Independent judiciary must not fade into history but remain to ‘stand in the gap’
By Charles Mitchell
In his 2024 end-of-year report on the federal judiciary, U.S. Supreme Court Chief Justice John G. Roberts explained why it has been essential that courts, even though they don’t get much TV time, stand between politicians and people.
Justice Roberts began with a story of King George III, who changed the rules for serving as a judge back in 1761. For 60 years under parliamentary procedures in England, judges had retained their posts “during good behavior.” King George, it seems, wasn’t happy about what was stirring in the American colonies, so he changed that and gave himself the power to remove any judge whose decisions displeased him. The new rule was that judges in England and in the colonies would serve “at the pleasure of the crown.”
The colonists, who 16 years later rebelled to form a new nation, recognized the king’s move for what it was: A power grab to make him the final authority in all matters. In fact, grievance number nine of the 27 listed in the Declaration of Independence specified that King George had made judges “dependent on his will.” If judges in the colonies wanted to keep their jobs and income, they had better rule as George preferred.
Chief Justice John Roberts has emphasized the need for an independent judiciary in a functioning democracy. Photo from supremecourt.gov.
There is plenty of authority for Justice Roberts’ view on why judicial review matters, but this nation, when new, didn’t immediately get around to giving courts that power. With the first chief justice, John Jay, off the job due to injuries in a riot (yes, there were riots in 1788), it fell to Alexander Hamilton to define the ideal. Hamilton, in the Federalist Papers, quoted French philosopher Montesquieu by writing, “There is no liberty if the power of judging not be separated from the legislative and executive powers.” The saying “standing in the gap” has Biblical roots, but the logic transfers. America’s founders weren’t so power mad as to believe that unless the people had an impartial advocate to intercede, test, interpret and apply laws in keeping with constitutional limits, politicians would be unchecked and might well evolve into dictators.
Former Chief Justice William Rehnquist expressed this in loftier words: “The creation of an independent constitutional court with the power to declare unconstitutional (invalidate) laws passed by state or federal legislators (or acts of a president) is probably the most significant contribution the United States has made to the art of government.”
The big challenge courts face, of course, has been for people to retain faith in the reasoned objectivity of court decisions.
Justice Roberts used one of the court’s most famous cases, Brown v. Board of Education, as an example. In 1954, when the court ruled there was no constitutional basis to segregate public schools by race, Southern governors lined up to say, “No way.” The decision resulted in marches, protests, bloodshed and dozens more court cases, but eventually federal judges – almost all of them white – enforced the ruling and were backed by the administrations of presidents Eisenhower, Kennedy and Johnson.
Respect that their decisions are based in law is the only power courts have. No army. No press conferences or spokespeople. In his report, Justice Roberts listed four threats causing respect to slip away. His list included (1) violence, such as bombing or torching courthouses, (2) intimidation, including doxing judges by outing their home addresses on social media and such, (3) disinformation, including bizarre and outrageous statements about decisions going viral on the internet, and, (4) threats by government officials to defy lawfully entered judgments.
No doubt each of those is real, but Roberts left out the big one: The rampant increase in partisan judges.
Through most of American history, justices of the Supreme Court and other judges in federal and state courts nationwide worked diligently to ignore their own beliefs and prejudices in deciding how to rule. For sure, it has never been any secret that some leaned liberal and some leaned conservative. Justice Roberts conceded, too, that sometimes courts get things wrong. He didn’t claim perfection or that perfect justice had been reached in every case. Still, he recalled an era when people didn’t know how a judge would rule until the judge ruled.
The increasing reality today, though, is that when a purely partisan president submits a purely partisan nominee for confirmation by a purely partisan Senate committee no one can be surprised when the purely partisan judge makes purely partisan decisions. These days when any controversy goes before many courts, including the Supreme Court, it’s a slam dunk how each member of the court will vote. It’s comical but tragic to read opinions where facts are twisted into a pretzel to reach a decision based on a judge’s ideology.
The natural outflow of this is courts losing the public’s faith in their fairness. People can be trusted to know when “the fix is in.” And without the public’s trust, we go back to King George and the recognition by colonists when no one objectively dedicated to justice is standing in the gap.
As a generalization, through the decades Americans have had a varying degree of trust in their presidents, very little trust in Congress and strong reliance and respect for courts to review and, when necessary, restrain the executive and legislative branches.
It was essential at the beginning, and it’s essential today.
—————————————————————————————————————
Charles Mitchell is an associate professor in the School of Journalism and New Media at the University of Mississippi and a member of the Overby Center panel of experts.
