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Judicial independence: The new threat from within

Judge Steven LebenJudge Steve Leben

In election years, judges frequently come under attack for a specific decision. And since judges generally can’t comment publicly about pending cases beyond what was said in the decision itself, judges can be an easy target.

But something strange is happening as the 2012 presidential campaign comes into focus: In two high-profile court hearings, judges have struck what seems to be a partisan tone, unnecessarily inserting themselves into the campaign. Their actions from inside the judiciary threaten judicial independence just as much as attacks from the outside.

The first was U.S. Supreme Court Justice Antonin Scalia. During oral argument about whether the Affordable Care Act is unconstitutionally coercive on the states, he asked whether there was “any chance that all 26 states opposing it have Republican governors, and all of the states supporting it have Democratic governors?” When told there was “a correlation,” Justice Scalia triumphantly said, “Yes!” followed by laughter from the audience. Scalia got his laugh line — transcripts show he gets more laughs than any other justice. But here he did so by inserting a comment about purely partisan matters that had no legal relationship to the argument being made.

Use of ‘kickback’ phrase

Judge Kevin S. BurkeJudge Kevin S. Burke

Justice Scalia later made reference to “the Cornhusker kickback” in asking a question about whether the entire healthcare law must be struck down if one part is found invalid. Using the term “kickback” in reference to a provision that purportedly gave federal benefits to a state (Nebraska) in exchange for its senator’s vote sounded more like a political attack ad than the sort of question a neutral judge would ask. This too was an unnecessary comment: The provision he referenced hadn’t ultimately taken effect and thus wasn’t part of the statute before the court.

The second was Judge Jerry Smith, a federal appeals court judge who was hearing another case involving the health-care law. He interrupted the Justice Department attorney who was arguing the case to ask a question about what President Barack Obama had said at a news conference — not something contained in the briefs or said by any attorney appearing in court to argue the case. Judge Smith made reference in his question to “Obamacare,” a name generally used by Republican opponents of the law, rather than the Affordable Care Act.

Judge Smith then ordered the Justice Department to send the court a letter stating its position “in regard to the recent statements by the president” and that the “letter needs to be at least three pages single spaced, no less” and filed by noon two days later. This is not a typical court hearing at all, and certainly not one that promotes public confidence in the courts.

Our nation cannot afford to have the impression that judges made decisions based upon their personal or political views. What is at stake is the legitimacy of judicial decisionmaking.

Public expects procedural fairness

Decades of social-science research has shown what the public expects from its judges, and it comes down to several elements of procedural fairness. The public expects judges to allow the parties’ voice to be heard by listening carefully to the arguments they make and demonstrating that you have understood them, however you may rule.

The public expects judges to decide cases in a neutral way, transparently relying upon established rules and precedents as much as possible. And the public expects judges to show respect for all parties and their rights, which are explicitly protected. Following these principles leads to greater trust in the court and leads to greater acceptance of and compliance with court orders.

We don’t suggest that these judges are not trying to be fair in actually deciding the cases—comments made from the bench don’t always indicate how a decision will come out. But the comments made from the bench can undermine public perceptions of fairness.

System requires public trust

We have about 30,000 judges in this country, and a great many of them have been working to improve procedural fairness in the courts. But a few judges appearing partisan in high-profile cases can undercut the work of many others. Trust in public institutions is at an all-time low, and judges must be careful to maintain public support for the justice system. Without it, judges cannot maintain the independence necessary for the protection of the constitutional rights we all treasure.

We can hope that the self-inflicted damage to public perceptions of judicial fairness from these recent comments from the bench will be temporary. But every judge must respect the trust the people have placed with us. And as Yale law professor Akhil Reed Amar recently said, the country desperately needs a Supreme Court opinion in the health-care cases that genuinely crosses party lines.

A consensus decision attracting at least six votes in the health-care cases would send the message that courts can still act based upon neutral principles, not political views. Making sure that the process seems fair along the way would help too.

Steve Leben is a judge on the Kansas Court of Appeals and a past president of the American Judges Association. Kevin Burke is a trial judge on the Hennepin County District Court and the current president of the American Judges Association. This article is reprinted from 95 Judicature 205-06 (March/April 2012), the journal of the American Judicature Society.


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Comments (18)

  1. Submitted by Greg Kapphahn on 05/09/2012 - 10:55 am.

    Thanks for These Thoughtful Comments

    But I fear that bus has already left the station with the “Citizens United” (and several other) decisions, wherein the majority of the members of the SCOTUS made decisions not based on the constitution itself, nor precedent, but clearly (and only) designed to benefit those citizens whom they personally favor and regard to be important at the expense of those citizens whom they regard to be of far lesser importance.

    Indeed, “equal protection under the law” is impossible to achieve or even comprehend when those most in need of such protection are completely invisible to the majority of the members of the court.

    Based on the unacknowledged and clearly very limited “the rich and powerful are the only folks who deserve consideration and protection in court” a regal attitude held by the court’s majority (and despotic monarchs worldwide throughout human history),…

    I believe England’s former King George III would be proud of them.

    (and if it gets much worse, our nation’s founders would be planning to revolt all over again).

  2. Submitted by craig furguson on 05/09/2012 - 11:38 am.

    I’ve been a bit disappointed lately by judges who try to drive policy on their own when in reality there are hundreds of judicial staff and other state and local policymakers. For example, Hennepin has 64 judges, but somehow Judge Zimmerman needed to make a statement about the safety of suburban courts by refusing to work in them. Judge Quam used the death of a jail supervisor to make a statement about persons awaiting civil commitment in the local jail. They are entitled to their opinions, but I am not sure that the are sanctioned by or represent the bench in Minnesota. It’s a little spooky how much influence an activist judge can have and you wonder if they should even be sitting on the bench.

    • Submitted by Rachel Kahler on 05/09/2012 - 01:39 pm.

      These are not political statements

      So you’re saying that the individual safety of a judge should not be something the judge has any say over….or that a judge whose job it is to determine what to do with dangerous citizens should ignore the fact that his decisions may contribute to a serious problem? Aside from the fact that neither of those examples relate to political statements by judges, your position is still wrong because both examples were totally relevant to either the judge as an individual or to the judge’s job as an arbiter of the law.

      • Submitted by craig furguson on 05/09/2012 - 02:46 pm.


        I call it political when someone uses their position to influence the allocation of scarce public tax dollars to their favor using the media outside of the normal political process. The other 62 judges in the county were not doing that.

  3. Submitted by Robert Langford on 05/09/2012 - 12:05 pm.

    Judicial conduct

    This is a very important commentary. There was a time that the Federal Judiciary was faithfully independent, but that all changed with the present majority (5) on the USSC, and their arrogant, shortsighted and illogical approach to all things before them. There is little doubt that they will find the Affordable Health Care Act unconstitutional and the Arizona anti-Hispanic law constitutional, all because of their politics and with no regard to precedent. Though they all said, under oath, that they would respect stare decisis, their casual disregard of past decision certainly proves them to be without integrity.Their mark may be to have returned our country to a gun toting, money governed, facist state. No one really thinks that the Federal Courts are now politically neutral or objective. It is probably too late to stem the tide of lack of independence, and indeed Scalia will have the last laugh.

  4. Submitted by Rachel Kahler on 05/09/2012 - 01:44 pm.

    Politically driven

    I think that some citizens are perfectly happy to see politically driven commentary and decisions by judges…until it applies to them. Since, most of the time, these people are not aware enough to realize that a lot of this stuff impacts them indirectly, if not directly, there will always be enough people who are rabid enough to believe that their fellow citizens should suffer because their views conflict with their own.

    What’s particularly stark about the examples provided in this article is that, in both cases, the statements and requirements were blatantly political and had no clear relationship to the legal matter at hand.

    While I don’t favor ANY politics on the bench, it’s hard not to note that in both of these extreme cases, the clear slant is in one direction and that one direction has a history of using any means necessary to further their goals.

  5. Submitted by myles spicer on 05/09/2012 - 02:30 pm.

    No wonder government is disrespected

    With a Supreme Court that has clearly been politicized…a Congress that has a postive rating of about 9%…a House that is rigidly partisan and far right…a Senate that is paralyzed with their “new” 60 majority rule…and the domonizing of our president daily, is it any wonder that we are cynical about the state of our government, and our governance? We have every right to be disgruntled as truly concerned citizens, and sadly there are no improvements in sight.

  6. Submitted by Joe Musich on 05/09/2012 - 04:21 pm.


    Judicial neutrality is the goal. But what are the guidelines that need to be looked at when evaluating the actions of a judge or determining whether someone should be a judge and reflect our common notion about neutrality ? This seems to be a more difficult question but one that needs to be answered. The cases presented in this reading I would agree do not by any definition reflect neutrality.

  7. Submitted by Ray Schoch on 05/09/2012 - 06:04 pm.

    Make careful note…

    …of which groups and individuals are now suggesting that labeling judges by political party, and making the position of judge an elective office at the state and local level, is a good idea. Lots of people grouse about “activist” judges, but that usually means no more than a judicial ruling or opinion with which the complainer disagrees. If we turn the judicial segment of the legal system into a partisan arena like the legislature, any notion of “fairness” or “equity” in judicial decisions will disappear, and along with it, public confidence in the judicial system.

    We have ample evidence that legislative and gubernatorial partisanship around the country does not make for effective or responsive government at any level. Extending that paralysis to the judicial system will be disastrous.

  8. Submitted by Stuart Macdonald on 05/09/2012 - 08:10 pm.

    Ahhhh!! I remember the good old days.

    This is a wonderful nostalgia piece! Thank you for sharing your memories of when the rule of law was included in USA daily life. I, too, remember the ’70s,

    With the election of Ronald Reagan and the deification of Milton Friedman and Chicago School Economics, there is no longer a need for such drivel. Enough eligible voters have made it clear they no longer support the rule of law, or The Constitution, for that matter. The “activist judges” of the 60’s and 70’s have been replaced by judges that make up whatever “precedents” are required to do whatever they want. Praise be to Milton! Hallelujah!!

    Minnesota has delayed switching over to this modernization of the US. Yet enough voters in Minnesota have made it clear they want the MN judiciary to switch to the way things are done in Iowa and Wisconsin. Voting for reformers and government reducers over and over again has made it possible to begin updating our judiciary to our neighbor states’ standards. If a fellow judge interferes with your opinion, you as a judge should have the right to strangle them, then disqualify any of your peers from sanctioning you and get away with it. Or if you make a decision that enough voters don’t like, we should be able to kick you out of office, out of the state and maybe into jail!! If Minnesotans didn’t support this type of behavior, we would not have had the governors and legislatures that we’ve had since 1990.

    The voters continue to support legislators that first take an oath to protect and defend The Constitution from all enemies, foreign and domestic, then brag about how they ignore the law and do everything they can to undermine or destroy The Constitution, as long as they or their ‘friends’ can make a profit. In the past 5 years, they’ve stopped pretending they even care about The Constitution, let alone protect and defend it. The idea that a few ethical and responsible judges can stop this trend is a great fantasy. Enough voters just don’t care.

  9. Submitted by Dennis Tester on 05/10/2012 - 07:40 am.

    Public expects procedural fairness?

    Ha! That’s a laugh. If that were the case the press would be questioning publicly why Justuce Kagan is allowed to even hear this case, much less act as the administration’s champion with her supportive questions, given her role in crafting the legislation in the first place.

    • Submitted by James Murck on 05/10/2012 - 08:50 am.


      So then you agree with the premice of the article. Left or Right the trend is the same – loss of respect for the judiciary and the rule of law…

  10. Submitted by Jon Kingstad on 05/10/2012 - 09:12 am.

    Judicial misconduct

    The Judicial Conference of the United States has established procedures for reviewing complaints against federal judges who are believed to have misbehaved. Misbehavior can include making partisan remarks like those discussed in the article and even a federal judge can be suspended or disciplined. Most state judiciaries I believe have adopted similar procedures and rules.

    The problem again though is whether these will be enforced. When you have Justices like Scalia making partisan remarks during oral arguments or Thomas not recusing himself when his wife is a lobbyist for the industry attacking the law and they can get away with it, you’re not giving the public much confidence that you believe in these rules or procedures (And sorry, Justice Kagan’s having participated at some point in drafting a part of proposed legislation is not grounds for the “appearance of bias.” How can one one individual be held responsible for “crafting” a 1,500 page piece of legislation that is adopted by a separate branch of government after a tough and complex series of compromises? To its credit, you have the Wisconsin Supreme Court considering the discipline of Justice Prosser for his alleged choking of another Justice. This will be handled by their colleagues- remaining five justices who are not disqualified as being witnesses. This provides a model of how the judiciary must behave if the public is to retain its respect for the judiciary and the rule of law itself.

  11. Submitted by Logan Foreman on 05/10/2012 - 09:14 am.

    Of course

    Mr. Tester forgets the role of Justice Thomas’ wife in trying to destroy this law. Dependable.

    • Submitted by Dennis Tester on 05/10/2012 - 02:43 pm.


      Judge Thomas’ wife is only tangentially involved. Kagan helped write the damn law that SHE, not her husband, is going to rule on.

      • Submitted by Logan Foreman on 05/11/2012 - 08:10 am.

        Complete nonsense

        If you think his wife is tangentially involved, you are sadly misinformed. This totally partisan member of the judiciary fully knows the extent of her involvement and her income from it.

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