Imagine that you are a (relatively) young Supreme Court Justice at 56 years old. You began your career fresh out of law school as a lawyer in Silicon Valley, becoming a rising star in the legal world, specializing in the intersection of tech law and privacy rights. Fourteen years ago, the President tapped you for the Supreme Court, a remarkable feat, owing to your dynamism, diligence, and expertise in tech law in an increasingly technologically interconnected world.
Being a Supreme Court Justice is the honor of your life, but the nature of the Court has radically changed since you graduated from Stanford Law, in ways that often trouble you. Right before you were appointed to the Supreme Court, Congress passed a sweeping amendment to the Constitution to radically reform the federal court system under the premise, as the then- Speaker of the House put it, “to make the courts more energetic and responsible.” The amendment was swiftly ratified by ¾ of the states. Now all federal judges, including those sitting on the Supreme Court, serve fifteen-year terms before needing to be reappointed by the president and the Senate. As one of the first new appointees after this amendment’s ratification, your term is about to expire. But you hope to serve several more decades on the court.
As the matter of reappointment is on your mind, a major case has arrived on the Supreme Court’s docket. Recently, the Department of Justice has sued a major tech corporation on the grounds that it has become an illegal monopoly. Originating as a remarkably efficient search engine, this corporation is a ubiquitous force in cyberspace, hosting billions of searches per day, to the point where they have extraordinary power over politics and the American economy.
After proceeding through the lower courts, the case arrives on your docket. After weeks of studying the facts and the law surrounding the case, you find the Department of Justice’s complaint correct: this tech corporation has used its power to aggressively buy out and merge with smaller corporations within its own industry until there are hardly any left. Your legal analysis leads to a clear conclusion: you must vote against the corporation and order it to dismantle itself.
But despite your conclusion, outside factors are impacting your judgment on how to rule. The President and the Senate Majority Leader, alongside many other prominent Senators, have a significant amount of stock in the corporation, whose value would collapse if it lost the case. As your reappointment depends on being in the good graces of the President and Senate, you worry that ruling against the corporation will mean your term won’t be re-upped.
You find yourself stuck in a troubling situation. You have always striven to consider the law solely based on how you interpret it. But now, you have substantial outside pressures pushing you to make a decision against your own conscience and your sworn oath. If you rule against the corporation, you are endangering the chances of being reappointed to the court for another term. At the same time, ruling against the corporation will seriously hurt your future career prospects practicing law privately – with your specialization in technology law, few major tech firms will hire you as an attorney knowing you played a role in dismantling this corporation.
With heavy regret, you rule in favor of the corporation, being the critical tie-breaker in a five-to-four decision. You had never considered the possibility that you could be compromised in this way. But you had never been put to the test when such important interests were at stake.
Now thankfully, the above scenario isn’t our reality. In America, the judicial branch is independent of the others and therefore, the justice in question wouldn’t have felt compelled to rule in a way that contradicted his legal analysis.
In our system, judges are not beholden to political leaders in either the legislative or executive branches; indeed, their isolation from the other branches increases the likelihood that they rule fairly and faithfully according to the law. It also means that the federal courts can play an important role in checking the other branches of government as well as state governments, preventing and punishing misbehavior and abuse. One obvious and important example of this is the Supreme Court case United States v. Nixon (1974), which ruled against President Richard Nixon, reminding the president that even he is not above the law.
The independence of the judiciary is ensured through a variety of measures. First, potential judges have to be nominated by the President and approved by two-thirds of the Senate, requiring a cross-party collaborative effort in most cases. Secondly, once appointed, the judge serves for life, usually outliving the Congress and presidential administration which appointed them. Thirdly, Congress is explicitly forbidden from modifying the salary of sitting judges, thus preventing the current government from punishing or rewarding justices for how they rule on the court.
Yet, we cannot take this judicial independence for granted. To be sure, the independence of the judiciary has never quite come under attack like in our story. But given how politicized the court has become in recent years, such a reality is not unforeseeable. Political leaders on both sides of the aisle have recognized the power of harnessing the courts to their political advantage. Some have even waited to fill federal court vacancies until their opponents are out of power, hoping for the chance to appoint a new judge to reflect the appointing party’s ideology. Others have proposed creating entirely new seats on the Court by “packing the courts”, as a way of gaining control of the Court’s majority. And the judiciary has also come under attack by politicians who have actually threatened federal judges, not only with impeachment but with threats of violence, in response to rulings judges have made.
What’s more, because of the hyper-partisanship of today’s politics, the types of judges nominated to the bench reflect the different parties’ ideology. This essentially means many Justices across the political spectrum will rule, not based on the law, but based on their partisan leanings. This functionally means that Congress and the President have imprinted their views on the Courts. This is not judicial independence.
So what’s the path forward? One solution is term limits, but unlike in our story where the possibility of reappointment degraded the Court’s independence, a viable plan wouldn’t allow for Justices to serve a second term. Term limits could make the nomination process less contentious because they reduce the weighty permanence of the appointment. But more important than amending the Constitution, perhaps the only way to address the threats to judicial independence is to reduce the partisanship in our politics. From meritless threats of impeachment to court-packing schemes, American citizens and political leaders need to stop politicizing the federal judiciary. No matter what structural protections it has, if the people want a dependent and politicized Court, that’s what they’re going to get.
Although the judiciary is a relatively overlooked and misunderstood aspect of our democratic system, it is an incredibly important part of our government. The independent courts serve a vital role in protecting American citizens against abuses of power by our political leaders through the affirmation of our rights as guaranteed by the United States Constitution and our code of laws. Without an independent judiciary, fair democracy would simply not be possible, and we would have no way of ensuring that our rights are protected.
