Independence: why & from what?
“Judicial independence” is a concept easier to salute reflexively than to grasp fully. The why of judicial independence is simple enough: the rule of law clearly cannot survive alongside the “telephone justice” that Justice Stephen Breyer describes in his essay, justice administered by a party boss instructing a captive judge how to rule. The tens of thousands of Pakistanis who participated last June in what they called “the long march,” demanding the reinstatement of sixty judges dismissed by President Pervez Musharraf, offered powerful testimony to the importance that people around the world attach to the impartial and fearless administration of justice.1
But the question of what, exactly, we expect our judges to be independent from is a bit more elusive. Independence from overt political pressure and retaliatory dismissal, of course. But not from any and all constraints: we expect judges to be guided and constrained by precedent, by respect for the roles of the coequal branches of government, and by the norm of impartiality, the “detachment” that Justice Felix Frankfurter called the “essential quality” of the judicial function.2 Judicial independence and judicial accountability, as Stephen B. Burbank points out in this issue, are two sides of the same coin.
Nor do we expect judges to be spared public criticism. Judicial independence “is not immunity from criticism,” Chief Justice John G. Roberts, Jr. observed at the first of three Georgetown University Law Center conferences convened by his retired colleague, Justice Sandra Day O’Connor, to examine the current state of the judiciary.3 As Viet D. Dinh notes in his essay in this issue, more than one . . .
Endnotes
- 1Candace Rondeaux and Shaiq Hussain, “Pakistanis March for Restoration of Judges,” The Washington Post, June 14, 2008.
- 2Dennis v. United States, 341 U.S. 494, 525 (1951) (Frankfurter, J. concurring).
- 3Remarks of Chief Justice Roberts, September 28, 2006; at www.law.georgetown.edu/news/documents/CoJ092906-roberts.pdf