Judicial Independence Under Fire
Today, more than ever, the question of judicial independence has come to the forefront of discussion throughout this nation, including Congress. It is argued by the opponents of South Dakota Amendment E that this state initiative will destroy judicial independence. However, as revealed below, some serious constitutional questions are being raised by various state legislatures about the proper relationship that must be held between the legislative and the judicial branch of government.
The U.S. Constitution instructs in Art. III, Sec. 2, Cl. 2, in part: "...the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." (emphasis added). Checks and balances require that legislatures place reins upon the judiciary as needed to keep them from using "independence" to run rampant over the other two branches of government, and the rights of the People. As acknowledged below, this may require proposing constitutional amendments among the states.
- Ron Branson, Author/Founder of J.A.I.L.
It May Take A Constitutional Amendment To Rein In Judiciary
By Richard S. Kay
September 17, 2006
Events this year have convinced some people that something is wrong with the
relations between the courts and the other branches of government, between the
courts and the press, and between the courts and the public.
In the spring, the state Supreme Court held that computerized case schedules
were not open to public examination under the Freedom of Information Act. The
chief justice delayed publication of that decision to influence the confirmation
of his successor. This summer, a legislative committee subpoenaed the chief
justice, but a trial judge, citing the independence of the judiciary, ruled he
need not testify. Now the retired chief justice is facing the Judicial Review
Council on charges that he violated the judicial code of ethics.
Two commissions, one named by the senior presiding justice of the Supreme Court,
the other by the governor, are soon to report on possible judicial reforms.
Several questions are on the table - what judicial records should be public, how
should judges and lawyers be disciplined, who may draft rules of procedures.
But there is a more fundamental issue - not what things to change, but who may
change them. That issue cannot be resolved by anything less than an amendment to
the state Constitution.
About 30 years ago, the Connecticut Supreme Court started taking a new and
assertive view of its own constitutional authority. It held that the legislature
had no power to regulate the operations of the courts. These holdings were, to
put it charitably, arguable as a matter of constitutional law.
The Supreme Court has never defined this exclusive judicial authority with much
precision. In fact, in recent years, it has gone out of its way to avoid
invoking it. Instead, the courts have found ways to protect judicial turf
without actually holding legislation unconstitutional.
Sometimes, this takes the form of stretching (even to the breaking point) the
meaning of a potentially encroaching statute. Sometimes, the courts and
legislatures quietly compromise disputed matters before a law is enacted. Of
course, in such discussions, the threat of the courts holding unwelcome
legislative initiatives unconstitutional is always the 800-pound gorilla in the
corner.
However, some issues cannot be evaded, obscured or finessed. The chief justice's
attempt to influence the legislative power of judicial confirmation has forced
the governor and General Assembly to face the implications of the Connecticut
judiciary's bold claims of immunity from external regulation of any kind.
This may be the moment to reconsider the central problem of constitutional
authority. If we do, we will need to think again about the meaning and value of
"separation of powers."
Judicial openness, procedural rules and judicial discipline raise important
questions of public policy. In our system of government, such questions are
matters of law-making and have been committed to representatives who are
accountable to the people.
The legislature, of course, acts subject to the rules of the state Constitution.
Among those rules is the commandment that state power must be divided between
three independent branches. Legislation may not impose requirements on the
judiciary or on the governor that make it impossible to carry out their
essential functions. For courts, those functions are hearing and deciding legal
disputes. We might disagree on just what laws would have such a destructive
effect, but it is obvious (from the experience of other states and the federal
government) that no Connecticut statute in memory has remotely approached that
level.
In fact, in the American version of separation of powers, judicial, legislative
and executive functions are never exercised in isolation. They inevitably
collide with, or require the cooperation of, the other departments. Judges need
legislation to organize and fund the courts; they need police and prisons to
enforce criminal convictions.
At every turn, each "independent" branch relies on the other branches. That is
no accident. It is part of a constitutional plan to make the exercise of state
power more difficult. "Ambition," as James Madison said, "must be made to
counteract ambition."
This design has been put at risk by judicial insistence on broad, exclusive
powers. Since this position has been deployed in un-reviewable constitutional
terms, there is no way to overcome it except by constitutional amendment.
Such an amendment would reserve to the legislature the authority to make law
governing the general operations of the courts - not the decision of cases. It
might mention court rules, judicial organization or the openness of proceedings.
All these matters are regulated by elected legislatures elsewhere without
notable damage to the rule of law.
It would be a great mistake to leave untouched Connecticut judiciary's vague and
restless claim to final say. That is the problem that has produced all the
others. The process of constitutional amendment is slow and difficult, but this
may be a perfect time to start it.
Richard S. Kay is Wallace Stevens Professor of Law at the University of
Connecticut School of Law in Hartford.
Copyright 2006, Hartford Courant
See "Independence of the
Judiciary"