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Constitution Day Program to Examine Importance of Independent Judiciary
by Randall Coyne

On September 17, 1787, at Independence Hall in Philadelphia, the Constitutional Convention held its last meeting, with 42 of the 55 delegates in attendance.  The sole item of business was for the framers to affix their signatures to the four-page handwritten document.  Thirty-nine did so and the result was the most enduring written constitution ever created by human hands.  In a very real sense, American democracy was born that day.

Heeding James Madison’s warning that “ SEQ CHAPTER \h \r 1 [t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, may justly be pronounced the very definition of tyranny,” the framers established a government with three separate, coequal branches.  Article I of the Constitution created the legislative branch (the House and Senate); Article II established the executive branch (the president, vice president and departments); and Article III created the judicial branch (the Supreme Court and lower federal courts).  Each branch has certain powers, and each of these powers is limited – or checked – by another branch.  In simplest terms, the legislative branch makes the law, the executive branch enforces the law, and the judicial branch interprets the law.

In The Federalist No. 78, founding father Alexander Hamilton defended the critical importance of an independent judiciary in our constitutional structure.  Hamilton emphasized that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.  Liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments.”  In other words, the very existence of our system of constitutional government and liberty itself depends on the vigilance of a judicial system that is not subject to domination by other government branches.

Consider some modern alternatives.  According to Ed O’Brien, executive director of Street Law, Inc., as recently as 20 years ago, judges in the Soviet Union frequently employed “telephonic justice” to render their decisions.  They would call the Communist Party leadership, ask, “What does the Party want in this case?,” and rule accordingly.  Russian presidents often declared rulings by that country’s highest court null and void because they disagreed with them.  Until South Africa’s new constitution took effect in 1994, the all-white Parliament – not the courts --  had the final say on the constitutionality of laws.

The colonies were all too familiar with external interference with judicial decisions.  As Thomas Jefferson protested in the Declaration of Independence, King George III “made judges dependent on his will alone.”

The framers foresaw both (1) the inevitability that truly independent judges would render unpopular decisions which provoke public outrage; and (2) the need to safeguard judges’ ability to rule fairly on the law and facts, without regard to retaliation from Congress, the executive branch, or the public.  The Constitution provides protection from reprisals by keeping the positions and salaries of judges beyond the reach of outside influence.  Federal judges hold their offices “during good behavior” meaning they have lifetime job security and may only be removed for the most serious misconduct.  Also, the salaries of federal judges may not be reduced while they serve.

In recent years, politicians and critics have lambasted judges for decisions that are said to defy conventional wisdom or thwart the popular will.  Some have called for the impeachment of federal judges viewed as being “too activist.”  Others have demanded the popular election of federal judges.  Still others have insisted on judicial term limits or proposed amending the Constitution to allow Congress to overrule Supreme Court decisions by a majority vote.

There are, of course, remarkable examples of judicial courage, where judges endured vicious assaults on their independence but somehow managed to do the right thing.  Southern judges who handed down desegregation decisions in the 1950s and 1960s come to mind.  Consider Judge J. Skelly Wright, who served as a federal district court judge in Louisiana during that period.  According to Professor Susan Estrich, Judge Wright had become so accustomed to the lash of public criticism and vilification that he instructed the U.S. Marshals’ security detail watching his home to not even call him unless the crosses burning in his yard were close enough to endanger his house.  It is telling that when Judge Wright was elevated to the court of appeals, he was not assigned to a court in the South, but was instead installed on the D.C. Circuit.

Contrast Judge Wright’s experience with that of fellow district court judge Harold Baer of New York.  Judge Baer provoked a storm of criticism after he ruled in a criminal case to suppress 80 pounds of cocaine and heroin, as well as the videotaped confession of the drug courier.  Judge Baer ruled that the evidence had been seized illegally, because simply running from a car when approached by the police did not give the police probable cause to search the car.  Judge Baer reasoned that highly publicized police corruption in that particular neighborhood made it reasonable – not suspicious – for people to flee when police officers approach.

Both Judge Baer and his decision were subjected to withering attacks, from public commentators, public officials, and the White House.  Here’s a small sample of the criticism:

New York Governor George Pataki told CNN audiences “the judge’s decision is despicable.”  New York City Police Commissioner called Judge Baer’s decision “absolutely crazy” and said that Baer was “living in a fairyland.”  Senator Orin Hatch called Baer a “bleeding-heart judge” who “lacks common sense and judgment.”  Representative Fred Upton called for Baer’s resignation, calling him “a Monopoly game gone bad . . . handing out ‘get-out-of-jail free’ cards with reckless abandon.”  And Senator Daniel Patrick Moynihan recommended that Judge Baer be sentenced to live one year in Washington Heights, to see if he would run away when he saw the police.

Newspaper columnists and editorial writers also leveled scathing attacks on the judge.  The Wall Street Journal referred to him as “the drug judge” and the New York Daily News opined, “Federal Judge Harold Baer has become an accomplice to evil.”

Judge Baer reconsidered his decision and reversed himself.

We all recall the 2000 Supreme Court decision in Bush v. Gore.  In that case, the appointees of the first President Bush cast decisive votes that helped guarantee the election of the second President Bush.  In so doing, the Court overturned the contrary decision of the Florida Supreme Court, whose members had all been appointed by Democratic governors.  So much for even the appearance of impartiality.

More recently, in 2005, Terri Schiavo, a brain-damaged Florida woman who spent the last 15 years of her life in a persistent vegetative state, captured the nation’s attention when her parents opposed her husband’s petition seeking judicial authorization to remove her from life support.  Ultimately, the Schiavo case was heard in the Florida courts more than 20 times.  Each time, the Florida courts consistently ruled (based on well-settled precedent upholding the sanctity of marriage) that the decision whether to remove Schiavo’s feeding tube was her husband’s to make.   Terri Schiavo’s feeding tube was removed.  But the circus was far from over.

Six days later, politicians, recognizing a media feeding frenzy when they saw one, inserted themselves into what had become -- largely as a result of efforts of the pro-life movement -- a national debate.  The Florida legislature passed “Terri’s Law,” which gave Governor Jeb Bush the authority to have Schiavo’s feeding tube re-inserted when a court ruled that her husband could have it removed.  Schiavo’s feeding tube was re-inserted.

The Florida courts uniformly struck down Terri’s Law as unconstitutional.  Chief Justice Barbara Pariente wrote for the unanimous state high court:  “It is without question an invasion of the authority of the judicial branch for the Legislature to pass a law that allows the executive branch to interfere with the final judicial determination in a case.”

Three days after Schiavo’s feeding tube was again removed, the insanity proceeded to the federal level.  Congress quickly passed a law stripping the Florida state courts of jurisdiction and transferring the case into the federal courts.  Jeb’s brother George flew back to Washington to sign the bill into law.  But federal courts refused to overturn the Florida Supreme Court’s decision.

Ultimately, the federal court of appeals in Atlanta – for the fourth time in a two-week period, rejected Schiavo’s parents’ petition.  In a concurring opinion, Judge Stanley Birch observed that Congress “chose to overstep constitutional boundaries” by passing a law which forced federal courts to consider Schiavo’s case.  For the sixth time, the U.S. Supreme Court refused to hear the case.  Within two weeks of the removal of her feeding-tube, Terri Schiavo died on March 31, 2005.

Terri Schiavo’s autopsy revealed that her brain damage was far worse than experts had claimed while she was alive.

Those who criticize as undemocratic judges who render unpopular decisions – from the Left or the Right – could stand a refresher course in civics.  Democracy means that people ought to be able to vote for public officials in fair elections, and make most political decisions by majority rule.  Liberty means that, even in a democracy, individuals have rights that no majority should be able to take away.

Those who condemn judges as anti-majoritarian would be advised to consult history to bring to mind majoritarian mischief.   SEQ CHAPTER \h \r 1The majority crucified Jesus Christ; the majority burned Christians at the stake; the majority threw Columbus into a dungeon for having discovered a new world; the majority cut off the ears of Prynne and Burton because they dared advocate freedom of the press; and a majority of Americans may well have opposed the historic Brown v. Board of Education decision, which brought about desegregation of public schools and an end to the farcical separate but equal doctrine.

Former President Woodrow Wilson wrote, government “keeps its promises, or does not keep them, in its courts.  For the individual, therefore, . . . the struggle for constitutional government is a struggle for good laws, indeed, but also for intelligent, independent, and impartial courts.”  The  struggle for constitutional government continues today, 221 years after the framers affixed their signatures to the four-pages of parchment in Philadelphia.  In the midst of the so-called “war on terrorism” and in the face of an executive branch many Americans fear is seriously overstepping its constitutional authority, we can hope and pray for intelligent judges.  But we must doggedly insist that our courts remain independent and impartial. 

In 2004, Congress established September 17 as Constitution Day in recognition of the signing of the United States Constitution.  Constitution Day will be celebrated in the Bell Courtroom of the University of Oklahoma College of Law on September 17 at 7:00 p.m.  A distinguished panel will explore the importance of an independent judiciary during a presentation titled “Safeguarding Freedom: Is There an Assault on the Independent Judiciary?”   Panelists include Senior Federal Judge Lee West, Andrew Tevington, chief counsel to former Governor Henry Bellmon, and Arnold Hamilton, editor of the Oklahoma Observer.

The program is jointly sponsored by the League of Women Voters Education Fund; the University of Oklahoma College of Law; the University of Oklahoma Honors College; the American Civil Liberties Union of Oklahoma; the Program on Constitutional and Legal Policy of the Open Society Institute; and Common Cause Oklahoma.

Additional sponsors include the League of Women Voters of Norman; the League of Latin American Citizens; the Peace House; the Peace Education Institute; the Unitarian University Community Church; the Norman Unitarian Universalist Fellowship and the Interfaith Alliance.

A reception in the Sneed Lounge at 6:00 precedes the program.  Both are free and open to the public.