Judicial Independence and How to Ensure It
Patricia M. Hynes
On April 5th, former Supreme Court Justice Sandra Day O’Connor spoke to a packed house at the New York City Bar. Her topic was judicial independence and what she sees as its greatest threat: the election of judges.
Our Founding Fathers had the foresight to prescribe an appointment system for federal judges, with length-of-service and salary safeguards that would preserve the judiciary’s independence and keep the undue influence of politics and special interests out of the process. However, on the state level, where the majority of court cases are brought, most judges must raise money for election campaigns that can be every bit as expensive and partisan as Senate races.
Only in America, Justice O’Connor reminded us, are judges elected, and as a result 70% of the public, and 25% of judges themselves, believe that judges are influenced by campaign contributions. “How can people have faith in a system when so much money is spent on judicial elections?” asked Justice O’Connor. She asked the audience to contemplate how the judges in Brown v. Board of Education might have ruled if they knew they would face elections following their rulings.
Unfortunately, the problem is as old as our court system, and was a central issue when our Association was formed in 1870, because the New York State constitution of 1846 had introduced judicial elections to replace the appointment system that had been in place.
What, then, is to be done about this issue that has defied all solutions to date, and which Justice O’Connor considers nothing less than a threat to our democracy? The Bar must continue to press the Legislature to make this necessary reform.
In addition, Justice O’Connor believes that a basic problem is ignorance about our courts among the populace, which is exacerbated by the decline in civics education in our schools. That’s ironic, she says, because a central purpose behind the creation of our public school system was to impart knowledge of how our government works.
Citing an Annenberg study, Justice O’Connor lamented that only one-third of Americans can name the three branches of government, and only 15% can name the Chief Justice of the Supreme Court. However, two-thirds can name one of the judges on "American Idol."
The solution, then, for ensuring judicial independence, according to Justice O’Connor, is educating the public on the role and importance of the judiciary, followed by public engagement in order to address judicial independence. This begins with more civics education, but in a manner that engages young people in the 21st Century.
That’s why Justice O’Connor has worked to launch a Web site for middle school students—www.ourcourts.org—that teaches “21st Century Civics” in a non-linear, interactive way that resonates with today’s youth. Since 97% of kids today play video games, Justice O’Connor wants them playing “Argument Wars” on cases including Brown v. Board of Education, Miranda v. Arizona, and Gideon v. Wainwright. In “Supreme Decision,” the player "clerks" for a Supreme Court Justice on cases such as one involving a student reprimanded for wearing a band t-shirt to school. And “Do I Have a Right?” is a role-playing game in which students grow a virtual law firm. The site also features extensive lesson plans for teachers.
Justice O’Connor ended her speech with a plea to the New York City Bar’s members to continue working to ensure the independence of the judiciary. It is a task we must embrace. If lawyers will not speak out for an independent judiciary, who will? Like Justice O’Connor, we should find ways for this message to be heard by and resonate with the American public.