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86 Denv. U. L. Rev. 1 (2008-2009)
Judicial Accountability Must Safeguard, Not Threaten, Judicial Independence: An Introduction

handle is hein.journals/denlr86 and id is 3 raw text is: JUDICIAL ACCOUNTABILITY MUST SAFEGUARD, NOT
This issue of the Denver University Law Review is devoted to an
important subject: judicial accountability. Properly understood, judicial
accountability is a fundamental democratic requirement of our federal
and State governments. Put simply, judges must be accountable to the
public for their constitutional role of applying the law fairly and impar-
tially. Judicial accountability, however, is a concept that is frequently
misunderstood at best and abused at worst. It has become a rallying cry
for those who want in reality to dictate substantive judicial outcomes.
The notion of accountability is superficially attractive: judges who reach
outcomes that part ways with the will of the majority--often mislabeled
activist judges-should be held accountable.
This simplistic understanding of accountability-judicial account-
ability for the majority's desired substantive outcomes-ignores the role
of the judiciary and indeed the very structure of our democratic govern-
ments, State and federal. Worse, this perversion of the concept of judi-
cial accountability threatens to undermine the safeguards of democracy
and liberty that were so brilliantly conceived by those who first designed
our governmental institutions and drafted our Constitution. In short,
[p]opulist, substance-based accountability for judges is precisely what
the Founders feared[.]' The Framers placed at the core of the judici-
ary's design the concept of judicial independence as a means to guaran-
tee the Rule of Law. Judicial independence is the vital mechanism that
empowers judges to make decisions that may be unpopular but nonethe-
less correct. In so doing, the judiciary vindicates the principle that no
person or group, however powerful, is above the law. And it gives life to
the promise that the Rule of Law safeguards the minority from the tyr-
anny of the majority.2
Alexander Hamilton, one of the Framers of the United States Con-
stitution, wrote in The Federalist No. 78 to defend the role of the judici-
ary in the constitutional structure. He emphasized that 'there is no lib-
erty, if the power of judging be not separated from the legislative and
t United States Supreme Court Justice, Retired.
1. Rebecca Love Kourlis & Jordan M. Singer, A Performance Evaluation Program for the
Federal Judiciary, 86 DENV. U. L. REv. 7,8 (2008).
2. 1 ALEXIS DE TocQuEvLE, DEMOCRACY IN AMERICA, Ch. VI (Henry Reeve trans.,

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