Is There a Threat to Judicial Independence?

Participant judges recognized (almost universally) that there are threats to judicial independence, with 25 of the 27 judges agreeing that a threat existed, as demonstrated in table 2.Footnote ¹⁷ Explanations and additional information about the two judges who did not recognize a threat will be detailed later in the results section. Judges acknowledged the importance of judicial independence to the performance of the judiciary but noted that the barrage of threats to the institution by Congress in particular made it difficult to act as a coequal branch of the government. Further, judges posited that fostering judicial independence is a value that Congress shares with the judiciary, but only to the extent that the judiciary behaves in ways that Congress would support. Several judges elaborated on the nature of Congress’s wavering support of an independent judiciary, suggesting, as one chief district judge remarked, that “judicial independence is absolutely critical and vital to the continued health of the country. If you go back and study American history closely, the other branches, particularly the legislature, have always been nipping at the heels of the judiciary. They [Congress] don’t like the branch.”

Table 2.

Summary of Perceived Threats from the Legislature among Judges Interviewed (%)

Note.—Percentages rounded; may not sum to 100%. CIT = Court of International Trade.

Responses to this question directly addressed the tensions that tend to flare when the judiciary is perceived to do things that Congress would not support, with some respondents suggesting that judges would be better off if they modified their behavior to stave off threats. In the analysis of another district court judge, “I do think that there are constant threats to judicial independence. [Congress values it] in the abstract until they face rulings they disagree with, and then they want to rein in the judiciary. Judges need to be careful to not act in ways that invite these threats.”

But not all judges addressed this particular interbranch dynamic in this direct manner. If judges articulated that they believed there was a threat to the judiciary, we then asked what that threat looked like. This is a key facet of our inquiry. Since the above responses demonstrate that judges may have identified multiple threatening provisions (e.g., reactions by lawmakers to “rulings they disagree with” as well as proposals to impose, e.g., “term limits for judges”) as valid responses to our initial question, we have reason to expect that the judges could articulate threats across the range of potential responses as particularly concerning during subsequent questioning. And indeed, in our follow-up query, judges provided a rich picture of the many observable varieties of threats they perceived as the most worrisome. However, the judges focused quite clearly on legislative provisions regarding the formal structure of the judiciary as most worthy of their attention. As one judge remarked, “I do think there are threats to judicial independence. The proposals range from amending the Constitution to eliminating lifetime tenure—that’s [as] fundamental [a] threat as you can get.” In the following section, we explore the different types of observable threats with a discussion of what judges consider to be a threat as compared to what they explicitly mentioned was not a threat.

What Is Not a Threat to the Judiciary, and What Is a Threat?

In response to our request to articulate an example of a threat to the judiciary, several judges compared and contrasted their relative lack of concern about policy-heavy threats to their heightened concern about institution-focused provisions.Footnote ¹⁸ While the judges mentioned that blatant, policy-heavy attacks were something they were aware of, this type of threat only caused them concern when they were coupled with attempts to curb their institutional authority. One appellate judge detailed the nature of threats to the judiciary. In his response, he suggested that although overt, policy-heavy threats receive a lot of popular attention, the real threat to the judiciary is the deliberate chipping away at the institution by Congress: “I think that there are pressure points on the judiciary that didn’t exist before, and I don’t think they are going away any time soon…. Some of [the threats are] fairly overt, and dramatic. [But] some of it is ‘slow creep’—and the slow creep, I’m actually more concerned about this one…. If you get nibbled to death incrementally, you wake up one day and you find yourself in the circumstance that your institution’s independence has been eroded, and it becomes very difficult to push back.”

Judges talked specifically about how they were not concerned about threats from Congress that were only based in policy. Judges mentioned that they viewed this type of threat as part and parcel of the separation-of-powers relationship and that such threats were not particularly worrisome. According to an appellate judge, “We’ve had some cases in [particular policy] areas, where we’ve had specific court rulings overturned by the legislative branch. I view that as a natural part of the separation of powers.” Further, judges suggested that they are aware of how their work in certain policy areas might have the tendency to contradict the will of the other branches but that they did not see this policy tension as something worth addressing by changing their behavior. Rather, they suggested that the political process provided a set of proper remedies. According to another judge, “There were plenty of calls to impeach Earl Warren because of immigration, prisoners’ rights, etcetera.” While this was unsettling, what occurred was more mundane. “You know, what happened was Nixon ran for president on the law and order ticket, promising to reverse the course of the Court. And he appointed justices and that is how he changed the Court…. It is what the founders had in mind.”

Instead of being concerned about changes to policy they have set, judges expressed heightened anxiety about institutional impingements. Speaking in the broadest terms, judges viewed any additional institutional control by Congress of the judiciary as troublesome. According to many of the judges, the concern over congressional infringement is always salient, as there “are encroachments. There is always a bill.” For example, this judge continued, “there is a legislative idea to have an inspector general [and] there are also bills that say there must be cameras in the courtroom.” Further, judges viewed any type of institution-focused provision as damaging to the judiciary’s status as a coequal branch. One district court judge remarked that “any time you tell the judiciary, ‘you have to do it this way’—that is when you lose the specter of independence.” This judge then provided a clear example of an institutional threat—budget slashing—stating, “They don’t want to pay us.” Another judge went on to say that the judiciary’s “independence has been eroded because Congress imposes itself upon us” with its demand for cameras in the courtroom. “Congress,” the judge noted, “seems hell-bent on this…. The drama will be complicated and inflamed with a TV crew in your courtroom filming everything that happens.” The same judge defined other impositions as attempts to amend the Constitution, impose term limits, and institute judicial elections, among other institutional threats. In other words, judges are acutely aware of the threats to their institution lodged by Congress. In fact, their awareness is so acute that it extends far beyond the range of their immediate experience. Several judges who mentioned a fear of judicial salary reductions or budgetary constraints recalled the case of United States v. Will (1980), which occurred before a majority of those surveyed were on the bench, including those who mentioned the case.

In total, 23 of the 25 judges who saw threats to judicial independence primarily characterized the most threatening provisions as institutional, whereas only two talked with concern about threats arising through other means. The two judges who did not articulate concerns about judicial independence were both district court judges and were fairly new to the courts. In the view of one of these two judges, who was in his first year on the bench at the time of the interview, “I wouldn’t care if I did something that would be perceived as controversial. I guess my feeling is that judicial independence is probably pretty strong.”

Other than these judges, it is worth noting that the vast majority were cognizant of policy-heavy threats, but they nonetheless tended to focus on institutional ones as particularly concerning. This is exemplified in the views of one district court judge concerned that “congressmen and senators are weighing in on ‘how good’ SC [Supreme Court] decisions are. Like, Senator [Ted] Cruz saying lifetime tenure should be taken away based on something [Chief Justice John] Roberts said. The more that people drag the judicial branch into the political battles, it is going to undermine the credibility of the judicial branch.” In other words, this judge identified a policy basis for the legislature’s disagreement but then honed in on what he perceived to be an improper institutional response on the part of Senator Cruz. Judges seldom spoke with greater concern about policy-heavy threats in our conversations. One appellate judge’s perspective illustrated nicely the contrast between institutional threats and policy threats. The judge had a relatively benign view of the policy responses, acknowledging that judges “don’t have free range to do whatever…. If I make a decision that [a member] doesn’t agree with, [that member] could instead go up the stream and get the law changed.” But the judge indicated that institutional threats were serious threats to independence. “The biggest threat to the judicial independence today,” he said, “is an inspector general—who do they answer to and how is that done? Congress doesn’t have one, and the thought of this is a threat to independence, but I’m not sure it is going to come to fruition. The mere discussion of it makes judges nervous.”

Observable Court-Curbing Threats Are a Significant Concern

Almost every judge interviewed for this project mentioned at least one specific way that Congress limits the authority of the courts. Concerns over institutional authority ranged from threats to jurisdiction and decisional independence to those regarding judicial job security and control over the budget. Most importantly, no interviewee articulated a direct connection between her decisions (or the policy she has set) and Congress’s—or the public’s—disagreement with those decisions as worthy of her apprehension. To be clear, this does not forestall the possibility that such disagreement may prove to be a trigger for institutional threats, but rather it indicates that, absent an institutional threat, political or policy-based displeasure with the judiciary is not enough to significantly concern the judges we interviewed.Footnote ¹⁹ We detail below several observable types of threats the judges explicitly mentioned in the interviews. As summarized in table 2, institutional provisions aimed at limiting judicial autonomy, instituting retention elections or term limits, slashing judicial budgets, and inducing other forms of oversight were each mentioned by multiple interviewees.

Many judges expressed concern about oversight provisions that would diminish their ability to make decisions without fear of retribution. Within this category of threats, approximately one-third of the judges specifically mentioned the threat of a bill recommending the establishment of an inspector general of the judiciary (eight judges). Inspector general proposals, which are forwarded frequently, would greatly increase the accountability of the judiciary through oversight of the activities of judicial and other institutional actors within the branch. Judges view the creation of an inspector general as an overreach of congressional power. As one judge remarked, “The potential legislation setting up an Inspector General … presents serious separation of powers issues.” By eliminating the future discretion that judges may exercise, this proposal clearly limits judicial independence. Although many judges are not convinced that such a measure would be enacted, the mere discussion of this accountability mechanism worries judges, particularly because judges have internal accountability mechanisms that they believe are intrusive and rigorous enough. According to one appellate judge, “I had to leave [a] board…. There was a little aspect to do with fundraising. An abundance of caution led to me to leave the [board]. Judges can’t live lives like normal people, and this is a burden. The judiciary is scrupulous. The judiciary wants to avoid scandalous impropriety. [But] they don’t get credit for that on Capitol Hill.”

Judges who mentioned the threat of an inspector general also spoke about the nature of threats to the judiciary, suggesting that some threats are legitimate reactions to judicial decision making while others are not. This further highlights a tension between the dominant thread of scholarship on judicial independence, which sees policy-based responses as central, and the views of judges, who find policy-based responses as both expected and unproblematic congressional reactions. Judges think that there are certain actions Congress can take that are critical of the judiciary but within the legitimate realm of checks and balances, while other actions are damaging to the institution and are encroachments that extend past the legitimate scope of Congress’s power.

Judges also perceived direct threats to their discretion as illegitimate encroachments by Congress. For example, five judges recollected their concerns over the creation of the Federal Sentencing Guidelines, a uniform spreadsheet of sentencing standards meant to assist federal judges in meting out punishments to those convicted of committing felonies and serious misdemeanors. These guidelines, in other words, limited judicial discretion quite sharply. One district court judge connected the debate about the Sentencing Guidelines to contemporary concerns about the balance of power between the institutions, suggesting that “things like mandatory minimums were illustrations of how Congress can invade the province of the judiciary and really corrupt the decision making process.” Therefore, while the Sentencing Guidelines represent a complex mix of both institutional and policy-heavy threats to the courts, at least some judges perceive them as primarily a threat to their independent decision-making authority.

A final area of focus for the judges recalls work by Toma (Reference Toma1991). Judges viewed Congress’s control of the judiciary’s budget as damaging to the branch’s status as a coequal branch. Almost 40% of the judges interviewed spoke directly to these concerns (10 judges). In response to the politicization of the budgeting process, a district court judge said that limiting the budget of the judiciary “threaten[s] staffing and our ability to function … in other words, in order to do the work that needs to be done. Cases have to be done more quickly than judges feel they are able to give their finest efforts towards. Just the size of the docket and the resources available threaten our independence.” Another judge remarked that further structural constraints imposed by Congress “make it harder for [judges] to work.” Judges have to work within the restrictions that are imposed upon their institution by Congress and recognize that those structural and budgetary limitations strain the capacity of the judiciary.

Additionally, judges suggested that they were worried about congressional attempts to change the nature of their positions. While several interviewees (15%) expressed concern over threatened changes to judicial tenure, one district court judge provided an account that was particularly salient to our inquiry: “When the courts take actions that cancel out the political process … there are temptations amongst some in the political branches to do something about those courts that are out of control. There are discussions of term limits for judges, no more life tenure, [to] amend the constitution [so that] judges at the federal level need to be elected…. These are proposals that begin to erode independence. [Congress is] perfectly happy for us to be independent when we agree [with them]—but when we don’t, they look for ways to rein us in.” This comment is further demonstration of how judges articulate the nature of the relationship between the courts and Congress. When judges perceive that Congress is not pleased with their actions, the threats judges are most likely to communicate are to the institutional design features of the judiciary itself, as opposed to changes to the policy set by the judiciary. In the words of another district court judge, “We have a senator calling for the end of lifetime appointments. If people campaign to get rid of bedrock principles in the Constitution … it isn’t good for the overall system to suggest changing the judicial system itself.”

Alternative Perspectives

Although most interviewees agreed that judicial independence is threatened and that those threats come in a specific institutional form from Congress, a few judges had different ideas about the nature of threats—and two did not think that a threat exists at all. One judge suggested that judicial independence was most threatened by the media and its politicization of decisions made by the courts. This appellate judge expressed concern about the role of the media in delegitimizing the actions of courts by “[giving] an impression that everything [that happens in the judiciary] is political.” Another judge took this logic a step further, suggesting that members of Congress have the opportunity to shape the public’s view of the courts, which in turn could have negative effects for the judiciary in an institutional sense:

In this judge’s account, threats to public legitimacy may lead to institutional threats about which the judiciary is concerned. This view, while not articulated by any other judge, recalls Clark’s (Reference Clark2009, Reference Clark2011) perspective on the mechanisms that underlie court-curbing behavior by members of Congress.

Investigating Consequences for Judicial Behavior

A number of judges indicated that institution-focused threats caused them to adjust their behavior so as to forestall the most disquieting congressional attacks. Indeed, even though proposals that threaten the courts do not frequently become law, leading some to question their impact (Ross Reference Ross2002), judges indicate that they remain vigilant. Past instances in which the courts were successfully constrained by Congress (e.g., via the enactment of the Sentencing Guidelines) are still on the minds of many judges (see table 2). Judges may also view institution-focused provisions, regardless of their passage (e.g., the forwarding of inspector general proposals), as signals about other impending dangers that lie ahead, such as declining popular support for the judiciary (Clark Reference Clark2009).

One district court judge indicated the need for the judiciary to emphasize in its opinions the legitimacy of its actions to contend with these threats, stating, “We only have—to uphold our legitimacy—the power of our reasoning and what we say.” Not only does this view echo other research (e.g., Black et al. Reference Black2016) in its suggestion that judges aim to buttress the legitimacy of their opinions by adjusting the rhetoric they employ, but it also adds to this literature by identifying an additional impetus for this behavior: observable institutional threats from Congress. This same judge goes on to identify two additional steps that judges take in response to institutional threats by noting the need to demonstrate compliance with superior court instructions and obfuscate one’s own political views. One implication is that, to the extent judges are increasingly concerned about institution-focused threats, we may observe more opinions written in a way that highlights their legitimacy yet obscures their policy impact. A second judge also represented this view and suggested that if a judge were perceived as “overreaching” his authority, Congress could react negatively and impose institutional curtailments, like an inspector general. He advocated for judges to have awareness of their behavior (in and outside of the courtroom) in order to avoid congressional threats: “Judicial overreaching can endanger [the] judiciary…. Judges have to approach their work with humility, know the core of judicial independence, and act in a way that fosters legitimacy…. If judges act ethically, avoid public commenting, avoid conflicts of interest—those are things judges need to do. We have to be mindful of proposals [for] inspector generals. If they were to gain traction, they need to be enacted without institutional encroachment.”

Other judge interviews also indicated how concerns over institution-focused threats affect the behavior of courts. Institutional threats may be particularly disconcerting to judges relative to policy-based responses, given their views about how the political system should operate. In other words, the separation-of-powers system in the United States serves as a blueprint for actors within federal institutions, detailing the scope of their institution’s internal powers, as well as their range of checks on the power of the other branches. Additionally, this system, along with the past behaviors and normative expectations of the actors within it, provides judges with an understanding of what kinds of activities are considered to be proper or not.Footnote ²⁰ Most dramatically, one judge suggested that, under threat, courts might be forced to abandon their traditional function of safeguarding minority rights out of fear for legislative reprisal:

Similarly, another judge suggested that (although it may happen infrequently) judges consider altering their behavior in order to reach decisions that are “correct” in the eyes of legislators, saying, “[Whereas legislators] seek the right political answer … the courts cannot achieve that if they are doing their job correctly…. There is a temptation by many judges to reach correct political decisions, but it doesn’t happen as often as we think” (emphasis added).

In short, a number of judges indicated that institutional threats compelled them to adjust their behavior in a variety of ways. Because many judges evinced concern with what they perceive as an increase in congressional threats, our findings imply that judges may make greater use of strategies to buttress the bench’s legitimacy going forward. To take one prominent example from our interviews, it is possible that judges may increasingly use language that makes it less clear whether their actions run afoul of Congress, a behavior that has potential consequences for the judiciary’s ability to induce compliance (Stanton and Vanberg Reference Stanton2008). As such, our inquiry indicates that institutional threats do not need to pass into law to influence judicial behavior, given the high level of concern that federal judges evince over them.