Recent polls have shown a dismaying ignorance of civics and American history among Americans. Less than half of American adults can identify the three branches of government: the legislative, the executive, and the judicial. This might help explain the vitriol, death threats, and violence that our judicial officers confront on a regular basis.
But the American Founders never intended the judiciary to be a political branch.
As Alexander Hamilton explained in the Federalist Papers, of the three branches, the judicial branch is the “least dangerous to the political rights of the Constitution.” It does not set policy. It can never take the initiative. Judges can only resolve cases and controversies that are brought before them.
The judiciary is bound by the federal and state constitutions ratified by the people as well as the law made by the legislative branch and enforced by the executive branch. The judiciary has awesome power, but it is completely hemmed in by the two political branches. The judiciary was purposefully insulated from the passions of the day via life tenure for judges in the federal government and infrequent elections in most states.
Which is a long way of saying, judges should not curry favor with the public. Justice is not adjudicated by taking opinion polls. Judges should not be swayed by protests, Tweets, Facebook posts, parades, or threats. We render justice by judge and jury, not by rioting mobs. We make decisions through proven facts and governing law. State and federal elected officials pandering to score quick political points must be ignored. To succumb to these outside pressures would make a mockery of justice.
There are many reasons why the independence of the judiciary is indispensable to our constitutional republic. Here are three:
1). Rule of Law. Samuel Adams explained that the “first principles of natural law and justice” include that government “has no right to absolute arbitrary power over the lives and fortunes of the people . . . but it is bound to see that Justice is dispensed, and that the rights of the subjects be decided, by promulgated, standing and known laws.” Judges are the guardians of the Constitution and the rule of law. Judges take an oath to affirm the law, not popular whims.
2). Justice. Court proceedings adhere to due process by giving notice, requiring evidence, and coming to decisions through an impartial decision-maker. All are essential to achieve justice. This takes time and profound deliberation. Catchy slogans and 280-character Tweets are cathartic but deadly. Imagine being accused of murder—would you rather face an impartial judge and a jury of your peers or leave it to Twitter?
3). Truth. Cherry-picking a single fact or conclusion from a complicated legal proceeding paints a biased picture. Both mainstream and social media feasts on controversy to push agendas, increase clicks, and sell advertisements. Social media is almost by definition inaccurate and often toxic. Where is the last refuge for finding the truth in this environment? The courtroom. In fact, that is the whole purpose of the court system: to find the truth.
At times, judging can be difficult and often involves matters of discretion and sorting out competing claims and considerations. Like any human institution, no judge is infallible. Hence the need for appellate courts and tenure commissions. If mistakes are made, they should be addressed by higher courts, tenure commissions, or the ballot box. Only by affirming judicial independence can we hope to maintain the rule of law, ensure justice, and find the truth.
Hon. Michael Warren has served on the Oakland County Circuit Court for over 17 years, is host of the Patriot Lessons: American History & Civics podcast, and authored America’s Survival Guide.
