In November, South Dakotans will vote on a state constitutional amendment being advocated by a national group called "JAIL 4 Judges." If the amendment passes, it would eliminate judicial immunity, and enable a special grand jury to censure judges for their official legal determinations. Although the amendment's supporters claim they seek a "judicial accountability initiative law" (JAIL), they aspire to something far more sinister --judicial intimidation. Indeed, the national Web site of JAIL 4 Judges boasts with striking candor that the organization "has that intimidation factor flowing through the judicial system."

 

It is tempting to dismiss this proposed amendment as merely an isolated bout of anti-judge angst. But while the JAIL 4 Judges initiative is unusually venomous, it is far from alone in expressing skepticism of the judiciary. In addition to South Dakota, this election cycle has witnessed efforts in at least three other states that are designed to rein in judges who have supposedly "run amok."

 

Not to be completely outdone, Congress also has engaged in recent efforts to police the judiciary. Seeking to constrain the legal sources that are available to judges, some members of Congress have advocated measures that would forbid judges from citing foreign law when they are interpreting the Constitution. In addition, bills have been introduced in both houses of Congress supporting the creation of an inspector general to investigate and monitor the federal bench. Finally, the House of Representatives passed legislation over the summer that would prohibit the Supreme Court from considering whether the Pledge of Allegiance's inclusion of the words "under God" violates the First Amendment.

 

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Directing anger toward judges enjoys a long --if not exactly venerable-- tradition in our nation. President Thomas Jefferson, for instance, was a particularly spirited antagonist of judges appointed by the Federalists. Moreover, President Franklin D. Roosevelt sought to increase the number of Supreme Court justices because the court invalidated several pieces of New Deal legislation. And I can distinctly remember seeing lawns and highways across the country that featured signs demanding the impeachment of Chief Justice Earl Warren.

 

But while scorn for certain judges is not an altogether new phenomenon, the breadth and intensity of rage currently being leveled at the judiciary may be unmatched in American history. The ubiquitous "activist judges" who "legislate from the bench" have become central villains on today's domestic political landscape. Elected officials routinely score cheap points by railing against the "elitist judges," who are purported to be [out] of touch with ordinary citizens and their values. Several jeremiads are published every year warning of the dangers of judicial supremacy and judicial tyranny. Though these attacks generally emit more heat than light, using judges as punching bags presents a grave threat to the independent judiciary.

 

Troublingly, attacks on the judiciary are now being launched by judges themselves. Earlier this year, Alabama Supreme Court Justice Tom Parker excoriated his colleagues for faithfully applying the Supreme Court's precedent in Roper v. Simmons, which prohibited imposition of the death penalty for crimes committed by minors. Offering a bold reinterpretation of the Constitution's supremacy clause, Justice Parker advised state judges to avoid following Supreme Court opinions "simply because they are 'precedents.' " Justice Parker supported his criticism of "activist federal judges" by asserting that "the liberals on the U.S. Supreme Court ... looked down on the pro-family policies, Southern heritage, evangelical Christianity, and other blessings of our great state."

 

It should come as no surprise that the increased scapegoating of the judiciary has coincided with an increase in anger directed toward individual judges. In the last decade, threats and inappropriate communications directed toward the federal bench have more than quadrupled. According to the U.S. Marshals Service, complaints about such behavior were being logged at a record-setting pace this year. And while it is encouraging that Congress recently set aside funds for federal judges to have home security systems installed, it is deeply dispiriting that the demand for the systems among the judges was so high. Judge David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit was quite right when he observed, "Judges must be free to make judicial decisions without the fear of physical harm to themselves or to members of their families."

 

Given the escalating criticism that is leveled at judges, it seems appropriate to bear in mind the reasons that the Framers initially established an independent judicial branch. In Federalist No. 78, Alexander Hamilton explained why, in our constitutional system, "the complete independence of the courts of justice is peculiarly essential." Hamilton contended that the judiciary needed to be distinct from the legislative and executive branches because that was the best way to guarantee "a steady, upright, and impartial administration of the laws." Hamilton also believed that judicial independence was necessary in order to safeguard against "injury of the private rights of particular classes of citizens, by unjust and partial laws." It is well worth remembering that, far more often than not in modern times, the judiciary has admirably performed these two vital tasks: checking the other two branches and protecting minority rights.

 

An independent judiciary does not mean, of course, that it is somehow improper to criticize judicial decisions. To the contrary, it is a healthy sign for democracy that the public is engaged with the workings of the judicial system. Judges can --and do-- sometimes render erroneous decisions, but that is why appeals are allowed to higher courts. Moreover, judges can be --and are-- subjected to discipline for legitimate reasons. Members of the judiciary cannot sincerely believe that they should be regarded as above the very laws that they are charged with interpreting. Ours is, after all, a nation of laws, not men --or even women.

 

Nonetheless, we must be more vigilant in making sure that criticism does not cross over into intimidation. Judges and lawyers certainly play essential roles in opposing attacks on the judiciary. Indeed, later this week, I --along with Justice Stephen Breyer-- am co-chairing a conference on judicial independence at Georgetown University Law Center. But the legal community needs help from other sectors of society to ensure that the current mood of cynicism does not end up compromising the rule of law. This includes members of the business community. Adam Smith, writing in "The Wealth of Nations," well understood the importance of an independent judiciary: "[U]pon the impartial administration of justice depends the liberty of every individual, the sense which he has of his own security." Without judicial independence, Smith warned, "it is scarce[ly] possible that justice should not frequently be sacrificed to what is vulgarly called politics."

 

More broadly, of course, all of society has a keen interest in countering threats to judicial independence. Judges who are afraid --whether they fear for their jobs or fear for their lives-- cannot adequately fulfill the considerable responsibilities that the position demands. In these challenging and difficult times, we must recommit ourselves to maintaining the independent judiciary that the Framers sought to establish.

 

Justice O'Connor is a retired associate justice of the Supreme Court of the United States. 

 

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J.A.I.L.'s Response to Justice O'Connor:

Her WSJ article is titled "The Threat to Judicial Independence." We will address that subject later, but first we address her specific statements made in the article.

Justice O'Connor first contends: If the amendment passes, it would eliminate judicial immunity, and enable a special grand jury to censure judges for their official legal determinations. Although the amendment's supporters claim they seek a "judicial accountability initiative law" (JAIL), they aspire to something far more sinister --judicial intimidation. Indeed, the national Web site of JAIL 4 Judges boasts with striking candor that the organization "has that intimidation factor flowing through the judicial system."

Amendment E will "eliminate judicial immunity" in only limited circumstances. Paragraph 2 specifies seven violations for which "no immunity shall extend to any judge..." Paragraph 3 provides, in part: "Their [the Special Grand Jury] responsibility shall be limited to determining, on an objective standard, whether any civil lawsuit against a judge would be frivolous or harassing, or fall within the exclusions of immunity as set forth in paragraph 2, and whether there is probable cause of criminal conduct by the judge complained against."

Those provisions show that "the exclusions of immunity" apply only to the violations set forth in paragraph 2, and will not apply if "any lawsuit against a judge would be frivolous or harassing." No immunity covers criminal conduct.

"...enable a special grand jury to censure judges for their official legal determinations" is a lie regarding Amendment E. The Justice cites nothing in the Amendment that supports that contention. The responsibility of the Special Grand Jury is stated in paragraph 3 of the Amendment, and is quoted above. J.A.I.L. has nothing to do with "official legal determinations" --only with specified judicial violations of procedural law (¶2). Nor does the Justice cite anything in the Amendment about "censur[ing] judges." The People (SGJ) merely determines whether there is enough evidence on the record to hold a judge to account at a subsequent trial, similar in process to a probable cause determination by a magistrate. It's all based on the court record presented to the SGJ. The SGJ does not blame, criticize, or reprimand a judge, but merely holds him/her accountable for alleged violations of law. J.A.I.L. is concerned only with judicial procedure, and does not reach "official legal determinations."

"[T]hey aspire to something far more sinister --judicial intimidation. Indeed, the national Web site of JAIL 4 Judges boasts with striking candor that the organization "has that intimidation factor flowing through the judicial system." Although "judicial intimidation" will undoubtedly be the result, or by-product, of judges being held accountable to the People, that isn't what J.A.I.L. "aspires to." The real agenda of J.A.I.L. is enforcement of the Constitution.  The quote from our national website is taken out of context by Justice O'Connor. It refers to the fallout resulting from requiring judicial accountability to the People, specifically discussing the psychology behind our J.A.I.L. T-shirt design.  Judges don't want to be the "intimidatees" --they're used to being the intimidators!

Justice O'Connor knows that J.A.I.L. isn't quite as simple as "an isolated bout of anti-judge angst." She realizes that the chickens have come home to roost across this country regarding our failed judicial system. Indeed she recognizes that the long comfortable ride that the judiciary has enjoyed for more than 200 years is about to come to an end. There's finally going to be some pain experienced by the judiciary after a long train of abuses and usurpations, resulting in their counterfeit, albeit effective, kingship in America.

The Justice refers to the J.A.I.L. Initiative (Amendment E) as being "unusually venomous." Yes, Justice O'Connor, it's going to sting for a while, but it will eventually prove to be a good thing, not only for the judicial system, but for the American people. Think of J.A.I.L. as an injection for the purpose of getting rid of a virus or disease. It stings at first. But once the disease of corruption, with which the system is currently infected, clears up, we're all going to feel much better! Another analogy is bulldozing down a torn-up area (such as the victims of Katrina), in order to rebuild it. The wrecking ball is painful, but is necessary to bring about future improvement.

Justice O'Connor's next attack is: "the breadth and intensity of rage currently being leveled at the judiciary may be unmatched in American history" and "Though these attacks generally emit more heat than light, using judges as punching bags presents a grave threat to the independent judiciary." The breadth and intensity of rage against the judiciary directly corresponds to the breadth and intensity of judicial corruption against the People. Both are "unmatched in American history." Judicial tyranny cannot go on unchecked without the People eventually reacting with rage against the tyrants. It's amazing that it has gone on for more than 200 years! Only the People can stop it!

Justice O'Connor, were that these attacks by the People against the judiciary merely emitting "more heat than light." But it's apparent that even you can see the "light at the end of the tunnel" --and yes, it is a train. That train is the "J.A.I.L. Express" about to meet up with the "long train of abuses and usurpations" that has been railroading the People long enough. It's time to change trains!

"Using judges as punching bags" is a rather naive metaphor, smacking of judicial self-pity; and while "a grave threat to the independent judiciary" may apply in some instances, it certainly does not apply to J.A.I.L. J.A.I.L. and the independence of the judiciary are mutually exclusive!

Justice O'Connor said the following in describing judicial independence: "In Federalist No. 78, Alexander Hamilton explained why, in our constitutional system, 'the complete independence of the courts of justice is peculiarly essential.' Hamilton contended that the judiciary needed to be distinct from the legislative and executive branches because that was the best way to guarantee 'a steady, upright, and impartial administration of the laws.' Hamilton also believed that judicial independence was necessary in order to safeguard against 'injury of the private rights of particular classes of citizens, by unjust and partial laws.' "

J.A.I.L. does not interfere with any of that explained by Hamilton above. The reason J.A.I.L. and judicial independence are mutually exclusive is because J.A.I.L. does not get involved until after the conclusion of all judicial operations. Amendment E states "Except as provided in paragraphs 17 [Criminal Procedures] and 22 [Judicial Challenges to the Amendment], no complaint of misconduct shall be considered by the Special Grand Jury unless the complainant shall have first attempted to exhaust all judicial remedies available in this State within the immediately preceding six-month period. ..." That means that the judiciary can be as independent as it should be, before J.A.I.L. comes into the picture, if it does. There is no interference with the judicial function.

Justice O'Connor quotes Adam Smith regarding judicial independence: "Adam Smith, writing in 'The Wealth of Nations,' well understood the importance of an independent judiciary: '[U]pon the impartial administration of justice depends the liberty of every individual, the sense which he has of his own security.' Without judicial independence, Smith warned, 'it is scarce[ly] possible that justice should not frequently be sacrificed to what is vulgarly called politics.' "  There is no conflict between those principles and the J.A.I.L. process. As a matter of fact, the J.A.I.L. process will encourage judicial independence by holding accountable those judges who refuse to perform the impartial administration of justice by willfully violating procedural law.

 

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