A Conversation on the Constitution: Judicial Independence
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A Conversation on the Constitution: Judicial Independence

September 13, 2019

Narrator: This video is a
project of the Annenberg
Foundation Trust at Sunnylands. In the summer of 1787, delegates
to the Constitutional Convention
gathered in Philadelphia to
create a document that would establish the government of the
United States. On September 17,
that landmark document, our
Constitution, was signed. In commemoration of that day,
students from several California
and Pennsylvania high schools
were recently invited to the Supreme Court building in
Washington, DC, to meet with
Justices Anthony Kennedy,
Sandra Day O’Connor, and Stephen Breyer. The views of the
students and the responses of
the justices provided a unique
glimpse into the workings of America’s highest court, and
the document that shaped our
history and guides our future. Justice O’Connor: Justices
Kennedy and Breyer and I would
like to thank all of you so
much for making the trip to be here today, and to talk about
some matters pertaining to
our Constitutional system
that are really important. And we’re very glad that you’ve
been thinking about it, and
studying it, and that you want
to have a discussion with us. And so we look forward
to today, and hearty
welcome to all of you. Student: My question is,
do Supreme Court justices
play a different judicial role than, say, lower
federal court judges or
state court judges? Justice O’Connor:
Basically, as you already
know, the Supreme Court is
at the top of the ladder when it comes to filing
appeals, and so a decision
of this court cannot be
appealed to a higher court. Justice Kennedy: In a large
sense, they’re the same.
Their oath is the same,
their method is the same, the authorities that they
refer to, the sources of law
they refer to are the same. And their ultimate function
is the same, and that is to
convince the litigants that
they’ve had a fair hearing, to resolve the case according to
the law so that, in the long
term, people will give it
allegiance and loyalty. Justice Kennedy: As a practical
matter, this court, I think, is
different in that we don’t take
cases until other courts are in disagreement about it. And we
have to be especially careful to
follow our formalities and our
traditions, because we know going in that the public and
the courts are divided on
the cases. Maybe I haven’t
quite captured that well. Justice Breyer: No, that’s
true. I think part of what we
do is the same as what other
courts do, is we’ll interpret statutes, or we’ll decide
legal cases, and they do that
in state courts, and they do
it in lower federal courts, and we have the last word, but
that doesn’t always mean the
best word. It means someone
has to have the last word. But there is one thing that
I think is different. And
the different thing is this:
That we have a special job, different from the lower courts,
and different from the state
courts, in that we have lots and
lots of cases interpreting the Constitution of the United
States. Now, they have them in
lower courts, too. And they
have them in state courts. But they don’t have that steady
diet that we have. Now, why does
that matter? I think it matters
because after a while, each of us, anyone in our job, has
to form a view of what this
document, the Constitution of
the United States, is really about. And I suspect if you
asked the three of us, and you
asked the other members of the
Court, even though we disagree on a lot of things, they won’t
disagree about the basic nature
of that document. And when I try
to describe it, particularly to people like you who know
something about it, you
obviously do know something
about it. You say, well, what’s at the heart of it? At the
heart of it, we think, are
institutions through which
the ordinary citizen of the United States can express his
will. What does he or she want
in his community? It’s called
a law, a statute, a rule for living together. And we have a
system in that Constitution
where people do that
democratically. Justice Breyer: There are
boundaries. And at those
boundaries, some of them
have to do with protecting individual rights. You can’t go
too far, even democratically,
because we’re trying to protect
those basic rights from tyranny. We insist on a degree
of equality. We insist, in this
Constitution, upon a rule of
law. People have to follow it. And the Constitution insists on
a division of power between
state governments and federal
governments, and among three branches of the federal
government. Now, those things in
a sense are qualifications. They
describe those boundaries of a democratic process. But I think
when you go into it, you’ll say
basically, that’s what this
Constitution basically does. And what do we do? I think of us
as the boundary patrol. We’re
patrolling the boundary. When we
patrol the boundary, we say whether someone else, like
Congress or the President or
others in the state, so forth,
went too far. But it’s one thing to patrol the boundary. And it’s
another thing to fill up the
middle. And filling up the
middle is the job of a democratic process. That’s the
job of you, that’s the job of
your parents, that’s the job of
your citizen, every citizen, your friends, and so
forth. And that’s what the
Constitution sets up. Student: My question is, what
is judicial independence, and
why is it important? Justice O’Connor: What is
judicial independence? And
that’s not a very good
term for today’s world. I don’t think most people have
an immediate concept of what
that means. Does it mean a judge
is absolutely free to decide any issue based on the
judge’s own whim or desire?
It does not mean that. And when the framers of the
Constitution envisioned three
branches of government, and
created a judicial branch, they went to great effort to make
sure that each branch was
independent of the other two in
various ways. And when it came to the judicial branch, I think
what the framers intended was
that the judicial branch could
operate and carry out its duties to interpret the Constitution
and laws of the United States in
ways that are fair and
impartial, and that follow the Constitution and laws, but
without threat of retaliation
against the judges if the other
two branches of government somehow disagreed, or were
unhappy. That’s what I think
it’s all about. Justice Breyer: I think most
people would. Suppose, unlikely
in your case, but suppose you
were very, very, unpopular. You’re probably quite
popular. But suppose you were
the least popular person in
the United States. Still, if you were accused
of a trial … Accused of
a crime, and had a trial,
maybe you’re innocent. And you wouldn’t want a judge
who is deciding your case with
an eye towards how popular he
will be. Because how popular you are might influence him. I think
people can understand that, and
they can sympathize with the need to give even the very
unpopular person a fair trial. Why should we, the judges, make
a decision about the meaning of
an important law? Say, freedom
of speech, or equal protection of the laws? Who’s to say that
the three of us are any more
honest, or can do it any better
than a politician? Now, that doesn’t have an obvious answer.
But it does have an answer. I
think the answer is that if you
go back and look at what the Constitution is trying to do,
part of what it’s trying to do
is to prevent a majority from
tyrannizing a minority. Now, we have some pretty bad examples of
that in our history. What about
slavery? What about 80 years of
legal segregation? What about running in and stopping
people who are unpopular from
speaking out against a war?
There are many bad examples. And the notion of creating an
independent judge, who is
independent because he isn’t, or
she isn’t, responsive to the voters, is one way of hoping
that we’ll be able to protect
the rights of minorities that are guaranteed under
the Constitution. It’s
only an experiment. Justice Kennedy: Here’s a
way for you to think about
it. I call it the three Rs. What’s the reason for judicial
independence? First R. Second,
what are the requirements, or
the requisites for it? How do you structure it? Three,
what are the responsibilities
that it entails? The
responsibilities of the judges, the responsibilities of the
other branches, the
responsibilities of the people.
And I think we can begin with what is the reason for it? Why
do you have it, anyway? If you
believe that there are some
neutral principles, if you believe that there are some
fundamental principles, if you
believe that those principles
can be understood, and that the American people, if we’re
talking about America
now, has a consensus
about those principles, that’s the beginning of the
reason for judicial
independence. So you can protect
those basic principles. Justice O’Connor: Look at the
case of Brown v. Board of
Education, where it was decided
that the earlier court precedents were wrong, and that
the Equal Protection clause is
violated when a state segregates
its public schools on the basis of race. Now, this was a very
big decision, because there were
many areas of this country where
racial segregation was used in public schools. And it was a
very unpopular decision in some
areas, and it became more so
when the orders were entered by federal courts to implement it.
Troops had to be sent to Little
Rock, Arkansas, to enable some
black children to get in the front door, if you can imagine.
Very unpopular. And yet, if it’s
possible to impeach the judge
for rendering an unpopular decision, or somehow retaliate
against the judges for doing
that, where would we be? And
that’s why the framers of the Constitution went to some effort
to create a judicial branch
that’s independent from the other two, to enable them to
make important decisions. Justice Kennedy: I think the
law is a check. Because the
judges are committed by their
oath not to do what they want. They are committed to do what
they must. And if you don’t
think the law has an objective,
knowable, stable substance to it, I don’t think you believe
in judicial independence. And
we’re checked in other means.
We’re checked by the fact that we have to give reasons for
what we do. We have to justify
them to our colleagues and to
other courts. We have to convince the legal
community, the American
community that this is right, so
that they will follow the law. Justice O’Connor: I agree with
Justice Kennedy that every
judge, at every level in the
country, takes an oath on becoming a judge to follow
the law and the Constitution
of the United States. And
judges, by and large, take that extremely seriously. Now,
any judge at a lower court
level, a state court, or a
federal court of appeals or district court, will do the
judge’s best to resolve these
issues, and the losing party may
then appeal from that decision. And that’s another check on
decisions in the lower
courts. They can bring it
all the way to this court. Student: My question is, what
are the most important ways in
which judicial independence is
protected by the Constitution? Justice Breyer: The Constitution
only has two, really, directly.
It says, you’ll appoint a federal judge for life, that
was Jefferson’s complaint. Justice O’Connor: Actually, it
says for good behavior. Right? Justice Breyer: That may be a
problem. But the Jefferson
complained, he said, well, the
trouble with the Supreme Court is that they never retire
and they rarely die. So
there we are. But there
is, that’s one guarantee. The other says compensation
shall not be diminished.
Well, Congress has figured
a way around that one. They just let the inflation
diminish it, and then they
don’t keep you up. So it’s
the same thing. That hasn’t been too much of a
check. So independence? About
15 years ago, I was in Russia.
And they were talking about to the 500 judges, about … They
were from all over Russia. You
know, there’s a big mix of
race, religion in Russia, just like here. They came from
Kamchatka, they came from …
They were all over. And they
were talking about how now, in the new Russia, they were
going to be independent.
There was some skepticism in
the audience. The judges said, what about
telephone justice? Telephone
justice is, the party boss tells
you how to decide. Why won’t that happen? And they asked me
if that happened to me. I said,
no. And they looked skeptical.
So I said, oh, I see. You think I’d tell you no, even if it were
yes. They said, right. They
said, who appointed you? At that
time I was on the Court of Appeals, I said, President
Carter. They said, well how does
he … Maybe he’d call you and
tell you what to do. I said, nope. Well, prove it. Now I went
on and on, and pointed out how
unthinkable that would be. But
what it comes down to is habit, a state of mind, what is it you
think you’re doing as a judge?
Why do we follow those laws?
Well, that’s the job. That’s the nature of what it is to be a
judge in America. And it’s very
hard to get that into people’s
minds, and it takes a long time, but it’s a very, very powerful
force, on keeping people
independent, and making certain
that the judges follow the law. Justice Kennedy: You think
about separation of powers as
this beautiful little machine
that’s kind of a mechanical metaphor in your mind when
you think checks and
balances. It’s like a little
clock. The Congress enacts. The President vetoes. The
Congress overrides. The Court
reviews. This magnificent
machine. And there’s a reason for that, because the
framers were fascinated
with all kinds of pendulums
and clocks and machines. It’s a mechanical metaphor.
But I don’t care how
exquisite it is on paper. It
takes good faith to make the Constitution work. There must be
a willingness on the part of
each branch of the government to
recognize the prerogatives and the competence and the
responsibilities of the other.
The Constitution is not
automatic. It doesn’t go on automatic pilot. It runs because
you believe in it, because you
understand it, because you
support it, because you want it. That’s the only thing that makes
it work. There are constitutions
all over the world, some of them
more eloquent than ours. They’re not worth the paper
they’re written on, because the
people don’t believe in them.
They don’t care about them. Justice O’Connor: And
perhaps because some other
nations don’t have an
independent judiciary to enforce the Constitution,
which has been a great gift
to this nation, I think. Justice Kennedy: There’s a
difference in how we perform
our function. The courts, and
this is part of the check, speak in a language, they have
a timeline, they have a
discipline, an ethic, a
tradition, a body of doctrine, the law, rules, stare decisis
that you are bound by
precedent. We give reasons for
what we do, we don’t have a press conference to say what
a great decision we made, or
how bad our colleagues were,
how wonderful our dissent is. We don’t do that. We have a
language, an ethic, a grammar,
a chronology, a tradition
that’s different from the political branches. It’s not
better, and it’s not worse.
It’s different. And part of
judicial independence is that we speak this language that we
call the language of the law.
And we are not as flexible as
the political branches. And we can’t … We don’t
come down to the Supreme
Court and say, oh, what
am I going to do today? I think I’ll decide a case on
free speech. We don’t do that.
We wait till there’s a case. We wait till two people are
in disagreement, and, in
our case, until it’s been
argued in other courts. We can’t just say, we’re going
to do this today. The Congress
can, or the President can.
Again, there’s a different dynamic, and that’s very, very
important for you to understand.
And that’s what, in part,
justifies the three branches. Again, we’re not better,
we’re not worse. We’re
different. Justice O’Connor: Justice
Kennedy reminds me, there’s one
other thing that I think we
haven’t mentioned, and that is that judges are bound by
precedents of this court,
former decisions of this court,
and of lower Court of Appeals judgments that have not
been reversed or changed.
They become part and parcel
of the law. And over more than 200 years, believe me,
there are lots of precedents out
there, other judicial opinions
at the appellate level that we have to follow, unless
there is a reason not to do
so, or they’re overturned,
and that’s a huge body of law that also serves
as a governance, a check
on what judges do. Student: Does the selection
of judges by a politician
or a merit board make for a
more balanced and less biased judiciary than if,
they were, say, directly
elected by the people? Justice O’Connor: Well, your
question touches really on
state courts, because the
mechanism for selecting federal judges is set out in
the Constitution. Nomination by
the President and confirmation
by the U.S. Senate. But the states, the 50 states,
have different ways of
selecting judges. A majority
of them elect judges in partisan political elections.
And a minority of the states use
some kind of merit selection
procedure, where judges in the state are appointed, typically
by the governor, from a list of
potential candidates submitted
by some bipartisan commission. Now, I happen to believe that we
get a better set of judges under
merit selection than by purely
political election of judges. But the states that have
political election of judges
like the system a lot, and are
not inclined much to change it in today’s world. So we have
both things going on. What
disturbs me a little about the
partisan election of judges is that candidates for judge
typically will try to get some
money for their advertising and
their publicity in the campaign, and that money is most likely
going to be given by the very
lawyers who are most apt to
appear before them. Justice Kennedy:
Very interesting. Justice O’Connor: Now, maybe
that’s okay, but I think that
poses some risks and dangers that I, personally, would prefer
to avoid. But it’s up to each
state, what system to adopt. Justice Kennedy: Underlying
Justice O’Connor’s comment
is the premise that this
isn’t going to change. Judges have a tremendous
amount of authority and
power in our system. And
Americans want to keep some kind of a string on that
power in the states. Now, we
have some courageous judges
in the state system. That know that they make
unpopular decisions, and
because of this discipline
of the law we talked about, they do the right thing. But
I hope that we can take what
is a serious problem and
turn it into advantage. I hope that the citizens of the
country, that the legislatures,
that the bar associations, that the judges themselves, will
use campaigns to talk about what
it is to be a good judge. Student: Now, considering the
two cases, Georgia v. Cherokee
Nation and Aaron v. Cooper.
Now, in those two cases, in the former, President
Jackson defied the court, but
in the latter, Eisenhower
supported the court’s decision to integrate schools. What
accounts for this change,
and what, if anything, would this teach us about
the rule of law and an
independent judiciary? Justice Breyer: You’re
quite right. In the 1830s,
the court said that the
land in Georgia belongs to the Cherokee Indians, it
was their reservation, and as
you said, President Jackson
said, well, John Marshall, the Chief Justice, made his
decision, let him enforce
it. And he sent troops, and
they evicted the Indians. And they sent them to Oklahoma,
where their descendents live to
this day. Those who survived.
Many died. And you’re also correct that,
it was after Brown v. Board,
the court said you cannot
have segregated schools. And the Governor of
Arkansas said, I will. And
he stood there with the
state troopers, and all 9 judges signed the Supreme Court
opinion. Well, you could have
had 9,000. So what? He had the
troops. So it was President Eisenhower who sent the
paratroopers, who took the black
children by the hand and walked
into that white school. And the governor was stuck there,
because he didn’t have the Army.
But Eisenhower did it, and he
deserves credit for that. And what do you think about Bush
v. Gore? What do you think about
school prayer? What do you think
about abortion? Think those aren’t controversial? They sure
are. And yet there are no people
in the streets. And there were
no troops called out. Now, what accounts for that? That’s your
question. I do know we fought
a civil war on the question of
whether you had to follow the law. I do know we went
through 80 years of segregation,
a pretty bad experience. I do
know the country’s had its ups and downs. And gradually,
I think people have come
to understand that the
rule of law is necessary. I mean, look around. We have
300 million people. We have
every race, every religion,
every point of view, and they have agreed to
decide their disputes under
law. It’s like free speech. Free speech is not for the
people you agree with. Free
speech is for the people
you don’t agree with. But how tempting it is to
say, oh, it’s not for that.
That’s too wrong. Well,
that’s what it’s there for. And similarly, a rule of law is
there to bring us together when
we don’t agree. It’s there even
to enforce the wrong things. So you say, what’s the
answer? How did we get
there? And I have to tell
you I have no magic answer. You and I are the
beneficiaries of what other
people have done. You and I
are the beneficiaries of the brave children who walked into
that school in Arkansas, and
the President who sent the
paratroopers to help them. Justice Kennedy: And I like to
think the difference is, and
this is indicated I’m sure, in
Justice Breyer’s remarks, and his thinking about
Georgia, and comparing it
with Cooper v. Aaron, that
our democracy has matured. Over … The perspective of
time is a great teacher. And
over the perspective of time,
the American people have said, we are one people, we are
Americans, because, although we
come from different ethnicities,
different religions, different national origins, we have
something in common, and that’s
this thing we call the
Constitution. Justice O’Connor: We do know
that the rule of law offers the
greatest opportunity we have to
live in peace with each other, and with the rest of the world.
And that’s one reason why this
country has made so much effort
to help encourage other nations around the world to also
follow a so-called rule of law
concept. Where all of us, in
every nation, are approaching problems in a similar way. And
under legal principles that can
be enforced through the courts. Student: What do you think the
greatest threat to an
independent judicial branch is
in this country, at the moment? Justice Breyer: I think the
greatest threat is citizens
who are unaware of what
judges do, or why they should be independent – the
nature of the Constitution. If
people are aware of the job,
they’re likely to protect it. Justice O’Connor: I think polls
of public opinion recently
indicate that there is a
profound lack of information about our system of government
in our country. And about the
three branches, and the checks
and balances, and even about what it is judges do. And so,
I think absence of knowledge
in the public about what it is
our system is and what judges do is a pretty big threat at
bottom, because people need to
know and understand. But there
are more specific threats at present. There are all
kinds of allegations of
judicial activism, and a
judiciary run amok, I think, is one turn of phrase I’ve
heard. And the result has been
a number of proposals in
Congress to do various things, such as remove jurisdiction of
the federal courts from certain
types of cases. Efforts to
reduce funding for the courts in an effort to somehow
punish judges for decisions
that the members of Congress
sponsoring it don’t like. The establishment of, perhaps,
an Inspector General, to
review judicial behavior and
see if there’s something that needs to be brought to public
attention. There are many
proposals, and for impeachment
for certain acts. So this is an area of
concern today, and one which
makes me even more anxious
that the public know and understand what the system
is, and what it is judges
do, and what governs
judicial decision-making. I think our time is up, and I
want to thank you, on behalf
of all of us, for your
participation as students. And you made it possible to
have a really very good
conversation with you
today. So, thanks so much. [Music]

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