Editor’s Note:  Kent A. Jordan was appointed to serve as a United States District Judge for the District of Delaware in November of 2002.  This is a talk he gave in March 2003 to a conference of Pi Sigma Alpha chapters from colleges in Utah addressing a question that fires much political discourse in these sometimes divisive days.  What is the role of a judge especially in a free society when the people have spoken? 

As was mentioned in the kind introduction you just heard, I am a freshly minted federal judge.  I took the oath at the end of November, and these last four months have been a whirlwind.  One of the most interesting changes in my life has been the experience of seeing friends and professional colleagues I have known for years paying an appropriate but wholly new deference to me in public.  I’m happy to say that it still sounds strange to me to be greeted by the title “Your Honor,” and I hope that it will remain that way, because the momentary strangeness of those words causes me to reflect upon both the high trust and the power and responsibility of the office I hold.

There are several dangers, of course, to getting used to being addressed in honorifics and being treated deferentially, but they are all, generally speaking, variations on the themes of isolation and pride.  Those dangers were emphasized to me gently by a couple of long-serving judges.  On the issue of power and pride, a state court judge, taking a good natured jab at the supposedly greater power of the federal judiciary, told me a joke of the “change a light bulb” genre: “How many federal judges does it take to change a light bulb?  Just one.  He holds up the bulb, and the whole world revolves around him.”  As to isolation, another judge made this only half-facetious complaint: “You will almost immediately lose any idea of whether you still have a decent sense of humor, because suddenly your every joke will get big laughs.  If you said to a bunch of lawyers, ‘guess what? That’s what!’ you’d leave them in hysterics.”  Fortunately, none of you will have to appear before me as attorneys, so you are not duty bound to laugh at any lame attempts I may make at humor.

Since you are all students of politics, I’ve picked a topic directly at the cross-roads of law and politics: as I mentioned a moment ago, I’m going to speak about restraint, the value of restraint in the exercise of power, and particularly in the exercise of judicial power.  Let me start with a true story about restraint.  A mother with two young boys was making them their favorite Saturday morning breakfast, pancakes.  As the first pancake came off the griddle, both boys reached for it immediately and a quarrel began.  The mother, being a devout woman, said, “Now, boys.  I want you to think how Jesus would behave.  Would he grab the pancake or would he let his brother have the first one?”  The older of the two boys, the five year-old, looked contrite and said, “you’re right, Mommy. ”  Then, turning to his little brother, he said, “Spence, you be Jesus.”

Here is a picture of my family on the day of my public investiture. Pictured are (from left to right) my brother Keith, my son Clint, my Mom and Dad, me and my wife, Michelle, with sons K.C. and Jesse standing in front of us, daughter Bethany, sons Nate and Ty, neice Kelly Lear and her husband Jon Lear.

Millenia in the Making

Restraint is a quality we like to see in someone else, particularly when our interests are liable to benefit from it.  And that is as true in the brokering of governmental power as it is in the battle for pancakes.  In fact, the primary reason for having an independent judiciary is not so that judges can enjoy some special status, but so that the judiciary can restrain the other branches of government.  The intention is that, with limited external checks, the judiciary will exercise enough self-restraint to itself be, as Hamilton called it, the “least dangerous” branch of government.

What we take so thoroughly for granted – a free society with restrained powers of government – took millennia of human history to achieve and is even now the exception, not the rule.  The intoxication of power is proverbial, and the willingness of our Founding Fathers to establish restraints on their own power and to institutionalize those restraints so that they remain intact and govern us still are the very reasons the Founders are revered to this day.  The most powerful of them all was the example for them all.  Of George Washington, his biographer observed, “In all of history few men who possessed unassailable power have used it so gently and self-effacingly for what their best instincts told them was the welfare of their neighbors and all mankind.”  (J. Flexner, Washington: The Indispensible Man, Little Brown 1974, at xvi.)

An Independent Judiciary

Dilating for a few minutes on the external restraints on judicial power, one of the primary ways that the Founders sought to achieve restraint was through the separation of powers.  That is an innovation that we now take to be so commonplace as to be trite and ripe for joking.  In fact, one of my family’s favorite movies is a comedy with Steve Martin, Chevy Chase, and Martin Short called “The Three Amigos.”  It’s silly, so it suits our humor well. 

Martin, Chase, and Short play silent screen cowboys who are thrown off a Hollywood lot and go to Mexico where they try to save a small village called Santa Poco, roughly the way the good guys did in the famous Western “The Magnificent Seven.”  When the bad guys kidnap a beautiful young woman from the village, the Three Amigos go to save her.  Unfortunately, Steve Martin’s character lands right in the middle of the bad guys’ lair and is immediately surrounded.  With great bravado, he tells them, “I have three demands: one, that you stop harassing the people of Santa Poco; two, that all the land in Mexico be redistributed equally among the people and a proportional system of government be established, consisting of three separate but equal branches: the legislative, the executive, and the judicial; and three, that the girl Carmen be returned to me unharmed.”  Of course, they immediately begin to beat him up.

But the notion of an independent judiciary is no laughing matter.  It stirred intense political debate in Eighteenth Century America and it still does today.  Among the catalogue of tyrannical acts that the Second Continental Congress, in the Declaration of Independence, accused George III of committing against the Colonists were that he had, “obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers.” And that he had, “made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries.”

One can suppose that the signers of the Declaration, particularly the lawyers among them, like Jefferson and Adams, were sensitive to King George’s making the colonial judges dependent upon him for their tenure and salary because it flew in the face of the rights Englishmen expected.  Since the Settlement Act of 1700, English judges had been granted tenure that lasted during their “good behavior,” thus affording them some protection from the influence of the Crown.  (See An Independent Judiciary, Report of the ABA Commission on Separation of Powers and Judicial Independence, July 4, 1997, at p. 68.)  But Colonial judges had no such protection, and the difference rankled.

Still, when it came time to determine how the judicial power should be administered in our new nation, the idea of life-tenured, independent judges was not without controversy.  Many people, including Jefferson, had a deep distrust of a too independent judiciary.  Madison thought it necessary to make an explicit defense of the separation of powers, saying in the Federalist Papers, “the accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.” (The Federalist Papers, No. 47, Mentor Books 1961, at p. 301.)  Focusing specifically on the judiciary, he went on to say, quoting Montesquieu: “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control … .  Were it joined to the executive power, the judge might behave with all the violence of an oppressor.”  (Id.)

It was Hamilton, though, who specifically took up the topic of an independent judiciary.  In the famous Federalist No. 78, he set forth the compelling reason for an independent judiciary.  (This is a long quote, so bear with me.)

The complete independence of the courts of justice is peculiarly essential in a limited Constitution.  By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like.  Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.  Without this, all the reservations of particular rights or privileges would amount to nothing. (Id. at 466.)

The Heart of the Matter

In short, the only way to keep the legislature in check is through the fundamental principle of Judicial Review.  Hamilton, later in the same Federalist Paper, put the point more directly, saying, “No legislative act … contrary to the Constitution, can be valid[,]” and further that it is for the courts to make the comparison between legislative acts and the Constitution, to make sure the legislature stays in bounds.  That observation presaged the famous opinion by Chief Justice John Marshall in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), expounding on Judicial Review. 

As you may know, Marshall was not the first Chief Justice, but he is widely regarded as the most influential early leader of the Court and none of the precedents he authored has been more influential than Marbury, in which he asserted the power of judicial review with these oft-quoted words: “It is emphatically the province and duty of the judicial department to say what the law is.”  Id. at 177. 

Here we have the heart of the matter and the cause for controversy when the Constitution was being debated and still today.  If the courts say what the law is, what is to stop them from becoming an unelected and unaccountable aristocracy, usurping the power of the people?

Hamilton tried to assuage concern that an independent judiciary would be too powerful.  He asserted that, as established under Article III of the Constitution, the judiciary would have “neither force [as does the executive branch] nor will [as does the legislative] but merely judgment[.]”  (Id. at 465.)  In one sense, his argument was too facile.  It did not answer the central point that opponents of the Constitution raised about the federal courts.  Here is an illustrative quote from one of them, who’d adopted the pseudonym “Brutus,” as Hamilton had adopted the pen name “Publius”:

“They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and their salaries.  No errors they may commit can be corrected by any power above them … nor can they be removed from office for making ever so many erroneous adjudications.”  (Essays of Brutus, No. XI, Jan. 31, 1788, reprinted in The Anti-Federalist Papers and the Constitutional Convention Debates at p. 293 (R. Ketcham ed., 1986), quoted in J. Frerejohn, Independent Judges, Dependent Judiciary: Explaining Judicial Independence, 72 S. Cal. L. Rev. 353 at n.2.) 

Blunt Instruments

In other words, if you truly insulate them from politics and give them the power to declare what the law is, you have created an unchecked power and have the makings of despotism.  It will not do simply to say, as Hamilton did, that you can relax because the courts cannot enforce their judgments or appropriate their own salaries.  That does not wholly answer the point.  Those are real and important checks on judicial power, but they are blunt instruments and the use of them can put the entire system at risk. 

For example, when Andrew Jackson famously said of a Supreme Court opinion he didn’t like, “John Marshall has made his decision, now let him enforce it,” he was correcting what he viewed as an abuse by the Court, but (if you accept the premise that the Court has the final say on the law) he was doing it at the expense of his own sworn oath to faithfully execute the law.  Were the Congress to simply stop appropriating money for the payment of judges and the operation of the Courts, you would not get a course correction, you would get a result akin to what they have had in Russia, where a third of all the judicial vacancies in Moscow stay vacant because no one wants or will take a job with such low pay and the threat of intimidation.  (Statistic from J. Clifford Wallace address...)

What is the Answer?

So what is the answer?  Stripping the judiciary of life tenure and secured salaries?  Several states have elected judges and it is not at all unusual to hear members of the bar in such jurisdictions candidly admit their concern about a system in which the judge’s biggest campaign contributor is appearing on the other side in their next case.

Is the security to be found in the appointment and confirmation functions of the President and Senate, respectively?  In the power of the House to impeach and the Senate to remove judges from office?  In Congress’s power to abolish the lower federal courts and to narrow the appellate jurisdiction of the Supreme Court?  Each of those are, again, true checks on potential abuses, but they are in some instances uncertain in effect, and in others hard to implement, and, in each case, can surely be highly corrosive. 

As to uncertain in effect, do you know how Eisenhower felt about his Supreme Court appointments?  When he was asked after his retirement if he’d made any mistakes while President, he said, yes, “There were two.  And they are both on the Supreme Court.”  (Quoted in L. Van Deerlin, What We Mean When We Say, Independent Judiciary, OpEd piece in June 14, 2000 San Diego Union-Tribune.)  He was speaking, of course, of Earl Warren and William Brennan, two jurists whom many Americans regard as giants of the law but who still provoke controversy today.  Lincoln said of his nominee Chief Justice Salmon P. Chase, “he has every attribute of a dog, except loyalty.”

As to the difficulty of impeachment, it is, I’m happy to say, hard enough that you have to reach back to Jefferson’s administration for an example of a judge being impeached for the substance of his decision making.

Checks Sometimes Corrosive

As to the corrosive effects of the checks, you can read of how the confirmation wars have affected the atmosphere in the U.S. Senate in scores of articles and op-ed pieces over the years since Judge Robert Bork’s name became a verb.  And, of course, you can imagine the good feelings left after an impeachment trial.  Less dramatic but still capable of stirring strong feelings is legislation such as that which narrowed jurisdiction over habeas corpus relief (Anti-Terrorism and Effective Death Penalty Act of ’96) and immigration issues (Illegal Immigration Reform and Immigrant Responsibility Act of ’96) and prison administration (Prison Litigation Reform Act of ’96).  (Compare A. Lewis, An Independent Judiciary, 43 St. Louis U. L. J. 285 and Hon. J. Sessions, Reflections on Judicial Independence, )

I repeat: it is not that those checks are without effect.  They do have effect.  But they are not, and could not be expected to be, wholly effective, because they were never meant to be.  The judicial independence that all points on the political spectrum claim to revere is, by definition, something which would evaporate were the courts subject to wholly effective control by the other branches of government.  So what is the answer?  It is one that may give people little comfort but in the end it is the only effective day-to-day restraint, I think.  It is self-restraint.

The Answer

In theory at least, this is like motherhood and apple pie.  Public figures of all political backgrounds can nod in appreciation of it.  Justice Ruth Bader Ginsburg, appointed by President Clinton, had this to say about the self-restraint judges try to exercise every day:  “Some members of Congress and of the press speak, write, or act as though they do not understand how seriously most federal judges –whether appointed by Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush or Clinton [and now we could add George W. Bush] – take their obligation to construe and develop the law reasonably and sensibly, with due restraint and fidelity to precedent, and to administer justice impartially without regard to what the ‘home town crowd’ wants.”  (Quoted in B. Hebert, A Plan to Intimidate Judges, OpEd piece in Dec. 4, 2000 NYTimes.) 

U.S. Senator Jeff Sessions, a Republican from Alabama, serves on the United States Senate Judiciary Committee with Utah’s own Senator Hatch and had this to say about judicial independence and self-restraint: “I hope that the federal judiciary will realize that it holds the key to its independence.  When judges obey the Constitution and respect the democratic process, they are immune from any lasting criticism … .”  (Hon. J. Sessions, Reflections on Judicial Independence, at 5.)

But what is courageously independent judicial decision-making and what is rank usurpation of the democratic rights of the people is very much in the eye of the beholder. If you don’t believe that, just turn on your television or radio when the anniversary of Roe v. Wade rolls around and witness the demonstrators squaring off.   There are developments in constitutional law that at times provoke intense controversy, like the doctrine of “substantive due process” or the application of the Equal Protection Clause or of the decisions founded on an implied right to privacy.  These stir passionate debates.  At times, you can almost see the heat waves rising off the rhetoric. 

Fortunately for all of us, I won’t venture into any of those topics today, but the existence of those debates is noteworthy on this topic of restraint because it reminds us that we continue to rely upon the judiciary to address very important but deeply divisive issues. 

This is not a new phenomenon.  Alexis de Tocqueville observed almost two centuries ago that, “there is hardly a political question in the United States which does not sooner or later turn into a judicial one.”  (Quoted in A. Mikva and W. Sessions, Guarantee the Independence of All Judges, OpEd piece in 3/12/01 L.A. Times.)  Perhaps knowing that would be the case, the Founders set up the structures to support judicial independence, not because judicial independence is a virtue in itself, but because it is a prerequisite to fairness and impartiality in taking on divisive issues.  We want judges looking at the law, not over their shoulders. (See J. Ferejohn, Independent Judges, Dependent Judiciary: Explaining Judicial Independence, 72 S. Cal. L. Rev.at 354.)  

The Rights of the Majority and the Rights of Individuals

In focusing on the law, however, a judge must have respect both for the rights of the majority, i.e., for the democratic processes of our Republic, and for the rights of individuals.  And here is where self-restraint comes in.  It takes restraint to recognize that even when you have the tools to right wrongs, not every thing that you perceive as wrong is yours to right.  An appreciation of that fact is required for the “least dangerous branch” to really be anything less than dangerous.

Please do not mistake what I am saying.  Dramatic episodes in our nation’s history show the great good that comes when a judge has the courage to stand up for individual rights in the face of terrible political pressure. 

As one quick example, in 1931 there was an infamous case in the South that came to be known simply as the Scottsboro case.  It involved nine black men who were convicted of raping two white women on a freight train.  The evidence was thin, to say the least, and the defense lawyers filed a motion for a new trial, but the odds seemed long that there would be any relief for the defendants.  The state trial judge assigned to the case was James E. Horton, Jr.  He did not have the security of life tenure in his position.  He had to face periodic election.  Nevertheless, he read his opinion in open court and granted the motion, beginning with these words, “Social order is based on law, and its perpetuity on its fair and impartial administration.”  (Quoted in A. Lewis, An Independent Judiciary, 43 St. Louis U. L. J. 285 at 295-96.)

Horton knew that his decision would cost him his job, and he was right.  But, interviewed years later at an event commemorating the case, he maintained that he had no regrets.  He proudly held to a tradition which he used a Latin phrase to express (and what discussion of the law would be complete without a little Latin): fiat justitia ruat coelum – “let justice be done though the heavens may fall.” (Id.)

The Courage Not to Use His Power 

That’s a stirring story, and I hope it makes you grateful for the courage of that wonderful judge.  It certainly makes me feel that way and it makes me thankful for the structural protections that our Constitution gives to federal judges so that they can do the right thing without seeing their careers go down in flames.  My point today, though, is the far less stirring but no less important flip side of that story: that there are times when a judge needs to have the courage not to use his or her power to right what strikes him or her as wrong.  It takes courage to exercise self-restraint:  to deny a sympathetic criminal defendant’s motion, to refuse relief to a sympathetic civil plaintiff suing a powerful and perhaps unappealing corporate defendant, to decline the demand that a law be struck down, even though the politics behind it are distressing.

No one will ever have a commemorative event for a judge who says, “I may not agree with it, but it is not unconstitutional and it is authorized by law, so the result stands.” Indeed, in some quarters that judge will be vilified for being a toady of an oppressive system, for lacking moral courage.  But such criticisms are dead wrong.  Self-restraint is not borne of cowardice or a go-along-to-get-along mentality.  It is borne of a fundamental respect for the law itself and an understanding that public trust in our government institutions, including the courts, is not an inexhaustible resource.

A Man for All Seasons

On the first of those two ideas, respect for the law itself, I have always found the following passage from A Man for All Seasons to be inspiring.  In that great historical play by Robert Bolt, Sir Thomas More, the Chancellor of England under Henry VIII, is seeking some way to keep his head, literally, while not losing his soul with a false oath.  As another character in the play leaves a scene, More’s family urges him to have the man arrested because they fear he will betray More.  More refuses to abuse his legal authority and tells his family that the man should be free to go, “if he were the Devil himself, until he broke the law!”  So, says More’s son-in-law, William Roper, “now you’d give the Devil the benefit of law!”  “Yes,” says More.  “What would you do? Cut a great road through the law to get after the Devil?”  Roper answers, “I’d cut down every law in England to do that!”  Can you hear the echo of well-intentioned but unrestrained judges in that comment?  Here is More’s classic answer:

Oh?  And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat?  This country is planted thick with laws from coast to coast – man’s laws, not God’s – and if you cut them down – and you’re just the man to do it – d’you really think you could stand upright in the winds that would blow then?  Yes, I’d give the Devil benefit of law, for my own safety’s sake. (R. Bolt, A Man for All Seasons, Vintage Internat’l Ed. 1990, at p. 66.)

Another Arena of Power

On the exhaustible nature of public trust, I want to turn for an example away from the law to another arena of power that is much in the news today, the military.  General George Marshall was the Chief of Staff of the United States Army during World War II.  He was a man of extraordinary integrity and insight, whose understanding of the proper uses of power were a primary influence in the rebuilding of Europe after that war.  (An American recently traveling in Europe and having abuse heaped on him over America’s ramp up to war with Iraq responded by saying, “I have two words for you: ‘Marshall Plan.’”) 

Anyway, in the Spring of 1943, the Germans were still deep in Russia, the British and American forces had not yet begun to take Italy, the Japanese controlled most of the Western Pacific, but Marshall was looking forward to the time when war would be over and the rebuilding would begin.  He called to his office a Major General named John Hilldring.  Hilldring was given the job of organizing military governments for countries to be liberated or conquered.  Here’s what General Hilldring reported that General Marshall said to him:

I’m turning over to you a sacred trust and I want you to bear that in mind every day and every hour you preside over this military government and civil affairs venture.   … We have a great asset and that is that our people, our countrymen do not distrust us and do not fear us [meaning the military].  They do not harbor any ideas that we intend to alter the government of the country or the nature of this government in any way.  This is a sacred trust that I turn over to you today … .  I don’t want you to do anything, and I don’t want you to permit the enormous corps of military governors that you are in the process of training and that you are going to dispatch all over the world to damage this high regard in which the professional soldiers of the Army are held by our people, and it could happen, it could happen Hilldring, if you don’t understand what you are about. (Quoted in R. Neustadt and E. May, Thinking in Time: The Uses of History for Decision-Makers, The Free Press, NY 1986, at p. 247-48.)

Those great words have a plain application to any and all who wield power and hold the trust of the people.  The people’s willingness to abide by the decisions of those in power depends absolutely on their trust that those who wield power are dedicated to upholding, not altering, the democratic nature of our government as well as our individual freedoms.  That certainly includes judges – it is my sincere hope that I and every judge in this nation  will understand “what [we] are about,” and that we will be wisely self- restrained in exercising the independence we are granted and keeping well the sacred trust we have been given.