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Without a Purse or a Sword: Defending the Independent Judiciary

May 1, 2019

By Danielle Russ, Associate Editor

“The judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment.” In Federalist No. 78, Alexander Hamilton pondered that the judiciary would be the least dangerous branch of government, comparing it to the executive and legislative branches who would control the military and the money. The United States Constitution solidified judicial independence through the use of separation of powers, providing each branch with independent powers and responsibilities. 

Today, however, the citizens of the United States and those in both the executive and legislative branches seem to have forgotten the Founders’ intent and the Constitution’s purpose. Both major political parties are guilty of diminishing the independence of the judiciary by arguing that judges are bound to or are biased by their personal political views.

Political attacks on the judiciary have been occurring for decades and often are accompanied by threats to remove judges from office for unpopular opinions. In 1965, former federal judge Frank M. Johnson, Jr. was harassed by Governor George C. Wallace for Judge Johnson’s decision creating rights for mental health patients and reformed mental hospitals in Alabama. In 1996, Judge Harold Baer, Jr., a former New York federal judge, received criticism from then President Bill Clinton and the Republican presidential candidate Senator Bob Dole for Judge Baer’s decision, which found that $4 million worth of cocaine and heroin was inadmissible because police violated the Fourth Amendment to uncover the evidence. In 2018, four out of the seven justices of the Pennsylvania Supreme Court faced impeachment threats due to their decision regarding congressional redistricting. Unfortunately, these examples are only a small sampling of the vast array of attacks the judiciary has faced since the country’s inception.

Judges are often defenseless against such attacks. In certain instances, they are bound by rules of ethics not to respond. Lawyers and law students must stand up for the independence of the judiciary and must speak on behalf of the judges falling under attack. This defense does not need to be for the decision made by the judge, but simply for the principle that Alexander Hamilton envisioned and that which the Constitution of the United States created: an independent judiciary that is not bound by the wishes of the executive or legislative branches of the government or by political aspirations.

It is important to note that there is certainly a difference between fair criticism of judges and intimidation of judges, the former being acceptable. However, the law is not black and white and judges are often forced to consider difficult legal and constitutional questions. Regardless of a decision’s popularity, the independence of the judiciary should never be up for negotiation, and it is up to us as lawyers and law students to increase confidence in the judiciary and remind those who have forgotten that the judicial branch is to remain independent.