Essay 23 - Guest Essayist: Steven H. Aden

“He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”

The late U.S. Supreme Court Chief Justice William Rehnquist declared that judicial independence is the “crown jewel” of America’s constitutional system. Given the paramount value the Founders placed on the right to a jury trial, this seems counterintuitive. Surely judges can’t make decisions “independently” from those made by juries, in most cases. (In criminal cases, juries have virtually unlimited authority to acquit; in civil cases, however, their decisions are subject to the judge’s review and may be set aside if they are patently unreasonable.) From whom should judges be independent, and to whose authority should they be accountable?

For the Colonists of the Revolutionary period, the answer was plain and simple: judges should be accountable to the people they serve, acting through their own legislatures, and not to the King alone. The Indictment, presented by the Declaration of Independence, charged that King George “[H]as made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”

The experience of Massachusetts was still fresh in the minds of the Founders. An act of Parliament in 1773 had decreed that the salaries of judges would be paid by the King at his discretion, and forbidden them to receive salaries from the colony’s legislature. John Adams, a Bostonian and later contributor to the Declaration and America’s second president, observed, “This as the Judges Commissions were during pleasure made them entirely dependent on the Crown for Bread [as] well as office.” Adams explained:

It was by all Agreed, As the [Royal] Governor was entirely dependent on the Crown, and the [colonial] Council in danger of becoming so if the Judges were made so too, the Liberties of the Country would be totally lost, and every Man at the Mercy of a few Slaves of the Governor.

After the founding of the Republic, the focus shifted to the question of the new federal judiciary under Article III of the Constitution. The perceived danger of a centralized federal court system was a rallying point for anti-Federalists who opposed the Constitution of 1787, so much so that Alexander Hamilton famously assured the new states that the judiciary would be “the least dangerous” branch, as it had no army or police force to impose its will, nor the power over the treasury. The question of accountability would be solved in two ways: First, Sec. 1 of Article III provided that “[t]he judicial Power of the United States[] shall be vested in one [S]upreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” thereby making all federal courts below the Supreme Court accountable to the people through their Congress. Further, Sec. 1 said, all federal judges “shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” For Hamilton, protecting the salaries of federal judges was as critical as protecting their jobs: “In the general course of human nature, a power over a man’s subsistence amounts to a power over his will,” he cautioned. So, for the Framers of the Constitution, the balance between independence and accountability in the federal judicial system would be struck by appointing judges with lifetime tenure and salary security, who could only be removed by impeachment, like the president.

In the states, this balance has been sought in different ways. Although some states have a similar system of appointment and job security, a majority of states select at least higher-level judges by popular ballot, although some mandate that elections be held on a non-partisan basis. This form of popular selection has given rise to its own set of problems stemming from judges’ need to represent majoritarian views in order to be elected by a popular vote. In some states, a compromise approach has been adopted, by which judges are initially appointed by the governor from a list of candidates drawn up by an independent “judicial selection commission” and then subjected to a popular “retention election” some years into their tenure.

In 2009, the U.S. Supreme Court was asked to decide if the federal constitution has anything to say about the fundamental fairness of state judicial elections. One of the largest coal companies in America, Massey Coal Co. of West Virginia, was facing a jury award against it for fraud in the amount of 50 million dollars. One of the justices of the West Virginia Supreme Court had refused to recuse himself from hearing Massey Coal’s appeal, even though he had received election campaign contributions amounting to $3 million from the Chairman of the Board of Massey Coal. The supreme court of West Virginia twice heard the appeal, and twice reversed the judgment against Massey Coal by a vote of 3-2. The second time, the justice who received Massey Coal’s largesse rejected the results of a public opinion poll that showed that over two-thirds of West Virginians doubted his ability to be fair and impartial in the case.

The U.S. Supreme Court concluded (albeit by a split 5-4 vote) that the federal constitution’s guarantee of due process of law required recusal under the circumstances. Echoing the Founders in the Declaration, and the Framers of the Constitution, the Supreme Court’s majority observed, “It is axiomatic that ‘[a] fair trial in a fair tribunal is a basic requirement of due process….’ Under our precedents there are objective standards that require recusal when ‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’”

So the federal guarantee of due process sets constitutional limits on the judicial selection systems of the sovereign states, the Court concluded. Massey Coal was a Rubicon so wide that many constitutional scholars and judges believe it should never have been crossed. But the lesson Massey Coal teaches is central to the federal system of dual sovereignty: that while states are not bound to emulate the federal judiciary’s means of calibrating judicial independence and accountability, whatever the means they choose to employ have to ensure the constitutional right to due process in all cases.

Steven H. Aden serves as Chief Legal Officer & General Counsel at Americans United for Life. Aden joined Americans United for Life in August 2017, overseeing all legal operations of America’s most effective pro-life organization. Aden is a highly experienced litigator, having appeared in court against Planned Parenthood and the abortion industry dozens of times and appointed by the attorneys general of six states to defend pro-life laws. A prolific author and analyst on sanctity of life issues and constitutional jurisprudence, Aden is admitted to the bars of the District of Columbia, Virginia, and Hawaii (inactive), and is a member of the bars of the U.S. Supreme Court and numerous federal circuit and district courts. He has practiced law since 1990 and earned his J.D. (cum laude) from Georgetown University Law Center and his B.A. from the University of Hawaii.


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