What do you mean, ‘judicial independence’?

By Richard Schulman
The concept of judicial independence has been in the news a lot lately. In Poland, the government is being accused of destroying judicial independence because the Polish Parliament wants to remove and replace all judges, supposedly because too many are leftover communists. In Venezuela, the Supreme Court turned the tables, nullifying all laws passed by their Congress and taking over lawmaking functions. Everyone seems to agree that judicial independence is a good thing. The first question to ask, though, is rarely asked: independent of what? And the second question is also worth asking: who decides?

The expectation most people have of judges is consistent with high school civics classes: the legislative branch writes the law, the executive implements it, and judges interpret it. Indeed, if a judge were accused of not being bound by the law, he or she would react angrily. Thus, the most commonly offered definition of judicial independence is that judges are protected from repercussions, such as being removed from office, for doing their jobs – i.e., interpreting the law as they decide cases.

The problems of how to measure this protection, and deciding who does so, are more complicated than they look. For example, the U.S. Constitution provides for lifetime appointments for judges, but only “during good Behavior.” Thus, Congress can impeach and remove judges whenever it wants, but in practice it tends to exercise this power only for what a consensus would agree was corruption. Popular efforts to impeach former Chief Justice Earl Warren for the substance of his opinions, for example, fell flat.

In California, the voters have some power to decide whether to remove judges. Superior Court judges are theoretically elected, but in practice the vast majority are appointed by the governor and never face the voters. The governor appoints appellate justices and justices of the Supreme Court, who are then subject to occasional yes/no votes by the public. Several of Jerry Brown’s appointees (in his first pair of terms as governor) to the Supreme Court were removed by the electorate. Does this mean California’s judges lack judicial independence?

California judges can also be removed by the Commission on Judicial Performance. Most recently, that commission censured a local judge for what it viewed as misconduct in the way he acted in his courtroom. The investigation led his political supporters to suspect he was being punished for his unusual (for California) political views.

President Trump has been denounced for limiting judicial independence by criticizing judges and their rulings. However, those judges faced no substantive repercussions; they’re still on the bench, earning their salaries and pensions and issuing more rulings Trump dislikes. More broadly, the notion that government officials, including judges, can’t be disagreed with or criticized in public is an affront to free speech, a right all sides enjoy.

The issue of judicial independence also arises whenever the president or governor appoints a judge. The opinions of the California Supreme Court show that Governor Brown is not appointing diverse candidates, in the sense of having diverse views on ideological issues. However, neither executive has any power to remove a judge from office who strays from an ideological position. Indeed, two of the strongest liberals on the U.S. Supreme Court in the last few decades – John Paul Stevens and Steven Breyer – were appointed by Republicans.

This leads back to the first question: independent of what? I think California’s voters answered that question in 1986 when they removed Rose Bird, Cruz Reynoso, and Joseph Grodin from the state Supreme Court: judges are free to decide cases until they become independent of the law. What galvanized voters then was the sense that those three justices were violating their oaths to honor the law. Judges should have complete independence to decide cases, as long as their decisions honor the law as it is written. This view of judicial independence comports well with common understandings and constitutional standards.

(My favorite Cruz Reynoso opinion was one he wrote when he was on the Court of Appeal. He acknowledged that an environmental report he was considering was complete and accurate, but rejected it anyway because he didn’t like its “thrust.”)

There are many reasonable answers to the second question: who decides? In the federal system, it is Congress. In California, it is the voters. When the voters rejected Bird, Reynoso and Grodin, they reelected equally liberal Stanley Mosk with roughly 75 percent of the vote. The principal issue was the sophistry the three defeated justices used to nullify laws regarding the death penalty and to rewrite other laws.

In this light, the California Supreme Court’s recent Briggs decision becomes more interesting. In that case, the court nullified a provision of an initiative (Proposition 66) requiring that they prioritize death penalty cases to decide them within a few years. The justices split over whether the deadline was absolutely void or simply ignorable (“directory”), but all agreed that requiring that they expedite a decision violated their rights as judges. Interestingly, they issued over 100 pages of final opinions in Briggs, comparable to their work product in a death penalty case, in less than a year since the initiative was adopted last November.

So can we agree on what actions infringe on judicial independence? Probably not. But our institutions, whichever one has the authority to decide, do seem to bend over backwards to protect it.

Richard Schulman is an attorney with Hecht Solberg Robinson Goldberg & Bagley LLP (HechtSolberg) in San Diego, specializing in land use and municipal law. His views and opinions expressed in this commentary are not official views or opinions of the firm. He may be reached at rschulman@hechtsolberg.com.