President's Message

Independent courts are vital to democracy

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Linda Klein

Photograph Courtesy of the Office of the President.

Judicial independence is one of the most important principles of the rule of law. It is critical in defending people from intrusions and overreach by the government and preserving a free and democratic society.

James Madison, when drafting the Constitution, sought to guard against a “tyranny of the majority” by designing a government that was balanced, with three separate, co-equal branches—including an independent judiciary.

Article III, Section 1 of the Constitution protects the federal judiciary by granting lifetime appointments “during good behavior” and compensation that “shall not be diminished.” This means federal judges can’t be threatened with the loss of their jobs or a pay cut if they render an unpopular decision.

An independent judiciary envisions that courts should follow the rule of law, basing their decisions on constitutional principles, applying relevant statutes and legal precedents to the facts of each case. Unlike politicians, judges should be immune from public opinion and special interests and must decide cases according to the law, even when doing so may be unpopular.

But the structure set up by our nation’s founders is not enough to guarantee this very important tenet of our democracy.

Public trust is eroded when leaders attack judges’ character and competence. Disagreeing with a decision is one thing. But personal attacks on judges are attacks on our Constitution. The ABA and the legal community cannot tolerate assaults on the judiciary because they can chip away at the legitimate authority of that branch of government and give undue influence to the legislative and executive branches.

In many jurisdictions, state court judges face elections. Campaign contributions and interest group pressures during these elections, at the very least, create an appearance of influence and undermine public confidence in the impartiality of the judiciary. So do political attack ads that mislead the public about the legal process and the role of judges.

Because judges must follow professional codes of conduct that prohibit them from speaking about pending cases, they are often prevented from publicly defending themselves from attacks. It is therefore up to the bar, the legal community and all citizens to protect the integrity of the courts.

In his book, On Tyranny, Yale history professor Timothy Snyder studies the ways that authoritarian regimes came to power and offers lessons to protect against tyranny. He argues that it is imperative to defend institutions, which include the press, trade unions and, of course, the courts. He points out that although institutions normally protect people, there are times when institutions cannot protect themselves and need to be defended.

“Judicial independence does not just happen all by itself,” associate Supreme Court justice Sandra Day O’Connor wrote in 2008. “It is tremendously hard to create, and easier than most people imagine to destroy.”

The American Bar Association, often in partnership with state and local bar associations, has long made defending the courts and preserving judicial independence a priority. The ABA evaluates the professional qualifications of federal judicial nominees, responds to unwarranted criticism of judges and, through programs like Law Day, provides information about the role of the judiciary in our system of government. We recently compiled some of the ABA’s many resources at Please share them widely.

The ABA has opposed state and federal legislation that has attempted to punish judges for making unpopular decisions or even from hearing cases that deal with controversial issues. These are attempts to circumvent the authority of the courts.

Because the bar is uniquely qualified for this role, it will continue its important work to preserve the independence of the judiciary and take action when judges are subjected to attacks.

The legal community must remain diligent and vigilant in their support of institutions, especially the autonomy of the courts. Judicial independence ensures the rule of law, safeguards our democracy and is what former Supreme Court Chief Justice William Rehnquist called “the crown jewel of our system of government.”

Follow President Klein on Twitter @LindaKleinLaw or email [email protected]. This article appeared in the June 2017 issue of the ABA Journal with the headline “Independent Courts Are Vital to Democracy: Our judiciary safeguards rights and liberties and needs to be protected from attacks.”


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