… that’s hard to type fast five times.
Suzanne Spaulding on Lawfare discusses the necessity of judicial independence:
“Judicial independence is not conferred so judges can do as they please. Judicial independence is conferred so judges can do as they must.” This essential insight from Justice Anthony Kennedy is cited by Chief Justice John Roberts in his 2024 Year End Report on the Federal Judiciary. The report rightly expresses concern about declining trust in the independence of the courts.
On March 4, following an address to Congress, cameras caught President Trump patting Roberts’s shoulder, saying, “Thank you again. Thank you again. Won’t forget.” Earlier, Attorney General Pam Bondi—commenting on the freeze on federal funds instituted by the administration—asserted that “the Supreme Court is backing us up.” Yet, on Wednesday morning, the Supreme Court rejected a plea from the administration to overrule a lower court’s decision that funds must be released to pay foreign aid contractors for work they have completed.
That said, many more cases involving the current administration are making their way to the Supreme Court. When faced with even more fundamental constitutional claims, there is a risk that, in a sincere effort to preserve the institution and avoid a constitutional crisis, the Court may seek to sidestep a significant confrontation with the executive branch in the face of recent threats to ignore court orders. This would itself reflect a devastating lack of independence and de facto create the very constitutional crisis and damage to the public’s trust that the chief justice presumably seeks to avoid.
A theme I haven’t revisited of late is the importance of the process of nomination of judges by the Executive, be that Governor or President, and confirmation or rejection by a designated Legislative branch.
The idea is to bring into the equation the judgment, both as to qualifications and character, of both Executive and Legislative, knowing that they are discussing a potential member of a branch of government that is independent, to a high degree, from the other two branches. That independence contributes to a governance system’s efficacy and stability.
And the ideological allegiance currently promoted by both Parties works precisely against such independence. Anything that works against rulings against the one’s nominator or confirmers is an important matter.
Let’s summarize this. Yes, politics is a normal part of government. However, illicit politics includes such actions that subvert the design of government, from the promulgation of laws, their execution, the judgment upon those on whom the laws fall, and the law itself.
Thus, when excellent, independent judges, regardless of their political stripes, are bypassed in favor of candidates who are considered middling, such as Justice Thomas, the system is subverted. Yes, Thomas and others may be reliable conservative votes, but that does not excuse such nominations for the top Court of the judicial branch of government.
