommodate public needs and
wishes. At its core, the idea that judges should
be democratically accountable means the public,
directly or representationally, has a legitimate
say in how the courts should perform.
The United States is a laboratory of efforts to
adjust judicial independence and accountability
to one another, with its federal judiciary of
roughly 900 life tenured judges and 800 term
limited judges, and the 28,000 judges of the 50
states, the District of Columbia, and Puerto
Rico.'12 These 53 jurisdictions are all largely
free to structure their judiciaries as they wish.
The lesson from the U.S. experience is that there
is no single set of provisions guaranteed to
achieve an independent judiciary. Judicial
independence takes various forms, shaped by
different legal provisions, political traditions,
and cultural expectations that have evolved over
time and continue to inspire debate and self-
reflection.
The provisions in the United States to promote
judicial independence on the one hand and to
promote democratic control of the judiciary on
the other may be arrayed on a continuum. This
paper describes the mechanisms employed in the
United States to protect and balance
independence and accountability. It is critical to
112 To simplify somewhat, state court judges
generally have plenary jurisdiction over all matters except
those that Congress consigns solely to the federal courts.
Federal judges have jurisdiction over federal crimes, cases
to which the United States is a party, cases involving
federal laws, and cases between citizens of different states.
There is another category of federal judges whom we do
not treat in this paper at all, due to space limitations. These
are the judges of courts established within the executive
branch agencies, such as the judicial system of the armed
forces, the U.S. Tax Court, and numerous administrative
law judges.
Guidance for Promoting Judicial Independence and Impartiality
133](ViewImageLocal?handle=hein.congcourts/juindus0001&div=1&collection=&method=preview&ext=.png&size=3)