In the United States, judicial independence has developed into a set of institutions that assure that judges decide according to law, rather than according to their own whims or to the will of others, including other branches of the government. The five components of judicial independence are: the constitutional protections that judges in the United States have; the independent administration of the judiciary by the judiciary; judicial disciplinary authority over the misconduct of judges; the manner in which conflicts of interest are addressed; and the assurance of effective judicial decisions. These components combine to assure an independent judiciary that is the basis for a society governed by the rule of law. Following is an abridgment of Justice Breyer's remarks originally delivered at the Conference of the Supreme Courts of the Americas, held in Washington, D.C. in October 1995.




The primary basis of judicial independence in the United States is the protection guaranteed to judges under Article III of the Constitution, which creates the federal judiciary. Article III provides that federal judges will "hold their Offices during good Behavior," and that they will "receive for their Services, a Compensation, which shall not be diminished during continuance in Office." These provisions assure that Congress or the president cannot directly affect the outcome of judicial proceedings by threatening removal of judges or reduction of their salaries.

The protection against removal is constrained by the phrase "during good Behavior," and that mechanism also applies to other office holders in the federal government. Article II of the Constitution provides that "civil Officers of the United States" -- and judges are considered to be among these -- can "be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Impeachment is a formal process of adjudication by the Congress, that requires agreement by both houses. The House of Representatives must present a charge to the Senate. The Senate then tries the impeachment, and may only convict the impeached officer, including a judge, acting by a majority of two-thirds.

The impeachment power has been used sparsely since the creation of the judiciary, and used solely to remove judges for various forms of personal misconduct. In a landmark impeachment case in 1805, Congress came close to impeaching Samuel Chase, a politically outspoken Supreme Court justice, on the basis of allegations that his substantive decisions were politically biased. The impeachment failed, and established the tradition that Congress cannot use its impeachment power to check the substantive exercise of judicial power. More recently, the impetus for the few instances in which judges have been impeached arose out of and followed criminal prosecutions of judges. Less dramatic instances of misconduct are addressed within the judicial disciplinary system, which is administered by the judiciary itself.

Control Over Procedure and Administrative Independence

The institutions that allow the judiciary to control the environment in which judges do their work are a second factor of judicial independence. This aspect is not always at the center of considerations of judicial independence, but if one thinks about how a working environment affects one's work, then one understands that the question of who controls the context in which judges decide cases matters a great deal to the idea of the independence of the judiciary.

There are three primary institutional pillars on which U.S. judicial administration is based. The first is the Judicial Conference of the United States, which was created in 1922 as the Conference of Senior Circuit Judges. It is composed of the Chief Justice of the Supreme Court, the 13 chief judges of the circuits, 12 district court judges and the chief judge of the Court of International Trade. The Judicial Conference is the national policymaking body for the judiciary, and supervises the Administrative Office of the U.S. Courts. Most important is the role that the Judicial Conference plays in the rulemaking process.

The first and most central power that the Constitution leaves to Congress, but whose administration Congress transferred to a significant extent to the courts, is the power to set the rules of procedure in court cases. In the Rules Enabling Act, Congress empowered the judiciary to set its own rules of criminal and civil procedure, and since the promulgation of the Federal Rules of Civil Procedure in 1938, the Supreme Court (and lower courts in the case of local rules) has controlled the majority of procedural rules in federal courts. The rulemaking process, although independent of Congress, is not a cloistered affair sheltered from public responsibility. The rules are developed by advisory committees that specialize in civil, criminal, bankruptcy, appellate and evidence rules. These committees, composed of a broad cross-section of the participants in the legal process -- judges, the Department of Justice, law professors, and members of the criminal and civil bar who represent both plaintiffs and defendants -- propose rules, subject them to public comment, and submit them to the Standing Committee on Rules of Practice and Procedure, which in turn submits them to the Judicial Conference, which recommends them to the Supreme Court for approval. Once the Supreme Court promulgates a rule, it is sent to Congress and becomes effective unless Congress affirmatively rejects it within a statutorily prescribed time. (Rules of Evidence, however, which are considered substantive rather than procedural, are proposed by the judiciary but must be passed as acts of Congress.) The power over the procedural environment in which cases are heard and decisions are rendered is probably the power that is nearest the core of institutional judicial independence.

In addition to the Judicial Conference, there are two additional institutional components of judicial independence that were created by Congress in 1939: the Administrative Office of the U.S. Courts and the Circuit Judicial Councils. The first of these addresses the need for centralization of judicial administration; the second, the need for local control by judges over the environment in which they work. The Administrative Office of the U.S. Courts is a body of professional administrators subject to the direction of the Judicial Conference, which administers the federal court budget, personnel management, procurement, and other housekeeping and support functions. The 13 Circuit Judicial Councils are composed of the chief judges and an equal number of circuit and district judges. The Councils have two major duties. First, they provide the administrative oversight body for the circuit by overseeing the promulgation and efficacy of local rules, reviewing and supporting requests by the districts for new judgeships, and approving district court plans for the administration of juries and trials. Second, the Judicial Councils have the primary responsibility in the judiciary's disciplinary system.

Another independent but centralized institution of the judiciary is the Federal Judicial Center, created by Congress in 1967. The Federal Judicial Center is headed by the Chief Justice and is composed of six judges selected by the Judicial Conference and the director of the Administrative Office. The Federal Judicial Center has the responsibility to conduct research into judicial administration and issues relevant to the administration of justice, as well as to propose and prepare educational programs for federal judges.

Judicial Discipline

Because judges have life-tenure protection, and because the only power of removal open to Congress is the impeachment process, the authority to discipline judges for transgressions that do not arise from personal misconduct warranting impeachment was for a very long time unclear. For many years, the limited use Congress made of the impeachment power left a gap in the institutional fabric overseeing judicial misconduct. During these years, peer pressure among judges was the primary source of control, and generally the small size and relative cohesiveness of the federal judiciary was sufficient. When Congress created the Circuit Judicial Councils in 1939, it was not at all clear that they had actual disciplinary power. In 1973, the judiciary passed the Code of Conduct for U.S. Judges, but a disciplinary system was officially instituted and rationalized only later, by the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, in which Congress gave the federal judiciary a charter to devise its own self-disciplinary framework.

Under the act, any person may file a complaint that a federal judge "has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts or ... is unable to discharge all the duties of office by reason of mental or physical disability." Since 1990, the chief judge may also act without formal filing of a complaint upon obtaining information that suggests that action is appropriate. After considering a complaint, the chief judge may dismiss it by a written order stating reasons, if it does not comply with the act's requirements, if it is directly related to the merits or substantive decision in a case, or if it is frivolous. The chief judge may also conclude a proceeding if intervening facts -- either with respect to the misconduct or with respect to appropriate corrective action -- have resolved the subject matter of the complaint.

If the chief judge does not dismiss the complaint, he or she must appoint a special committee to investigate the complaint and file a written report with the Circuit Judicial Council, and the council itself may conduct additional investigation. For example, the Judicial Council may request that a judge retire, impose a freeze on assignment of cases to the judge, or issue a private or public reprimand. The act explicitly does not allow the Judicial Council to remove a judge from office, however. Removal remains possible only upon impeachment.

Conflicts of Interest

The fourth aspect of judicial independence is the importance of self-control and avoidance of prejudice. Each individual judge, more than any council or committee, is in the best position to assure that he or she does not decide a case in which he or she may be influenced by considerations other than the law.

Congress has imposed on judges a statutory duty to disqualify themselves from sitting in a case in which their impartiality may be questioned. Judges have an affirmative duty to investigate and find out whether they or their family members have a financial interest in the case before them. A judge must recuse if he or she has been involved in a case either by having private knowledge of the facts, by having acted as a private attorney or in any capacity for the government in the case, or by having worked with a material witness in the case.

To help in this process of self-reflection and recusal, as well as to provide some basis for oversight of the decisions judges make, Congress has imposed rules that regulate and require financial disclosure of any outside employment, earned income, activities, gifts, and honoraria that judges may receive. These requirements facilitate both awareness and accountability. The rules of recusal, and the degree to which judges conscientiously follow them to avoid conflicts of interest and prejudice, are central to assuring the independence of judgment, as well as to assuring the perception of the integrity of the judiciary in the eyes of the public.

Assuring the Efficacy of Judicial Decisions

The most independent of judges, reaching the most impartial of conclusions, will nevertheless be irrelevant to assuring a government of laws if government agencies that courts order to act in a particular manner refuse to do so, or if people do not pay the damages they are instructed to pay. An orderly society, enforcement mechanisms, and a habit of obedience to courts are essential elements of a system in which judicial independence is effective.

The most vexing questions with respect to compliance do not usually arise where the parties in front of a judge are private individuals. When a judge issues an order to an individual, the power of the state is cohesive behind the judgment, and an individual who resists likely will be facing police officers who enforce the court order.

A more complex problem arises when the addressee of an order is the government, and the government refuses to comply. Refusal to comply would be more likely if court orders were general, and were directed at institutions rather than individuals. The tradition in the United States, however, is that orders are issued to individuals. Thus, for example, if a court finds that a person did not receive a fair trial and must be released from prison, a court order on a petition for habeas corpus usually will not be issued against the state, or against the state's prison system. Rather, it will be issued against an individual, usually the prison warden or the director of a state's correctional system. This places the individual who has power to act in the name of the state in the uncomfortable position of having a court order directed at himself or herself, and creates the potential that, should the official fail to comply, the court will issue a contempt order, imposing a personal fine or even incarceration pending compliance. It is much more difficult for an individual to risk resistance to a court order than for the state to do so.

The most extreme cases of organized opposition on the part of state officials to orders from federal judges occurred in the late 1950s and early 1960s, when some states refused to obey orders from federal judges to desegregate educational institutions, buses, and restaurants. For example, when the state of Arkansas refused to desegregate its primary schools, the Supreme Court decision in the case, Cooper v. Aaron, reiterated that courts must be obeyed and that the desegregation order must be enforced. Following the decision, President Eisenhower sent the National Guard to Little Rock, Arkansas, to enforce the Court's ruling. The threat, no matter how remote and rare, that the federal executive will use force to support the federal judiciary remains a powerful background when federal judges order states to act in a particular way. It is not quite as pronounced, of course, when the orders are directed to federal officials, although the threat that federal marshals will knock on the door of any individual official specifically identified in a court order remains quite real.

Beyond all of the institutional assurances of compliance, however, the most important reason to think that a judge's decision will be efficacious is cultural, rather than institutional. An orderly society, in which people follow the rulings of courts as a matter of course, and in which resistance to a valid court order is considered unacceptable, is the core assurance that if cases are heard by impartial judges, who are free from the influences of politics, and who decide independently according to law, then the people subject to court orders will also behave according to law.

George Washington claimed that "the true administration of justice is the firmest pillar of good government," while Alexander Hamilton, in Federalist Paper No. 17, maintained that "the ordinary administration of criminal and civil justice ... contributes, more than any other circumstance, to impressing upon the minds of the people affection, esteem, and reverence toward the government." The good that proper adjudication can do for the justice and stability of a country is only attainable, however, if judges actually decide according to law, and are perceived by everyone around them to be deciding according to law, rather than according to their own whim or in compliance with the will of powerful political actors. Judicial independence provides the organizing concept within which we think about and develop those institutional assurances that allow judges to fulfill this important social role.

Issues of Democracy
USIA Electronic Journals, Vol. 1, No. 18, December 1996