Feb 04, 2019
The Independent Judiciary
Feb 04, 2019
By Charles Dresow
The protection and preservation of our independent judiciary is vital to our society and system of justice. The public must retain faith that their grievances can be resolved by a fair and independent judge. Fair and independent judges serve to check and balance the executive and legislative branches. Indeed, our revolutionary war was fought partly because of the denial of an independent judiciary to the 13 colonies. This specific grievance was so important that it was contained in the Declaration of Independence itself:
[King George III] has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
The King of England’s erosion of the independent judiciary in the colonies was viewed as a direct threat to the individual liberty so important to our country’s founders:
Controversies over the independence of the colonial judiciary raged in Pennsylvania and New York beginning in the 1750s, then ‘exploded’ in the next decade after an order of December 1761 from the King in Council permanently forbade the issuance of colonial judicial commissions for any term except ‘the pleasure of the crown.’ In England, judges had enjoyed tenure on good behavior since 1701, and in 1761 George III himself described the independence of the judiciary as ‘one of the best securities of the rights and liberties of his subjects.’ Fears that the Crown sought to control the judiciary increased after the Townshend Act of 1767 suggested that it would soon begin paying judges’ salaries, as it did in Massachusetts six years later.
Maier, American Scripture (1997).
Our system of justice does not render verdicts based on fake facts, fake news, or untested assertions. Our Constitution, evidence codes, adversarial process, and rules of procedure prevent an assertion from becoming evidence prior to a testing of its truth and reliability. All of the powerful constitutional and evidentiary protections afforded to a litigant in our system are hollow words without an independent judiciary who can render judgments or rulings free from the direction of others, whether individuals or branches of government.
Our system of justice is a myth and our constitution but fading words on parchment unless we dedicate ourselves to protecting this independence. In his article featured in this issue, David Feingold points out that the public’s faith in our system of justice is being eroded by unprecedented attacks on our judiciary, particularly by the leader of the executive branch. But the greatest risk to the continued independence of our judiciary is not in the attacks themselves but in the indifference of the citizenry to the importance of that independence. Indifference will lead to injustice, indifference is dangerous, “[i]ndifference, after all, is more dangerous than anger and hatred. Anger can at times be creative. One writes a great poem, a great symphony, has done something special for the sake of humanity because one is angry at the injustice that one witnesses. But indifference is never creative. Even hatred at times may elicit a response. You fight it. You denounce it. You disarm it. Indifference elicits no response. Indifference is not a response.” (Elie Weisel, The Perils of Indifference, White House speech given as part of the Millennium Lecture Series, April 12, 1999.)
MCBA Past President David Feingold and I urge our members to be conscious of any attack directed against an independent judiciary and strive to defend it.
Charles Dresow is a partner at Ragghianti Freitas LLP and is the MCBA President for 2019. His practice focuses on representing those accused of crimes.