When is Judicial independence threatened?

Do Reactions to Unpopular Court Decisions Endanger Judicial Independence? 

Article III of the U.S. Constitution created the U.S. Supreme Court, granted Congress the authority to establish lower federal courts (while state courts were already in existence), and outlined specific measures to ensure the independence of the judiciary. First, federal judges hold their positions for life, barring impeachment, meaning they cannot be dismissed by the president, unlike in Nigeria. Second, the Constitution ensures that federal judges receive compensation that "shall not be diminished during their continuance in office," which prevents Congress from retaliating against judges through salary reductions based on their decisions. These constitutional protections strengthen the autonomy of federal courts from other branches of government and from public retaliation. An independent judiciary is vital for upholding the rule of law, ensuring all governmental branches adhere to the Constitution. As Thomas Paine noted,

 “A constitution is a thing antecedent to a government, and a government is only the creature of a constitution.” 

However, not every country with a written constitution safeguards the rule of law. For instance, China has a written constitution that includes promises of free speech and religious freedom, yet this constitution is subordinate to the Communist Party. Article 126 states that the courts must "exercise judicial power independently and are not subject to interference by administrative organs, public organizations, or individuals.” However, the involvement of Chinese Communist Party leaders in judicial decisions is classified as "leadership" rather than "interference." Additionally, China lacks the separation of powers, which would allow the judiciary to operate independently from other branches, and judicial review, which is necessary for enforcing the Constitution. Both of these components are crucial for maintaining judicial independence and upholding the rule of law.

Judicial independence has been a fundamental principle of government. However, certain court decisions and judges occasionally provoke strong backlash from politicians, advocacy groups, the media, and the public. Despite the intensity of these reactions, official responses have typically been confined to legitimate checks on the court's authority. For instance, the Supreme Court's 1973 ruling in Roe v. Wade, which affirmed a woman's right to choose regarding abortion, incited significant anger among critics, including various Republican presidents. These opponents sought to modify the ruling through constitutional amendments and encouraged state legislatures to enact restrictive abortion laws, hoping that such laws would be challenged in court and potentially overturn Roe v. Wade on appeal. Donald Trump has faced criticism for his confrontational language toward judges and specific court decisions. During the 2016 presidential campaign, he questioned the impartiality of a federal judge of Mexican descent, suggesting his heritage would affect his rulings. Once in office, Trump targeted a federal judge in Washington State on Twitter for temporarily blocking his travel ban from predominantly Muslim countries in February 2017, dismissing him as a "so-called judge" and labeling the decision "ridiculous." He later tweeted, “Just cannot believe a judge would put our country in such peril,” adding that if any issues arose, people should blame him and the judicial system. Months later, Trump erupted again when a federal judge from the Ninth Circuit Court blocked his restrictions on asylum-seekers at the U.S.-Mexico border. He condemned the ruling as a "disgrace" and "not law," referred to Judge Jon Tigar as "an Obama judge," and criticized the Ninth Circuit for its unfavorable rulings against him, threatening that such outcomes would not continue. In response, Chief Justice John Roberts, appointed by Republican President George W. Bush, stated,

 'We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for'. 

Trump responded to this assertion by saying, Sorry Chief Justice John Roberts, but you do indeed have “Obama judges,” and they have a much different point of view than the people who are charged with the safety of our country… . We need protection and security—these rulings are making our country unsafe! Very dangerous and unwise!

 Some argue that such statements jeopardize the independence of the American judiciary, despite Trump allowing the judicial process to function without interference thus far. The Brennan Center for Justice contends that Trump's attacks threaten "our entire system of government" since courts, as protectors of the law and Constitution, rely on public respect for their rulings and officials' compliance with their decisions. They emphasized that "separation of powers" is not a threat to democracy but is its essence.

 Long before Trump took office, several U.S. Supreme Court justices, including Chief Justice John Roberts, publicly voiced concerns about the increasing threats to judicial independence. In response to these concerns, the American Judicature Society established a task force to monitor and counter attacks on the judiciary, while the American Bar Association has maintained a Standing Committee on Judicial Independence since 1997. 

In many parts of the world, threats to judicial independence extend far beyond mere rhetoric. In such regions, the concept of judicial independence is often difficult to comprehend. Judges may fear retaliation for unpopular rulings, facing dismissal, arrest, or worse. For instance, in 2019, Nigeria's President Muhammadu Buhari unilaterally suspended Chief Justice Walter Onnoghen just weeks before a general election. A United Nations-appointed independent rights expert condemned this action as an assault on judicial independence, asserting that international human rights standards dictate that judges can only be dismissed for serious misconduct or incompetence and that any suspension or removal should be determined by an independent body, such as a judicial council or court. Buhari justified the suspension by claiming an ethics violation, but critics noted the lack of due process, with his presidential rival calling it a "brazen dictatorial act." Earlier that same year, Poland's Parliament passed legislation that restructured the Supreme Court, allowing the removal of 27 judges, including the chief justice, under the pretense of eliminating communists and obstructionists from the previous regime. This law aimed to replace them with judges loyal to the current ruling party. Following the European Union's actions to revoke Poland's voting rights in response, the government reversed its stance, reinstating the judges. Nevertheless, concerns persist regarding ongoing threats to judicial independence, not just in Poland but in other democracies, such as Hungary.