Original Sin and Judicial Independence: Providing Accountability for Justices

TABLE OF CONTENTS I. A DEFINING CHALLENGE A. The Founding Vision 1. The Federalists' "Ark of Safety" B. Removing a Disabled Judge: The Pickering Case C. The Impeachment of Justice Chase: Are Justices Different? 1. How To Remove a Justice CONCLUSION I. A DEFINING CHALLENGE The independence of the judiciary is an enduring and defining objective of the legal profession. We lawyers, of all citizens, have the greatest stake in shielding judges from intimidation or reward. And that task of protecting judicial independence stands today at the very top of the agenda of the American legal profession. (1) The integrity of law and legal institutions requires more than just the protection of judges. It is equally dependent on the willingness and ability of judges to maintain virtuous disinterest in their work. (2) Some might explain their occasional failings as manifestations of the original sin inherited from Adam; (3) whatever their source, the proclivities of judges to indulge or celebrate themselves are perpetual temptations and judicial self-restraint is a perpetual challenge. As Cardozo explained: "The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by." (4) A primary and indispensable constraint on those who judge is the moral constraint imposed by the professional community to which they belong. The primary function of transparency in proceedings at trials and arguments, and of published decisions and opinions explicating judges' rulings, is to manifest their disinterest not only to the parties whose contentions they judge, but also to their lawyers, who share responsibility for imposing moral judgment on the professionalism of judges. (5) Judicial disinterest may have been made increasingly difficult in the twentieth century by the replacement of legal formalism with a legal realism that commissions judges to be less constrained by preexisting texts and more attentive to the social consequences of their judgments. (6) A secondary effect may be to inflate the collective vanity of the judiciary. The greater freedom judges assert in taking account of the social consequences of their decisions, the harder it may be for them to lay aside their personal political preferences, the related interests of their friends and allies, and the adoration or hostility of a public that either celebrates or attacks them, depending on the reaction to the policy consequences of their decisions. There is, to be sure, no empirical evidence of this effect, but it is reasonable to suspect that it occurs and contributes to public concerns about possible excesses of judicial independence. As judicial virtue has become more difficult to practice, it has become more in need. The present and rising mistrust of the American judiciary is not a direct consequence of the change in legal philosophy, but there is an obvious connection. As judges have increasingly and openly presumed to shape our polity, citizens who disagree with their politics have felt justified in mistrusting their disinterest and challenging their independence. (7) It is also increasingly difficult for citizen-lawyers performing their duty to judge the judges to maintain their own disinterest. One form of widely shared human weakness is that which inclines citizen-lawyers to link their respect and support of judges to their own preferences about the outcomes of the cases and political issues judges decide. But another is uncritical fidelity to the judiciary. A failure by the profession to criticize judicial misdeeds deprives judges of the sense of moral accountability to their peers that is sometimes needed to reinforce their capacity to know and restrain themselves. Judging judges wisely, like judging cases wisely, requires self-knowledge, self-discipline, and moral courage on the part of citizen-lawyers and their professional organizations. …