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Judicial independence was not intended to be a shield from public
scrutiny. Judicial independence in America was a reaction of the founding
fathers to persecution at the hands of the English monarchs. The intent
was to prevent abuses of personal liberty - among them unreasonable
searches and clandestine judicial proceedings in the "Star Chamber". The
objective was to create a judicial branch able to rule fairly and
impartially without fear of political retribution.
More than a
hundred years ago, by judicial fiat, the judges were declared not to be
liable in civil actions for their judicial acts even where it was alleged
to have been done maliciously and corruptly. Bradley v. Fisher, 80 U.S.
335 (1872) Accordingly, judges cannot be sued for damages. However, in Pulliam v. Allen 104 S.Ct. 1970 (1984)
the Supreme Court reaffirmed the
principle that judicial immunity was not a bar to perspective injunctive
relief against state judicial officers acting in their judicial capacity.
Pulliam went a step further and allowed an award of attorney fees
and costs against a judge under the civil rights act.
Pulliam
traced the history of judicial immunity to the Star Chamber of early 17th century England.
The objective was to preserve the King's authority. The judges of
the Star Chamber led by Lord Coke declared the judges of the King's Bench
immune from prosecution in other courts for their judicial acts which
included any alleged corruption. The objective was not to slander or
bring scandal on the justice of the King and so, the judges were made
"only to make account to God and the King, and not to answer to any
suggestion in the Star-Chamber." Eventually, this judicial immunity
was extended to protect judges of all courts, for actions within their
so-called jurisdiction.
The objective of judicial immunity was
redefined at a later date by the English courts which was followed in
Bradley v. Fisher supra., on the quoted ground that judges
"should be permitted to administer the law
under protection of the law, independently and freely, without favor and
without fear.
This provision of the law is not for the
protection or benefit of a malicious or corrupt judge, but for the benefit
of the public, whose interest it is that the judges should be at liberty
to exercise their functions with independence, and without fear of
consequences."
The Supreme Court in upholding injunctive
relief against judges in Pulliam relied on common law precedent and
reasoned that Congress did not intend to limit injunctive relief
under the Civil Rights Act of 1983 against state court judges acting
within their jurisdiction. The Supreme Court continued to interpret the
Civil Rights Act to mean that Congress' intent was to reach
unconstitutional actions by all state actors, including judges. Thereupon,
the judiciary and the attorneys lobbied Congress to exempt judges from
injunctive relief under Section 1983. The judges were concerned
about the necessity to defend actions brought against them and for their
personal liability for attorney fees and costs. In a little-noticed
provision of the Federal Courts Improvement Act of 1996 Congress adopted a
law protecting judges from actions brought against them under the Civil
Rights Act. It essentially reversed the effects of the Pulliam
decision and prohibits prospective injunctive relief against
judges "unless a declaratory decree is violated or declaratory relief was
unavailable."
The theory
behind judicial independence that a judge should not be held
accountable for following the rule of law, no matter how unpopular,
would appear to be mere rhetoric. Many litigants have come to realize that judicial indepen-dence
means just that, a total lack of accountability. Those who advocate the
independence of the judiciary disregard that not all judges are
infallible. Many judges are not the ideal neutral arbiters willing to
listen to arguments from both sides before making a decision. So, in many
cases judicial interpretation of the law is not carried out in a
legitimate, responsible and reasonable manner.
The advocates
of judicial independence refuse to take note of these complaints and would
merely attribute the public's dissatisfaction with the judiciary to
differences of opinion on intellectual political issues such as school
desegregation, the right to abortion and the death penalty.
The legal
profession resorts to its usual subterfuge against public outcry by resorting
to so-called education of the public with various publications, articles
in the news media and lectures on the benefits of judicial independence.
In 1997 the American Judicature Society
http://www.ajs.org
created the Center for Judicial Independence.
The American Bar Association followed by establishing a Standing Committee
on Judicial Independence, see
www.abanet.org and published its extensive
Independent Judiciary Report extolling the virtues of an independent
judiciary. However, these organizations merely attempt to change the
perception of the public, but not the judicial abuses which prevail in
practice. Judicial independence still continues to live on in theory,
protected by judges of the highest court. Justice
O'Connor stresses importance of effective judicial systems
However, there is a growing national
political fight between the courts and Congress on judicial independence.
To read about it click here.
There is also concern about the influence of special interest groups in
judicial elections, click here,
which has been much talk, with little or no action.
There is now a company
http://usajudges.com which promulgates
information on individual judges claiming that the single biggest
factor on whether you receive justice is the judge hearing your case. That
the lawyers know this and they spend lots of time trading information on
local judges with their colleagues and make notes of how different judges
behave and react, usajudges offers reports on the judges available to
lawyers and nonlawyers.
Judicial Conference Moves to Enhance Judges' Accountability
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