Rethinking Absolute Judicial Independence

The judicial establishment is angry. In the first weeks of his second administration, Donald Trump issued multiple executive orders deporting Venezuelan gang members, firing federal workers, and halting the disbursement of tax dollars. Opponents descended upon the federal courts and obtained nationwide injunctions and other orders stopping the president’s efforts.

Under the usual kayfabe political rules, the president was supposed to move on to other matters and assure supporters that he had tried to fulfill campaign promises but was required to defer to the independent judiciary. Trump had other ideas.

Directing his initial fire at Judge James Boasberg, who stopped the deportation flights of Tren de Aragua gangsters, Trump fumed: “This judge, like many of the Crooked Judges I am forced to appear before, should be IMPEACHED!!!” He further described Boasberg as a “Radical Left Lunatic” and a “troublemaker.” Six House Republicans introduced Resolution 229, charging Boasberg with the abuse of power and seeking his impeachment.

J. Michael Luttig, a former federal judge and a Never Trumper, accused the president of leading “a full-frontal assault on the constitution, the rule of law, the federal judiciary, the American justice system and the nation’s legal profession.” Chief Justice John Roberts chimed in to lecture the president: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate process exists for that purpose.”

Most Americans nod in agreement, remembering their high school civics lessons on how judges should be insulated from popular opinion and political pressure. Unbounded judicial independence, we have been taught, is a blessing conferred by the Founding Fathers. Who is Donald Trump to challenge this precept?

Unwittingly, Trump’s fight with the judiciary exposes a structural defect in our Constitution: a lack of accountability in the judiciary. Judges are agents of the people, but the people have no direct or indirect recourse to discipline or remove them. Commentators on the right have spilled gallons of ink on the dangers posed by unelected and unaccountable officials in the administrative state. They recently cheered the demise of the legal doctrine Chevron deference, which required courts to defer to agency interpretations of statutes. But they hardly noticed that power had merely passed to another group of unelected and unaccountable officials: federal judges. Judicial independence is a shibboleth that no one questions.

In the midst of Trump’s brawl with the judicial establishment, Americans should reexamine the principles of judicial power that they’ve taken for granted. The Anti-Federalists—the opponents of the Constitution of 1787—offered a prescient and unanswered critique of total judicial independence. Unfortunately, their arguments have been ignored, as the The Federalist Papers are accepted as American Gospel. The Anti-Federalists’ criticism, however, deserves a second look.

Writing in the New York Journal, “Brutus” (possibly the pen name for New York judge Robert Yates) predicted that the people would feel the effects of the new government not through the political branches, but through “the medium of judicial power.” Brutus based this assertion on Article III, which he interpreted as authorizing the judges “to determine all questions that may arise upon the meaning of the constitution in law.” Interpretation, he predicted, would not be limited to the text of the document because of the Constitution’s “general and indefinite terms.” Thus the judges would “explain the constitution according to the reasoning and spirit of it.”

Brutus divined that Congress would defer to the courts on the construction of the delegated powers. The federal judiciary, Brutus averred, “will lean strongly in favor of the general government and will give such an explanation to the constitution as will favor an extension of its jurisdiction.” The federal legislators would enjoy exercising additional powers, whereas “the dignity and importance of the judges” would be augmented by nationalizing matters formerly handled by the states.

As a former British colonial subject, Brutus understood something about sweeping power. The power and jurisdiction of the British Parliament, as Blackstone observed in his Commentaries, “is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds.” But under the British system, this omnipotent Parliament (at least the House of Commons) had to face the people at the ballot box. The federal judiciary under the Constitution faced no one.

Thus Brutus described in the 18th century how the U.S. Constitution would create an unaccountable judiciary “unprecedented in a free country.” He objected that “they are independent of the people, of the legislature, and of every power under heaven.” Before long the judges would “feel themselves independent of heaven itself.”

Based on the power and independence of federal judges, Brutus questioned the Constitution’s wisdom in conferring judicial office during “good behavior.” Good behavior, a very low bar, means proper and peaceable conduct expected of law-abiding citizens.

Judicial service during good behavior, Brutus knew, supported British liberty. Prior to the 1701 Act of Settlement, the monarch could remove a judge for any reason. The Act allowed British judges to resist the crown, but this courtesy did not extend to the colonies. One of the charges against George III in the Declaration of Independence was that colonial judges served at his pleasure rather than during good behavior.

“I do not object to the judges holding their commissions during good behavior,” Brutus wrote. “I suppose it is a proper provision provided they were made more properly responsible.” Accountability of servants in government to the people was an Anti-Federalist theme. Whereas the omnipotent Parliament was the master of the British constitution, the people were the masters of the federal and state constitutions.

The principle of popular sovereignty is set forth succinctly in the second article of Virginia’s declaration of rights: “That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.” As explained by historian Gordon Wood, in the United States “all governmental officials, including the executive and judicial parts of the government, were agents of the people, not fundamentally different from the people’s nominal representatives in the lower house of the legislatures.” It follows that executives, legislators, and judges serve the people as fiduciaries and are bound to answer to the people for their exercise of authority.

Brutus realized that federal judges were not accountable to the people or even to their representatives in the political branches. Moreover, because of differences between the British and Americans systems, he understood making the judiciary depend on good behavior would be dangerous.

First, Brutus pointed out that judicial review was unknown in the British system. Because Parliament was omnipotent, a judge could not overturn an act of Parliament. A judge could interpret a parliamentary statute if an ambiguity existed. But if Parliament passed a statute clarifying its intention, the judge was required to set aside his prior interpretation and respect the parliamentary clarification. Under the Constitution of 1787, Brutus expected judges to set aside acts of Congress “inconsistent with the sense the judges put upon the constitution.” Federal judges would be more powerful than British judges.

Second, Brutus observed that good behavior in Britain was meant to protect the judiciary from an unelected monarch who, in recent memory, had claimed to rule by divine right and to possess ultimate power. Tenure during good behavior protected the people and Parliament from the expansion of the king’s prerogative power. “But these reasons do not apply to this country,” Brutus explained. The United States had “no hereditary monarch” and “those who appoint the judges do not hold their offices for life.”

Third, Brutus noted that errors made by British judges could be corrected by the House of Lords, which was part of Parliament and served as the highest court in Great Britain. If the American Supreme Court made an erroneous constitutional ruling, Brutus perceived that the judgment could not be corrected. Brutus did acknowledge that judges could be impeached, but he doubted that errors in judgment would form the basis for articles of impeachment.

Brutus’ essays on the judiciary appeared in the spring of 1788 in New York. The Federalists’ most able penman, Alexander Hamilton, responded toward the end of May 1788. Writing as “Publius,” Hamilton denied that the courts would pose a threat and insisted they “will always be the least dangerous to the political rights of the constitution.” As the courts had no power over the purse or the sword, Hamilton concluded that “the general liberty of the people can never be endangered” by the federal judiciary.

Hamilton agreed with Brutus that the federal courts would exercise judicial review. He denied that such a power would make the courts superior to Congress. “It only supposes,” Hamilton concluded, “that the power of the people is superior to both.” Judicial encroachments, he continued, were “a phantom” conjured up in the Anti-Federalist mind. Hamilton acknowledged that the American courts had no monarch to worry about but insisted that good behavior was appropriate if the judges “be considered as the bulwarks of a limited constitution against legislative encroachment.” Without significant independence, the judges would lack the fortitude to serve “as faithful guardians of the constitution.” In the event the judges did exceed constitutional bounds, Hamilton predicted quick impeachment by the House and conviction in the Senate.

While Hamilton points to judicial review as flowing from popular sovereignty, he ignores that popular sovereignty also requires that all of the people’s agents be accountable to them. Judges are to protect the limited Constitution because it is the people’s fundamental law. Of course, the executive and legislators have the same duty to protect the Constitution. Indeed, they take an oath to support the Constitution. With duty, accountability must follow.

But doesn’t impeachment satisfy accountability? Not in theory or in practice. A Senate conviction in an impeachment proceeding requires a two-thirds vote. This is a significant hurdle. For the people to remove a congressman or president at a regularly scheduled election, a majority vote is required. Moreover, for a change of agents in the White House or in Congress, the people need not find that their existing agent engaged in “treason, bribery, or other high crimes and misdemeanors.” As the ultimate sovereigns, the people can choose servants for good reasons, bad reasons, or no reasons.

Since 1805, in the words of Thomas Jefferson, impeachment has not even been “a scarecrow.” This is because of the botched impeachment of Justice Samuel Chase, who habitually gave political harangues from the bench and was unfair toward defendants who did not share his political leanings. The impeachment trial was handled by John Randolph of Roanoke, who had no legal training. Randolph made a wreck of the presentation and the Senate did not convict.

What does the structural omission of judicial accountability mean for today? And why, after the passage of more than 230 years since ratification, should we care? As to the latter question, Americans should care because, since the Warren Court years, federal judges have regularly made public policy. Federal courts regulate such matters as state implementation of the death penalty, state marriage licenses, and Christmas decorations on public property, to name just a few examples. The rise of substantive due process in the late 1800s and the incorporation of the Bill of Rights against the states in the 20th century markedly expanded judicial power.

So what shall we do to correct the Framers’ error? A simple thing would be to stop the pearl-clutching when Trump or some other commentator makes a critical statement about a jurist. Judges are not a priesthood entitled to more deference than, say, a congressman, president, or agency bureaucrat. Federal judges are politicians. Their political skills are not used to market their merits to the masses during elections, but to select individuals who have access to senators, White House counsel, or others with a say in the judicial nomination process. As mere cloakroom politicians, they are owed no special esteem.

Next, we must patch the hole in constitutional fabric. In so doing, we should heed the advice of Virginia’s great revolutionary and jurist Edmund Pendleton. In October 1801, Pendleton addressed a public excited about the election of Thomas Jefferson to the presidency. Pendleton’s bona fides were well known: member of the Continental Congress, first speaker of Virginia’s House of Delegates, and presiding officer in the Virginia ratification convention that approved the U.S. Constitution.

In his letter entitled “The Danger Not Over,” Pendleton declared that he had no “intention to damp the public joy occasioned by the late changes of our public agents.” The defeat of Federalists John Adams and Alexander Hamilton at the ballot box, in his view, “arrested a train of measures which were gradually conducting us toward ruin.”

Pendleton had supported the Constitution of 1787, but during its 12 years in operation he observed troubling defects. One of the defects dealt with accountability of the federal judiciary. He urged modification of the Constitution by “subjecting the judges to removal by the concurring vote of both houses of Congress.” Such a change, Pendleton contended, would “erect new barriers against folly, fraud, and ambition.”

Pendleton’s proposal makes good sense. Absent impeachment for a crime of moral turpitude, judges have no fear of removal. Pendleton’s proposal would permit the people’s elected representatives in the House and Senate to dismiss a judge for any reason. Critics will clamor that abuses and widespread removals will follow elections. But getting the two houses of Congress to agree on anything is no easy task. For example, despite Republicans controlling the House and the Senate, President Trump has little hope that Congress will enact immigration reform, which was the critical issue resulting in Trump’s return to power. If anything, Pendleton’s proposal will suffer from desuetude rather than overuse.

Nevertheless, the mere existence of a removal mechanism will serve as a check on the judiciary. For the first time in U.S. history, federal judges would face the possibility of losing their lucrative jobs and high status. The prospect of removal will surely influence them to think twice before issuing nationwide injunctions stopping the deportation of gang members or discovering new constitutional rights to engage in depraved conduct and lifestyles.

Constitutional amendments—by design—are not easy to achieve. But Trump’s latest skirmish with our black-robed elite highlights the need for judicial accountability. Brutus observed the flaw before the Constitution went into operation. Pendleton spied it after a decade of operation. We, the living, can plainly see that Hamilton was wrong in his assessment of the judiciary as the least dangerous branch requiring absolute independence to survive. Removal by both houses is not a panacea, but it would be a good start in making the judges answerable for their conduct.