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By Robert A. Vella

One of the hallmarks of democracy and republicanism (i.e. the rule of law) is the idea of an independent and impartial judicial system.  In theory, legal institutions built upon this concept provide a check against the politicization of law and abuses of power.  In the U.S., this means that Congress cannot enact legislation specifically favoring or disfavoring any particular group or individual, and that the Executive Branch cannot apply its authority arbitrarily.

In practice, however, the concept of judicial independence and impartiality has struggled to perform these institutional checks;  and, the rise of the imperial presidency in recent decades has been making an outright mockery of it especially since the election of Donald Trump.

The late David D. Caron addressed both the importance and the difficulties associated with judicial independence and impartiality as an international concern.  From:  The Independence and Impartiality of Legal Systems

As lawyers, we often focus on the independence and impartiality of a judge or of an arbitrator. At least as important, however, is whether the system itself is independent or impartial. This is particularly true given that the task of building robust rule of law around the world is an initiative near the top of many foreign policy lists and that a central component of robust rule of law is the existence of a system of independent and impartial courts and tribunals. But what does it mean to require independence and impartiality at the level of the system rather than in a particular court or judge within the system? In this editorial comment, I trace in broad terms the internationally shared concept of impartial and independent courts and the fundamental place this concept has in both efforts to ensure justice and good governance.

Although the U.S. Constitution does contain language regarding judicial independence, it says virtually nothing about impartiality.  In fact, the only language requiring U.S. Supreme Court justices to be impartial is their oath of office established in 1789 and revised in 1990.  From:  Text of the Oaths of Office for Supreme Court Justices

“I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God.”

Furthermore, the only constitutional option allowing for the removal of supreme court justices is impeachment which involves “high crimes and misdemeanors” and not judicial bias (see:  Can a Supreme Court justice be forcibly removed from the bench? A quick civics lesson.).  Therefore, the idea of judicial impartiality as a practical matter is so amorphous as to be nonexistent.  And, this is quite understandable.  Human beings are inherently subjective creatures, and their ability to be objectively unbiased varies greatly from individual to individual and from situation to situation.  Essentially, the expectation of impartiality sets a standard of performance beyond the limits of current human evolution.  In other words, men cannot be godlike and should never be so deified.

Consequently, the American judicial system avoids broad moral judgments like the plague and instead focuses entirely on the technical interpretation of existing law.  For the U.S. Supreme Court, this typically involves interpreting the U.S. Constitution.  But, this legal restriction offers little solace.  The interpretation of law is just as susceptible to human subjectivity and bias as are perceptions of morality and determinations of right and wrong.

Again, the judicial system attempts to mitigate this problem of subjective bias through the application of various legal principles and procedures.  One such principle is the guidance of legal precedent.  From:  THE AMERICAN JUDICIAL SYSTEM

Stare decisis is the desire of most courts to follow their own precedent, even when they are not required to.  For example, once the Supreme Court has decided an issue of federal law, they are free to change their mind in some later case.  But they are normally quite reluctant to do so, even if there has been a change of justices on the Court and the new members do not agree with the old ruling.  They are much more likely to distinguish the older case when asked to apply it in a slightly different situation.  In this way, the older doctrine may change, but more gradually, over time.

Legal scholar Jonathan Turley referred to this principle in his recent critique of retiring supreme court justice Anthony Kennedy who has been a key swing vote on many contentious issues.  From:  “Correcting The Error”: Did Kennedy Cut His Own Tow Line In His Final Decisions?

Kennedy’s jurisprudence reflected a unique mix of libertarian and natural-rights elements. To him, the Constitution may not have been the “living” document embraced by his liberal colleagues, but it evolved in its application to new forms of expression and association. That evolution often meant discarding prior doctrines and the time-honored judicial norm of stare decisis — the notion that courts should “stand by things decided.” Absent significant changes in the underlying law or conditions, courts avoid overturning precedent in the interests of institutional consistency and integrity. Kennedy’s cases should rest comfortably within that cocoon of tradition. Indeed, at one time, Kennedy insisted that “the whole object of the judiciary is to ensure stability, continuity, and so we pride ourselves on the fact that there is little change.”

But contained in his long tenure, and in many of his most historic cases, is an occasional disdain for precedent; his most important rulings were built on the ashes of prior decisions. In Lawrence v. Texas, for example, Kennedy tossed out the nearly two-decade-old ruling in Bowers v. Hardwick, citing changes in legal and social views. “Bowers was not correct when it was decided, and it is not correct today,” he wrote. “It ought not to remain binding precedent.” In June, he advanced his attack on stare decisis even further, authoring a 5-to-4 decision that cavalierly dispensed with a major 1992 tax precedent. Then he signed onto a majority opinion this past week overturning an important 1977 case about union dues. Kennedy began his career standing by things decided but ended it creating new doctrines.

Unwittingly, Kennedy may have crafted the perfect weapon for activist judges. His historic rulings may stand the test of time. But if any of his major opinions are voided by future courts, the weapon may not bear the fingerprints of his more conservative replacement but rather, in a strange way, his own.

While the principle of legal precedent attempts to lessen the degree of judicial inconsistency caused by the subjective biases of human judges, the practice of technically interpreting the law without concern for the consequences of judicial rulings may be an even worse problem.  From:  Michigan judge rules kids don’t have a fundamental right to literacy

A Michigan judge ruled last week that children do not have a fundamental right to learn how to read and write.

The ruling came in response to a lawsuit filed by Public Counsel, the nation’s largest public interest law firm, on behalf of Detroit students that sought to hold state authorities, including Gov. Rick Snyder (R), accountable for what plaintiffs alleged were systemic failures depriving children of their right to literacy, according to the Detroit Free Press.

“I’m shocked,” said Ivy Bailey, president of the Detroit Federation of Teachers, the newspaper reported. “The message that it sends is that education is not important. And it sends the message that we don’t care if you’re literate or not.”

[…]

U.S. District Judge Stephen Murphy III acknowledged the importance of literacy in his ruling on Friday in a 40-page opinion.

“Plainly, literacy – and the opportunity to obtain it – is of incalculable importance,” Murphy wrote. “As plaintiffs point out, voting, participating meaningfully in civic life, and accessing justice require some measure of literacy.”

But he concluded that those points “do not necessarily make access to literacy a fundamental right,” adding that the U.S. Supreme Court ruled in the past that the importance of service “does not determine whether it must be regarded as fundamental.”

Legal scholars would assert that judges must confine their decisions to existing law as it is written and interpreted by higher courts, and that it is the responsibility of the legislative and executive branches of government to make and administer the laws of the nation.  Although this argument seems reasonable and perhaps even desirable, it can be used as a convenient crutch.  Consider the preamble to the U.S. Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Obviously, none of these lofty goals are served by the illiteracy of the people.  With his ruling, judge Stephen Murphy III appears to be so deep into the secluded realm of American jurisprudence that he cannot see the forest for the trees.

If America wasn’t so culturally and politically divided as it is today, then this narrow view of justice might be beneficial to society because it acts as an impediment to change.  Unfortunately, America today is so polarized and dysfunctional.  In times of crisis, it is the duty of the nation’s institutions to provide principled leadership.  If it isn’t coming from the White House, Congress, or from the U.S. judicial system, then where will it come from?  And, what will happen if it doesn’t?

10 thoughts on “Iustitia Interruptus: The failure of America’s judicial system

  1. As I began reading your post, a thought occurred to me … which you shared shortly thereafter …

    Human beings are inherently subjective creatures, and their ability to be objectively unbiased varies greatly from individual to individual and from situation to situation.

    While we hope for impartiality related to decision-making and actions within our judicial system, the truth is clearly outlined in the above statement.

    Liked by 3 people

  2. Well Robert, as Pink was correctly admonishing me to come read this, this is a great post Sir!

    Therefore, the idea of judicial impartiality as a practical matter is so amorphous as to be nonexistent. And, this is quite understandable. Human beings are inherently subjective creatures, and their ability to be objectively unbiased varies greatly from individual to individual and from situation to situation. Essentially, the expectation of impartiality sets a standard of performance beyond the limits of current human evolution. In other words, men cannot be godlike and should never be so deified.

    Indeed Robert! Excellent summation. Hence, the need for the best possible objective “hedging” equations against individual subjectivisms: balanced diversity; the more the better. A lop-sided panel of peers or a supreme court CANNOT POSSIBLY serve objectively the people and their principles. Perhaps it is time to make our (antiquated?) Supreme Court justices 11 or 13 instead of 9.

    Seriously Robert, what other possible solutions are there to hedge against individual bias and subjectivity… on or in whatever domain!?

    Again, fabulous post!

    Liked by 2 people

    • Thank you very much, Professor. As I wrote this essay, I considered possible solutions and asking readers to offer their own. But, I decided against it because the problem is so deeply ingrained in our human nature (which Pink addressed in his SDT post). Instead, I decided to simply reveal the inherent problem of judicial impartiality as a basis for justice. If we first identify the problem, then perhaps people more capable than I can offer solutions.

      While I agree in theory that larger consensuses might produce better results, the actual political mechanisms which appoint Supreme Court justices would remain flawed. Imagine the consequences of expanding SCOTUS under President Trump.

      Liked by 2 people

      • Oh, you are absolutely correct about any silver-bullet for this rising problem. I don’t have all the answers either. I just know that the 18th century CONCEPT of “checks and balances” worked for a long, long time (with politicians of sound principles rather than with modern deep pockets) until like everything it doesn’t. THEN you adapt and evolve according to the NEW set of parameters, corruptions, and issues, i.e. the purpose of Amendments. 😉

        Oh yeah! The LAST thing America wants to do is expand Justices during the Orangutan Era!!! What a nightmare that would be, huh? 😬 F*CK… just give everybody in the U.S. assault-rifles, including all felons on parole or inside prisons! HAH! That “rule of law” would be just as effective as this administration’s bills and appointments. Geezzz. 😦

        Liked by 2 people

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