The Evolution of Judicial Independence in America

okay you've got me Mike this way in the middle ladies and gentlemen welcome to the National Constitution Center hey come on it's it's Monday morning and we're back in person and it is such it's so exciting to see you all here in Kirby theater friends let's begin as always by inspiring ourselves for the learning ahead by reciting together the national Constitution Center's mission statement here we go I know some of you know it by heart the national Constitution Center is the only institution in America chartered by Congress to increase awareness and understanding of the Constitution among the American people on a non-partisan basis excellent I knew you could do it um we're honored to be joined today by members of the Federal Judicial center that is the organization that brings together federal judges for uh learning and education and I'm so grateful to uh to our friends at the federal digital Center including John Cook and Clara alderman for this great collaboration we've done it for years and it's marvelous to start it up again and be back in person those of you who are Judges and visiting the national Constitution Center for the first time I'm excited to involve you in our important educational Mission we have a marvelous education effort across the country in person and online our honorary co-chairs justices Gorsuch and Justice Breyer um lead this and we have judges from around the country who engage with us to offer classes both live online using zoom and also videos and we've got an incredible new partnership with Khan Academy which is the online education provider to create a constitution 101 class for high school and middle school kids and it would be very exciting to involve you in those efforts so as you spend your day here think about ways that you might become involved and much looking forward to working with you in the urgently important effort of non-partisan civics education friends we've got three great panels this morning and we're going to begin with a dream team of madisonian Scholars both of them Brave the elements to be here and how exciting to be joined by uh Jack rakov and Mary builder for uh to talk about Madison and judicial review I just can't imagine um a better team to learn from and let me introduce them and then we'll Jump Right In Mary Sarah Builders Founders professor of law at Boston College Law School she's the author of three books including the definitive and wonderfully titled Madison's hand revising the Constitutional Convention the transatlantic Constitution Colonial legal culture and the Empire and most recently female genius Eliza Harriet and George Washington at the dawn of the Constitution and Jack rakov is William Robertson Co professor of history and American studies and professor of political science and law at Stanford he's the author of many definitive books as we well including the wonderfully titled and invaluable original meanings politics and ideas and the making of the Constitution also revolutionaries a new history of the invention of America and most recently beyond belief Beyond conscience the radical significance of the free exercise of religion uh Mary Sarah Builder and Jack rakov I've learned so much from you it's really a thrill to be able to talk together and we're here we have a big topic um and we're going to um shed some light on it and that's the question of question of judicial Independence at the founding and there are many places we could start but let's start with Madison because you've both written so powerfully about him and he'll ground things uh Jack raykoff you've talked about Madison's unique theory of judicial review which changed over time tell us about it how did Madison understand judicial Independence well Madison is first and foremost the thing about Madison is the framer of the Constitution so coming to griffs with what was I think the most creative period of his political thinking from roughly about December of 1785 down to the Constitutional Convention and then working his way through the ratification struggle and if if you want to conceptualize Madison's ideas of judicial Independence at that formative moment in the adoption of the Constitution I think you'd want to emphasize at least these points first Madison's thinking in general was driven by the belief that whichever institutional government represented the people most directly would be the most powerful and the most potent so they'd always meant at the stage level the lower House of Assembly in the with the new federal Congress the House of Representatives was the one institution you'd have to worry the most about and I think Madison's idea is about judicial power were driven by his concerns with the nature of political power in a modern Republic where the people themselves would be able to express their preferences and their beliefs and also their prejudices uh through through the political system so I think when Madison thought about judicial power at the time when the Constitution was adopted um I think his first concern and this this should sound something strange to a modern audience uh was that most lawmakers would be amateurs uh they would come and go they would not be veteran legislators they would not have much experience they would not really know how to draft statutes and so when Madison started setting up his agenda for Philadelphia he drew up on a curious provision in the New York State Constitution which it created what was called a council revision which consisted of uh the governor who was properly elected and you know some some set of members a couple members of his Council then some members of the New York state supreme court and he wanted and he wanted his body to have a limited veto a limited negative on legislation uh meaning that as well legislation was pending a joint executive judicial Council would be able to review it uh and his concern here was if you start with the Assumption which actually which is empirically was was was really quite a quite a valid assumption that most lawmakers would be amateurs he felt there would be a net Improvement in the quality of legislation if you involved judges early in the proceedings rather than wait for cases to arise under you know under the ordinary rules of jurisprudence so the cases with constitutional implications would come to them in due course somewhere down the road as controversies arose Madison County trade-off Theory it's I think if if we want to think broadly and deeply about the about some initial understanding of his initial conception of judicial Independence beta series says was plaguing someone fast and loose release was playing somewhat liberally uh with the ideas of judicial Independence that uh the the framers had inherited um you know both from you know certain principles of the British constitution in the 18th century and also from the reading of Montesquieu and particularly his chapters uh in the spirit of the laws which discussed the British constitution um so what I think what Madison wanted to do was to kind of improve the quality was to involve judges in the actual business of legislating in an advisory capacity Plus AB initio from the beginning in the hope that you'd preempt or kind of reduce the number of problems you might encounter uh later on uh and he presented this uh proposal at the convention it was discussed quite vigorously on a couple occasions it had strong support from James Wilson uh you know Pennsylvania to some Providence who was also a member of the first supreme court uh under chief chief justice John Jay uh eventually the measure Was Defeated as we all know but the comments that are quite interesting because what the comments demonstrate is that the critics of The Proposal said this is this would actually ask judges to act in an improper capacity and that the the best the best occasion for judges to determine uh on the basis the Independence that article 3 would eventually give him uh whether laws were Constitution or not would come to them when cases in cases and controversies properly presented the right set of facts for their for their review now there's the strongest statements we have about whether or not the idea of judicial Federal judicial review of of the constitutionality of both federal and state legislation was part of the original understanding original intentions of 1787-1788 really come out of the debate over Madison's Council so Madison's Council shows that he was willing to modify in kind of curious ways the idea of strict traditional Independence as being wholly separate from the legislative process on the one hand and then the response to it indicates uh that uh you know other framers the Constitution felt uh the whole purpose of judicial Independence would be to lay a foundation for the doctrine we eventually came to college judicial review so interesting um Mary Sarah so Jack breakoff has put on the table the centrality of this Council of revision um when Madison thought about the Council of revision and about judicial review uh did he see judges as enforcing separation of powers limits or federalism limitations or the Bill of Rights or all of those and did his views change in your book Madison's hand you say he didn't talk much about judicial review at the convention but what precisely what kind of review did he see judges as exercising and how did that change yeah I mean I think Jack makes such a great point about how um you know if we take the term judicial Independence we have to figure out who what do we mean by judges what's their role in the Constitution as a system of government and then what does it mean to be independent um who are you independent from and I think what's so interesting about this period is that a set of ideas that had been established in the Constitutional history of Great Britain about what judicial Independence means um has to be completely re-thought because in Great Britain a long tradition through the 1600s and 1700s involved the idea of independence of Judges but judges aren't separated so they don't have a separated function and they understand Independence um to be very much independent from the King and there's a lot of the stories of um the Constitutional battles in the 1600s around the Revolution and then re-understood in the 1760s when George um III comes to power involve key moments where judges are are not independent and what they mean by that is that judges before um the English Revolution before the um uh sort of the 1701 active settlement served at the will of the king at the king's pleasure and so there's a great battle over the 1600s and um about the idea of Judges beginning to serve on good behavior or as long as they behave and and that's one giant enormous battle um that they have and then in the um 18th century that obviously for the American colonists is a huge battle their judges don't sit basically with good behavior tenure and also their judges are controlled by salary by the crown and so those two elements which we don't think of we tend to think of this question in terms of checks and balances separation of power judicial review but that's not how they're thinking about it the two key Provisions for them are do you have a good behavior tenure and who's paying your salary and can it be reduced and those are the two complaints in the Declaration of Independence about the judges are the judges have been made to be at the will of the crown because they don't have good behavior tenures and they serve um and their salaries can be changed and in that sense if we think about the framing Madison's just he's just not sorry he's just not that interested in the Judiciary he thinks the Council of revision will pick up a big part of um the job with respect to what we would think of of review of congressional legislation and he assumes that the negative Congress will review state legislation and he actually complains to Jefferson at the end of the convention that one of the biggest problems with the Constitution is the loss of this Congressional review of State legislation which is what the privy Council had done in the colonies and and but what they do build into article 3 which is very under imagined is those two key Provisions that judges are going to serve um uh on good behavior which we come to construe as lifetime tenure and their salaries can't be reduced in office and the idea there is therefore judges are going to be independent but in the world where what you're being independent of the crown that's one understanding of Independence what does it mean to be independent when power lies in the people and that of course is the whole problem is is when power lies in the people when you understand the Constitution to be the will of the people when you understand all the branches to be at the will of the people who are you independent of becomes a much more complicated problem and I think that um a lot of the early period is trying to work out what does this tradition of judicial Independence look like now that Authority is in the people as opposed to the crap where it's we're sort of easy you're either with the crown or you're against the crown that's so interesting and framing it that way seems exactly right and Hamilton says in in federal 78 a conflict between the statute representing the will of the legislatures and the Constitution representing the will of the people the judges prefer the principal to the agent but who's the people so Jack you say that the central battles over judicial Independence during the martial Court weren't focused on Marbury but on McCullough and on the interests and the uh on the um scope of congressional power and if you interpret congressional power broadly as Hamilton does that has a totally different uh vision of the role of Judges than if you interpret it narrowly as Jefferson did so tell us about the debates between Hamilton on the one hand in Jefferson and Madison on the other about judicial Independence during the Marshall Court that's a tall order um that's why you're here I'm really eager let me let me back on slightly so Mary you know for you know if you haven't read the history as deeply to be honest is the two of us yeah but pretty much in a daily weekly basis so one of NASA's key proposals in 1787 was would have been to give Congress uh we would say a veto but the preferred term a negative on state laws and um that measure was so the convention continue to discuss it almost down at the end the measure was eventually killed in mid-july right after the the critical vote on giving each giving each state an equal vote in the Senate and in its place we we see the first appearance of the supremacy clause which for all intents and purposes does create judicial review uh imposing it explicitly on judges at the state level and I think most Scholars assume implicitly assuming that well it has to be applied directly to judges and state level because you can't be 100 sure of their conference in the sense about their their obligations implicitly of course federal judges are you know are are going to have the same power the question arises so one if you assume that a concept of just review was either implicitly or explicitly involved in the supremacy clause and and in other discussions uh against whom is it most likely to be directed so everyone who's going to let's go and you know for all the distinguished brethren in the audience here I'm sure you know most of you were taught this at the time you know the idea that Marbury versus Madison is the decisive case in terms of quote unquote establishing this is the Alexander Bickel's language and his famous book the least dangerous branch in terms of establishing the doctrine juice review has become kind of out of a shiploth or a kind of you know uh you know a a high statement of judicial Theory what I've always argued is the story and because I am actually met a Sony not just in terms of my interest but really in terms of My Philosophy is that Madison's analysis says that the the most serious problems of maintaining uh in the Federal Constitution are going to rise not in controversies between Congress and the federal courts it's going to be about really the problem of what's going to go on at the state level where what happens if you have MS anticipates a kind of McCullough versus Maryland kind of situation in which states are going to act somehow in defiance and some major Act of some some major Act of federal legislation so the way I teach them by Stanford undergraduates and you know but a healthy one will mind if I take the celebrity with you as well is to say if you had a choice when you're asking which of these two cases is a better uh indicator of of the main purpose of juice review and I think it's actually I think this Echoes Justice Holmes uh as well that you know whether or not the court the Supreme Court or federal course in general at the power over with Congress that's the secondary you know consideration they don't have the power to overrule the state courts then we're in big trouble and so I think if you have a choice between Marbury which is 1803 and McCulloch which is 1819. 1819 is is the more important case and it's more consistent with Madison's Theory which I think is remains today I think remains extremely powerful indeed accurate Theory uh that the real problem is what you do about misbehavior probably wanted to find that uh at uh at the same level now I just had one footnote here when by by the time we got to 1819 which of course is 40 years after the uh excuse me 30 years after the Constitution has been uh ratified medicine is much more sympathetic to judicial power and to its importance 30 years later than he had been as Mary was suggesting uh at the time the Constitution was written what he remains nervous about in Jeff this will tie into your questions he doesn't mind the holding in uh uh McCullough in in the abstract but he doesn't like uh Marshall's Reliance on the broad hamiltonian reading of the necessary and proper clause uh because in Madison by Madison's way of analysis both going back to the late 1780s early 1791 the famous debate over the bank uh if Madison's main concern was to how do you get the legislature to try to limit itself to teach the legislature the necessary and proper clause is is wide open uh is really is essentially an invitation of legislative with as much discretion uh as as you want to exercise dad would run against Madison's underlying concern that the legislative power remained the most dangerous element or what he called the impetuous vortex in the Federalist 48 the impetuous vortex in the legislature remained the most serious source of constitutional imbalance so he I think he was amenable to the holding in the public in general but he didn't like Marshall's reasoning because Marshall was over yeah was a full-blown hamiltonian you know in 17 uh in 1819 as he's been pretty much in 1789 uh and he didn't want he didn't want that kind of broad hamiltonian reading of necessary and proper to prevail fascinating can you can I ask you married to say more about the difference between Hamilton Madison and Jefferson Jefferson and Madison unlike Hamilton won a Bill of Rights and Jefferson says the courts will enforce it and then and yet in the martial era Jefferson ends up siding with Spencer Rohn about the most radical questioning of judicial power to revisit State Court decisions but my broad question is were Madison and Hamilton and uh Jefferson being opportunistic and and basically shifting their views about traditional review based on whether they like the results or did they have a different vision of What kinds of Rights judges should enforce I mean I I think and I'm gonna throw John Adams in because I think um Adams when you talk about the Judiciary is uh such an important person he's not at the um at the convention but his book defense of the um constitutions was serialized in the paper that summer and he's very influential in the way that the three articles get written and so I think if you if you think about what happens in the period between um let's say 1787 1789 and up through if you take to 18 20 so that's a it was almost a 50-year period and um uh one of the things that happens is is is the Judiciary um begins to figure out what should its role be because again coming back to article 3 which is the smallest article and and you know article one Congress has lots of specifics in it article two about the executive has more has quite a few specifics article three doesn't have a lot of specifics it just says there's one supreme court and um and so a lot of what happens in this period is everybody's trying to sort out what should the Judiciary do particularly what should the Judiciary do the federal Judiciary do with respect to the right rest of the Constitutional system and if you think about um Federalist uh 78 Hamilton's view on that one of the things that I think is really interesting is if you read Federalist 78 very carefully Hamilton says um the Judiciary is not going to be that dangerous for the political rights in the Constitution and I think what he means by that is some sense of the political aspects that were written into the Constitution things like habeas corpus uh no titles of nobility these kind of classic British constitutional rights and then he goes on to say there's other things then he uses the word independent that an independent Judiciary can do and this is where I think he does tie a little bit to the concerns that Madison has because he says um the people or legislation can go through too fast um it can kind of be a product of a moment or they're often worried about sort of partisan conniving demagogues pushing legislation through and one of the things that the Judiciary can do is almost like slow that down and so that's one of the things he says in federal 78 is the Judiciary can sort of help balance the um impulsiveness of legislation and Denise goes on to say another problem with legislation and again I think he's thinking at the federal level but also at the state level is that legislation can be overly severe with respect to private individuals and one of the things the Judiciary can do is help mitigate that severity and he says it's the Judiciary sort of um slows things down mitigates the severity pulls things in that will actually in turn encourage legislation to be more careful and more specific and so in some ways he's seen it as a sort of back and forth in what Adams would have assumed was the more more important thing is sort of checks and balance kind of of way and so I think that one of the interesting things if we think about that aspect of you know this topic of judicial Independence what what sort of the role of Judges is the Supreme Court justices in this period are trying to figure out what does it look like for their role and um under the first Judiciary Act there are no Circuit Court judges there's only district court judges and the Supreme Court judges there are six of them my students are always like how did that work I'm a big fan of an even number of justices on the Supreme Court but um because you don't have a like majority rule situation but um but but they're trying to figure out what does it mean to be a judge and one of the things they begin to do over this period is try and and focus on how does judging look different than ordinary politics and so a lot of what they do in this period that begins to establish this idea of judicial Penance is they turn work down so you know can you give advisory opinions no you can't give advisory opinions how about you solve all the problems of who gets pensions no we're not going to do that you know like literally the beginning of the court is like yeah no we're not doing that we're not doing that we're not doing that and that also we're not going to do and Washington keeps speaking of like how about you guys do this no we're not going to do that um and but what they do do in that space and Marshall's a very important aspect of this is they begin to develop this idea that that judging is its own important task and it's its own important task in thinking about what it means to be judges for the people interpreting a people's Constitution but even in this period um judging Federal the federal Judiciary looks very different than we do today because I think today if we think about what being an independent Judiciary looks like we often think of the Supreme Court and we think of the Supreme Court's big building but they don't have that building until the 20th century right I mean that building is a product of um when you get a president who decides to be a Supreme Court Justice and then decides wait well how come on we don't have a building the Judiciary is embedded in some ways inside Congress so all through the um 19th century the Judiciary is sitting the federal Judiciary the Supreme Court is sitting inside of Congress and so there's a way in which our understanding of this very clear separation is I think much more a product of the 20th century than it is in this early period and that's why I think sort of um they assume there will be judicial review Powers everybody gets that there's judicial Revenue Powers the um the privy Council had always um uh bounded what the colonial legislatures and Colonial courts could do but what that means in a world where everybody every branch is claiming to be interpreting on the side of the people feels different and so what happens for the federal Judiciary that's just incredibly difficult is trying to figure out how do you not become the king in the room right how do you not insist that we're just doing this and we're really the ultimate will but how do you work in a checked way to interpret the will of the people how do you make judicial review be meaningful in terms of um uh protecting the rights of the people in the Constitution and forcing limits on the Constitution without becoming a new kind of king without insisting that you're the ultimate and only decision makers and I think that's the Great problem for the Judiciary throughout this whole period just about at one point of this and this may seem a little Anonymous to the audience but I think one way to buttress or you know deep in uh Mary's point is to say that the question of who are the real decision makers within the Judiciary Branch coming out of the Revolution period are they judges or is it actually the jury I mean if you go back to John Adams in the 1760s uh you know I quote him at some point in nowhere in my work says you know jury should be perfectly competent to decide matters of law in fact alike and so I think when you start having uh the Supreme Court Justices writing circuit you know you know from the start um often they give addresses to the grand juries uh you know who are supposed to be you know you know pursuing whatever Chargers are going to be brought under federal law that's an effort to kind of bring the jurors up to the the emerging judiciary's own level of expertise and knowledge but it also says they see they have a obligation or involves an opportunity to kind of start playing a much more creative directive role in terms of in in terms of everyone so how the Judiciary defined itself uh institutionally in a period where the tradition of thinking juries were competent to decide both matters of the law in fact Mike is another one of those kind of mysterious historical changes which may seem somewhat obscure or kind of had to query it today but which 18th century Scholars like they look like married you have to have to worry about acting you've both identified a shared concern among Adams and Hamilton on the one hand and Jefferson Madison with faction and with separation of powers and maintaining those boundaries and I want to ask was there a partisan violence to conceptions of the Judiciary the founding on the one hand the the Federalists under Hamilton favor broad congressional power and loose construction and fear the mob and the jeffersonians want strict construction and constrained power and fear aristocracy did that affect their vision of what judges should do or not well I'm just I mean I think one of the things you know when you talk about independent of independence of the judges and you think about what that meant in the um British constitutional system it it was understood to be a political question and it what they meant by that was it was understood to be what independent judges did was they um they stood up to the king and so I'm working on a biography of the great constitutional historian uh Catherine McCauley and she tells a story that was widely reproduced and was very influential on John Adams and and he writes a long set of newspaper editorials about judicial Independence and there's a very famous case involving ship money the king sort of like I'm going to tax everybody and it goes to the court can the king tax everybody instead of parliament that's the short version and um seven judges say yes and five judges say no and there's a very key judge a George Crook and George crook according to the histories and Macaulay and what Adams and the founders read said uh I'm scared of The King and I don't want the king mad at me and I don't want my salary cut and so I'm going to vote in favor of the king side and George Crook's wife goes to him and says I don't care about poverty I don't care about Misery you should do the honorable thing and so he votes for against the king and then at the time of the English Revolution all the judges who voted for the king were impeached and this becomes a key story about what it means to be what judicial Independence looks like and what that story comes down um as is a story about what does it mean to stand up to sort of um political partisan power that is against the people and that's the narrative that really comes down and so when you think about you know is it the jeffersonians or the animals right the the tension there is once you develop a political system that the framers didn't anticipate which has established political parties and you amend the Constitution with the 12th Amendment to institutionalize those political parties into the election system that's what the 12th Amendment does uh is it basically makes sure that that having a political party is the way to gain power then this question of how does the Judiciary fit into the very um in some ways globally unusual two-party American political system becomes very complicated before the 12th Amendment it's not that there aren't you know you know there aren't parties going back and forth but but it doesn't necessarily look like they're going to be institutionalized forever and then I think that's a really hard question for the Judiciary uh and for what it means to be nonpartisan is once you have a very strong two-party system where does the Judiciary fit in math I think I think I would add to Mary's point and maybe shift it a bit by saying I to my wife think the the critical moment historically comes between um the passage the alien Sedition Acts in 1798 and then Marbury versus Madison not for its own sake but just as as an outcome of that struggle in 1803 and the reason I say that is it's wonderful for those seriously in history there's a wonderful book by a guy named Wendell bird called criminal descent which is uh part of a series of books he's doing on the act of prosecution of the Sedition cases you know at the very end of the 1790s during the so-called quasi war with France where the the amount of collaboration one could say collusion uh between Secretary of State Timothy Pickering who was the main player here in the administration and some of the federal judges LED I think by Samuel Chase who's also you know from Maryland as a supreme court uh justice in terms of uh arbitrarily Prosecuting their Republican meeting Jeffersonian madisonian opponents on the one hand and protecting Federal let's add the other even when they say things critical of John Adams as president uh be you know becomes quite significant so there's there is a deeply partisan moment uh at the very end of the 1790s where the question actually thinking politically of the relationship between Judiciary and uh the executive is becoming problematic it was becoming particularly his Republicans at Jefferson Madison and their supporters he is becoming quite problematic that's on the background demarbri versus Madison because then you get the judicial Act of 18 1801 which you know most historians still see I think correctly as as a kind of final effort by the Federalists to lock them to to retain uh uh influence or potentially control over the one institution that they can still dominate um you know through the deployment of the so-called Midnight Judges and you know the kind of last minute Judiciary Act of 1801. the part is about to go out of power but they want to lock themselves into at least give themselves some deeply entrened stake and now national government uh you know through the Judiciary I mean that's not the political background to Margaret so Marbury becomes an interesting case not not not I think because of its great doctrinal significance not because of the way it's still taught at many law schools but as a consequence and an illustration of you know how deeply entrenched and of course it's I mean the partisan relationship was it is also worth going back and saying in 1789 when Washington starts um you know making nominations for you know both the Supreme Court and the federal district courts the question of loyalty to the new regime uh became a major factor that's to say you would expect you know the preponderance of judges appointed nominated and confirmed in 1789 1790 uh to be you know Federalist partisans in the sense of you know enthusiasts and borders of ramification of the Constitution uh the problem that arises then is is one political party start forming in the middle seriously the middle in the mid 1790s you know then the death of partisan passion is ratcheted up and and the question of what does independence mean when the when the partisan forces are running so strong you know now I shouldn't go too far of this but it's not in some ways it's not in like the situation we're confronting today fascinating well we've worked our way up to Marbury and married um do you agree with Jack this is the time when all the partisan forces you've mentioned are coming to A uh head the Alien and Sedition Acts prompt the impeachment of Justice Chase and the effort to change the size of the court and how would you see Marbury what was the assertion of judicial review controversial or not and uh to what degree did it uh presence our current battles yeah no I I think the I mean I think the sort of current scholarship here is is pretty clear that um everybody assumes there's judicial review nobody's interested in that part of the opinion and um and in some ways that's not even really what Marshall's talking about the part of the opinion that um at the time is very dramatic and controversial is the notion that um there are aspects of the executive branch power that are not completely political and partisan that there's parts of the government that have to run regardless of which political party so to speak are in power and there's there's sort of some things that you get to do when because it's your party but then there's a whole lot of other stuff that is sort of part of the fabric of the way the Constitution runs and Marshall is very clear that that you have to insist on this and then and then the part that's the judicial review piece you know that sort of part of the opinion if you go back and read that one of the things that Marshall says over and over again then is we have a con a written Constitution and what he means by that is we have a form of government that is written down on paper and there's something about that that changes the way that we have traditionally understood government to work and and that puts the Judiciary in a new role and he's sort of almost in some ways you know he doesn't know he's going to be on the court at that point as long as he is but there's ways in which what you can really understand the very long period of Marshall's tenure to be about is sort of working out what does it mean to be a branch of the government interpreting a written form of government and be respectful of the fact that there are other branches but also understand yourself in some way to be representing the people ultimately and and you know I don't I think Marshall very much understands that position one of the things that um a sort of curious note in terms of the of the pieces you know Marshall gets the position but one of the people that Washington had wanted to give the Chief Justice ship to was Patrick Henry and Patrick Henry turns it down he's older he doesn't want to do it but there's a way in which he's lazy yeah he's I'm going to give him credit for being sort of done there been there done that gonna gonna be quiet and retire but um but but that tells us something about how certainly during Washington's time the question was were you favoring a sort of um broad um constitutional forward-leaning understanding of the government and he actually sees Henry who had been you know the great Anti-Federalist as at that point willing willing to do that and then by the time you get to the Marshall years and you get the development of two political parties then it becomes harder to imagine putting the other political party um uh you know on the bench but so I think Marbury is just incredibly important as the sort of Turning Point moment but not because it announces something completely new so interesting uh time for closing thoughts in this wonderful discussion I hear both of you saying Jack sum up if you can what was agreed and what wasn't agreed about judicial Independence that's the founding I hear you say that there were 30 seconds you can do it I know that's why you come all the way from California well I just flew in from the coast and I'm flying back this afternoon yeah uh it's a tough one Jeff I mean I think I think I would Echo the point that that Mary just made that uh there's just really Keith whittington's one of his books on who's a prince very distinguished scholar Princeton on this uh I think the novelty of the acceptance that the constitution was law not just in the new American sense and term that's as a supreme fundamental law which regulates everything government could do thereafter under directions but it was also law in a more conventional sense the document was there it had to be interpreted you had to know you had to develop rules for its interpretation uh that became the foundation for the development of a distinctively American conception of the judicial function um I happen to think and you know this uh this has been my last provocation that it's helpful for us to think and very much disagree with this I'm not sure I'm based on what you said about mcqually but it seems to be the idea of constitutional law per se is an American invention the term would not have meant anything certainly before it said perhaps before 1776 but almost early before 1787 1789 there are constitutional Norms the judges could have came in the British tradition the judges could occasionally invoke but the idea of having the Constitution's attacks against which other attacks would be read interpreted the other things to me is a major American innovation and departure and and if you go back and read Federal 78 as the first mature statement of a theory of the judicial function the real purpose of federal 70-day the federal 78 is not to justify judicial review it's really to justify the idea of an independent Judiciary and judicial view becomes the byproduct or the consequence of that argument I mean the larger part of the essay is really discussion of judicial Independence per se judicial view is an illustration of what that of of what that concept of Independence is you know may come to me Last Words uh to you what was agreed and what was not a great about judicial Independence yeah I mean I think I think what was agreed at the federal level was what's in the Constitution pretty minimal requirements um but on good behavior lifetime tenure friends and um your salaries can't be reduced in office and then everything else was a little bit up for grabs and I think in that sense Jack's point about the sort of one of the things the court will do the federal courts will do over time is develop a body around interpreting this new written instrument the Constitution and that's very new we will come to be known as constitutional law but that type of a sort of separated law doesn't exist in the British tradition uh and that's a very important thing and how one understands that changing over time becomes a very important thing and Hamilton in some ways in federal 78 pre-figures this because the very last thing he says about why should you have an independent Judiciary is he he says basically that's going to be really hard and and it's going to involve reading lots of stuff and and precedence and he said the precedence over time and the sort of history of the own interpretation of this will become more and more complicated and it will require people to sort of be willing to devote a lot of study and time to this and that's in part why we give judges sort of Lifetime tenure is to is to be super thoughtful and careful about what it means to be interpreting a constitution on behalf of the people for Illuminating our understanding of judicial Independence the founding please join me in thanking Jack rickoff and Mary Sarah Builder wonderful excellent thank you and we're going to move right into our next panel and uh let me go get our powers friends it is a pleasure to introduce our next panel to discuss judicial Independence in the 20th century and I will introduce them uh uh in alphabetical order Neil Devins is Sandra Day O'Connor professor of Law and professor of government and William and Mary Law School he's the author of shaping constitutional values elected government the Supreme Court and the abortion debate and other important books including the Democratic Constitution and most recently the company they keep how partisan divisions came to the Supreme Court Allison or Larson is the Ang research Professor associate Dean for research and faculty development and Alfred W and Mary i w Lee professor of law at William Mary where she directs the wonderful Institute for the Bill of Rights law and Marinette Levy is Professor of law Duke Law where she serves as director of Duke's program in public law she's co-author of federal standards of review Appellate Court review of District Court decisions and agency actions and the forthcoming written and Unwritten the rules practices and internal operations of the United States court of appeals welcome uh friends we're going to jump to the 20th century you've just heard this marvelous discussion of judicial Independence at the founding and I I'd love to begin with some broad Reflections from you about how we got to the 20th and 21st century uh we began at a time when the party system was just up and running and so little was agreed as we just heard from our panelists about uh judicial review uh to a world where uh judicial appointments are so entrenched in partisan politics and polarization pervades all the branches of government maybe why don't we begin with um and what are your Reflections about how we got here um well first I just want to say such a privilege to get to be here with this group today so so it's a great question right how do we get to this point today and how do we think about judicial Independence the way that we do now in the kind of robust sense I think there are a few different stories that are worth telling and I'm going to focus just briefly on two of them so the first thing I think to appreciate that that we might Overlook from the modern day is just how much the courts grew up over this time right I mean truly we saw the expansion of the courts from 1789 to today so I'll just say a word about that but then also this key part about how the courts came to govern themselves and really administer themselves I think that's happening in the background of all these other big moments that we think about like with the court packing plant so I'll just say quick word on those two so something I always like to go back and think about is in 1789 you know we have fewer than 20 article 3 judgeships this is the federal Judiciary as we think of it with such a small institution at the time right fast forward to 1900 it's only a little more than a hundred judges of course by the time you hit the end of that Century we're up to 850 article 3 judges right so that's the major expansion of the federal courts right again this really becomes a robust institution during this time and with that it has real administrative needs and this is the other key part of the story that I think is worth emphasizing so if we go back again to the beginning of the federal courts the administrative piece of it was actually housed in the executive branch so um it was actually the Department of Treasury that was tasked with dealing with the kind of financials of the courts this then gets passed over to the Department of the interior for a bit of time and then by the time we get to 1870 this is when we get the Department of Justice again this will feel surprising to Modern years it's the Department of Justice that's the principal administrative Agency for the federal courts right for decades and decades to come so what this means is that it's actually doj that's tasked with preparing the budget for the federal courts right they're the ones that are keeping the statistics for the courts um like what is the workload and all that sort of thing it's housed within the executive and what this ends up doing by the time we hit the 20th century is it creates these sites of tension between the branches so just a couple quick kind of fun points on that so in 1934 right we have the Great Depression and we actually then have the Attorney General turning to the courts and saying I'm ordering a 25 cut in your budget right which is a shocking thing to think about today right if the Attorney General of the United States told the judges in this room I'm cutting your expenditures by 25 right so again we have this really interesting contest between the branches and at the same time we have Congress coming in and saying we're actually going to cut the pay of senior judges by 15 right this is all part of the kind of cost saving measures now that's something that the Supreme Court then ends up pushing back on and rejecting in a case called booth in 1934. so this is all to say though that we see these tensions between the branches and it becomes clear I think for the federal Judiciary for it to assert real independence from the other branches it needs to be taking the administration of the courts in-house so we we actually see a little glimmer of this in the 1937 Court packing plan of all places so I think this is an overlooked provision of FDR's plan that they were going to create an office called Proctor who was going to be in charge of collecting statistics about the Courtside pulling that administrative piece from the executive over to the judicial branch so of course that doesn't work out but within a couple years instead what we get is a working group created by the Chief Justice of the United States Charles Evans Hughes who brings together several of what we would call today Chief Judges from around the country working with Representatives at doj and the ABA and they come up with a proposal to create what then became the administrative office of the U.S courts which came online in 1939. so I think a really big part of the story that we can talk about is how today we see the judges pushing back and saying we get to mind our own shop but there really is this important story about that shop kind of coming into formation during this time and that allows the Judiciary to stand apart it doesn't have to then go through the executive to really be kind of an equal branch in all of this such important reminders about the internal administrative reforms essential to the story and how memorable to think of the office of Proctor which was thankfully resistant which is great uh Neil Devins how did we get here well when we look at where we are today the Reagan presidency is so critical in the story before Ronald Reagan was elected presidents did not think about ideology when appointing judges and justices Dwight Eisenhower of course appointed Brennan and Warren for political gain uh to reward War for his help in California Truman gave judgeships to personal friends often conservatives before Reagan there was no ideological divide between Democrats and Republicans Democrats occupied every Niche on the Spectrum there were Southern Democrats Republicans occupied every Niche on the ideological spectrum they were Rockefeller Republicans George Wallace when he ran for president said I'm running for president because there's not a dime's worth of difference between the Republicans and the Democrats Reagan is elected in 1980 and he runs in an effort to make ideology relevant he makes ideology relevant in judicial selections working with attorney general Meese there's a focus on identifying conservatives at the time that Reagan is President there isn't a well-established conservative legal Network like there is today and we can talk about that later I hope uh but at that time there's an effort to find conservatives there's an effort to get young people in part through the federal Society into the justice department to be credential to become judges later in time but an understanding where we are today the key moment is Reagan and the shift to ideology and judicial appointments and the shift to separating Democrats and Republicans along ideological lines uh thanks so much um maybe a thought on that provocative point do you agree that that the ideology became relevant in the 20th century only in the 80s and you know what about the Progressive Era when Wilson chose Brandeis and FDR of course chose his justices um and and how would you say we got here there's a lot in there um I I definitely agree with Neil that like the the 80s marked a change in terms of the politics of judicial appointments and I think that's part of the story of judicial Independence because at least in the eye of the public you're only independent from politics if you act like it and that goes into sort of what I was going to say about the importance of norms of judicial Independence so a lot of the story of how we got to where we are today it's not there's no change in article three there there was no change not not a dramatic change in this the statutes that uh touched on the Judiciary it's about Norms of what is out of bounds and what is not out of bounds in terms of political repercussions to judicial decisions and that's important because I think it shows the fragility the fragility of judicial Independence because if it's really about bipartisan Norms of how we leave the judges alone then if those Norms erode I mean I don't have to I don't have to paint the ugly story for you but that's that is a real danger to judicial Independence and if you'll allow me a brief anecdote which I borrowed from my friend Tara Grove who's going to be here tomorrow um when Newt Gingrich ran for president in 2011 this is 2011. part of his platform included a proposal to abolish the ninth circuit because they were out of step with mainstream America and that proposal was met with bipartisan criticism what you can't do that like that that would be totally crazy and a real invasion of judicial Independence his answer was you know if you read article 3 Congress has a lot of power to you know ordain and establish the lower courts that includes he said getting rid of courts that are no longer necessary the reason that we think that's out of bounds has it has everything to do with bipartisan norms and assumptions so that means it's incumbent upon us I think in order to protect judicial Independence to bolster those Norms so that's I think important part of the story fascinating well if we pull back uh from the 20th century to today um at the dawn of the 20th century we had Gilded Age judges striking down Progressive economic legislation and democratic presidents from Wilson to FDR pledged to change the court so judges upheld that legislation and and that succeeded of course and came to a head in the New Deal and for a while judges upheld the legislation and then as as Neil Devon said President Reagan came and pledged to appoint strict instructionist judges who would reinstate limits on federal power that had been dormant since the New Deal and and that leads to the current situation um uh Marilyn Levy what do you think about that as a just description of what happened and tell us about the role of the administrative reforms that you mentioned as part of this story because it was in the 20s the Chief Justice Taft built the judicial conference and created the administrative apparatus that made a strong and powerful Judiciary possible and I know you've been studying further administrative changes that have strengthened that Independence yes absolutely so so here's a I think a story that helps to to bookend the century um that that has us focus a bit on the lower courts but I think it's really used people here so so as we said we get these different um kind of we have the judicial conference we have the AO and this becomes crucial at a time as we mentioned where the courts are really expanding and the caseload of course is really uh Rising significantly in the federal courts and so one place where I think we see a really interesting contest here and the assertion of the norm of judicial Independence comes into play with unpublished decisions right so as the caseload is rising this is in the 50s 60s and 70s one of the first moves we see from the federal courts is the judicial conference stepping in in 1964 and saying for the first time uh to the judges you don't actually need to publish formally every single decision that's going to come out of your court right so this is really speaking to the courts of appeals so if you have a decision that's really not meant to be presidential just applying precedent that's well established it doesn't need to be in the federal reporter this is a huge shift for the courts and then what comes out of that is the decision by each of the different circuits as to how to respond to that right so when it's appropriate to publish a decision and when is it fine to forego that and then how you treat the decisions that aren't published right so those aren't presidential and they're not meant to be cited as as such but can you even cite them at all to the courts and there was a split on this as many in the room will remember so what this then ended up with was by the time we get to the early 2000s we have Congress stepping in and saying we're hearing some concerns about these unpublished decisions and in particular in some circuits that you can't even cite back to these opinions so what does it mean to have these courts if you can't cite back to a prior opinion what's fascinating about this moment in time is that when the hearings are going on you have members of the Judiciary coming back and saying this is really our territory and it's not appropriate for Congress to be stepping in and telling us what to do with our decisions so you've then judge Alito from the third circuit you have a the chief the chief judge of the ninth circuit Alex gazinski testifying and this is really what their point is you know again this is the management of the courts that we're talking about this is for us to decide and we want to avoid a real confrontation between the branches this is something that Kaczynski says directly back to Congress um and then what happens of course is Congress backs off a bit and we have the Judiciary itself coming up with a solution to this we get a change in the in frap the federal rules of Appellate Procedure 32 right this is starting in 2007 that these are all decisions that can be cited to but they're not meant to be persuasive Authority but you know if we pull back again thinking about this in the larger lens right this is one of these moments where because we have these different kind of sites now for administration within the Judiciary you can speak kind of in a unified way and actually push back against the other branches and say this is our shop and we're minding it um and we don't want to have a contest and then you see Congress really acquiescing and backing off to that right so for all the politics that are happening in the background for all the shifts that are happening with the Supreme Court you actually get this really interesting kind of unified assertion in the lower courts about right this is our territory um and again Congress really stepping back from that fascinating uh Neil Devon's what was distinctive about uh President Reagan's effort to appoint strict instructions judges in the 80s of course as you've noted uh presidents have taken partisan balance into account throughout the 19th and 20th centuries there's always been politics in the nominations process but what changed well I think attorney general Ruiz made a concerted effort to develop a network of young lawyers who would be able to carry water which is what we're seeing today people such as Neil Gorsuch samolito uh John Roberts um you know all worked in the administration uh there was an effort essentially to be future focused and one other thing that we did that was uh I think very smart politically was that he wanted people to be organized around ideas so he used the justice department as a venue to have seminars on originalism where people like justice sculia would speak to and people would essentially develop Norms of decision making that they would be committed to so that when they later were eligible to become judges they would be well schooled in these Norms well schooled in what the project was and committed to the project their social networks were networks of conservative lawyers as well and that reinforce the Norms within the group So Reagan was particularly good or attorney general Louis was particularly good in being future oriented and it's laying the seeds for what we're seeing today with uh the rise of uh conservative legal Network and the rise of the Federalist society and obviously the rise of textualism originalism and the like as we heard on the first panel the debate between strict instructionists and living constitutionalists dates back to Jefferson and Hamilton and played itself out on the Marshall Court between Marshall and Tony so to what degree did Norms of uh there being a political valence to methods methodologies of judicial interpretation change in the 20th century well I think that's one important Norm is that judges will not decide cases based on the partisan affiliation of the president who appointed them um I think that's an important Norm of judicial Independence that is potentially vulnerable to change I think another important Norm is that presidents and political actors are going to comply with federal court orders even if they don't like them and that hasn't always been the case and is also I think vulnerable to change and then the third one is the one I mentioned originally which is that Congress isn't going to abolish courts because they don't like the way that the judges are making the decisions on that Court um and if you sort of take them one at a time maybe in reverse order from the way I had it before I think the change the change to the first one the one that led to the bipartisan uh criticism of the of the Gingrich suggestion to get rid of the ninth circuit I think you can see that changing through like even as even as late as the 1920s you still had that conversation happening in Congress so you didn't see that conversation that Norm changing until like the 60s and 70s and that goes hand in hand with the second Norm about political actors complying with federal court order so if you think back to Nixon and Watergate so he says I don't you know he says to his his um political uh colleagues I'm not I might not comply with a supreme court order that tells me to turn over the tapes and the response was oh you have to do that right that's a that's a norm of judicial Independence contrast that to the massive resistance to Brown in in the in the 60s and the late 50s and 60s which always startles my students and I think it's I think it's a good reminder to when you show that to a modern audience and they're like what do you mean like Supreme Court or no Supreme Court we're not going to integrate these schools I think following the Civil Rights Movement you have this creation of a bipartisan a distance from that uh that eventually leads you to what happened in US versus Nixon and then you know ultimately Bush versus Gore um I also think you know the the 911 cases uh after you know the bemidien hamdan Hamdi you have George Bush George W Bush saying look I don't like these decisions from the Supreme Court but I'm going to comply with them that's again that's a that's a norm a bipartisan Norm of judicial Independence there's nothing in the Constitution that necessarily requires that and then the last one is one that I think is really important for us in this room to reflect on it's the importance of judges and the bipartisan Norms of judges in you know supporting and reinforcing the norm of judicial Independence so Neil and I have done work uh where we looked at onbank decisions and we went back and collected them for time periods over 60 years and the reason we were interested is because when a court of appeals sits on Bonk all collectively that's really an opportunity to see judges line up in partisan teams all those appointed by democrats versus all those appointed by Republicans and so we were we were worried and we were we were suspicious that we were going to see an uptick in what we call partisan reversals um over time but what we found this is the heartenings part of the story we found like a good news of bad news but what we found was actually there was a strong resistance that for 60 years to that use of the ambach decision and I think that what we were touching on was a norm a bipartisan Norm of judicial Independence and then the sad news of the story is we also saw that maybe starting to change from 2018 to 2020 where there was a significant uptick in those partisan reversals so that reason for that story is is more of a I guess an important Reflection Point about how these if they're just Norms that protect judicial Independence how fragile they are and how maybe precious they are need to be reinforced very helpful to put those three Norms of judicial Independence on the table uh one is uh immunity from Congress changing the size of the Courts for partisan reasons the second is obeying with orders that you disagree with if you're the president and the third is bipartisan Norms of Judges themselves um Marin Levy what like can history shape the shed on on those questions and did the professionalization of the Judiciary in the 20th century increase the strength of each of those Norms or not yeah so it's a great question I think I think so just reflecting back a bit on what Ali was talking about with the the fragility of these Norms I think it's it's worth noting I guess a couple points a one and this is just now to reflect back something a lot of people have been thinking about for the last several years so if you were to have conversations with legal academics and judges a few years ago were thinking about the strength of different Norms the one that was always upheld the most as uh I think the most robust was was right we're not going to see any attempts and again to to pack the courts right we're going to be respectful of the courts as they are and certainly we wouldn't do that in response to any kind of decision that the courts were reaching so whatever else might be happening whatever other Norms might be broken across the executive we're not going to see that sort of attempt um from the political branches vis-a-vis the courts and it's been quite astonishing in recent years to see that the uh walked back a little bit and I think it's hard to to even at this moment to fully say what's going on with that Norm I think one thing we can all kind of think about is obviously the Biden commission was created to study the Supreme Court in part to think about court expansion Court packing and ultimately you know because walked away from that and I think a lot of folks think about the creation of that commission as a way of in fact not having to come out strongly in favor of Court expansion or something like that but I I do think um one thing that we're seeing it maybe going back to the idea of unifying the the Judiciary on this it is some resistance to all of that right trying to actually kind of resubstantiate some of those Norms um but I think just to Echo what Ali said but we're in a time where it feels a lot more fragile than I think any of us would have expected even a few years ago Neil Devon compared now with the 30s in court packing it's the obvious comparison threats of Court packing that failed claims the judges were deciding for on partisan grounds or valences and uh I suppose not threats to ignore judicial decisions but but talk of uh that sort of thing in the air um are is is now different or have we been here before well I I think uh to build on what Lorraine just said I think we're at a very precarious time now uh the partisan division uh wasn't one earlier we didn't have Republicans and Democrats lined up ideologically as we do today so as a result the stakes seem higher because there's a greater predictive value that if you nominate a Democrat that judge will behave differently than if you nominate a Republican and uh the world we live in is one where the affluent and well-educated tend to be the most partisan as well that's the community that selects the judges the community from which the judges come from uh and I I think uh it's it's a challenge for a judge today to rise above these parties and labels just because they're priors are oriented in some fashion around their party uh or else they probably wouldn't be nominated to be a judge in the first place which also means uh the willingness of the other side to take action against them is greater uh and I think the risk of core packing as a result are much greater today than they have ever been uh and uh I think if there's a democratic super majority in Congress and uh the Supreme Court continues to decide cases the way it has in the past term uh I think there's a real risk for core packing to actually happen um Allison what about the founding uh as a precedent for today so arguably after the election of 1800 all three of your Norms were being uh violated the the outgoing Federalists actually changed the size of the court to deny Jefferson the opportunity to make appointments Jefferson absolutely is threatening not to obey Marbury if he's ordered two and there's clear partisan violence so weren't things even worse then yeah so I actually think that's a really important point because it shows when you you think like where does judicial Independence come from it comes from an evolution like the way we think of judicial Independence today it comes from an evolution of norms since that time so it's not baked into the Constitution fully it's something that grew over time and can change is vulnerable to change I mean I'll add on on the court packing point what part of this is colored by hindsight but when we talk about the 1930s the 1930s Court packing plan we also discussed the resistance in the public mind to it that it was actually ultimately proved to be not what the people wanted we don't want to pack our courts we want an independent Judiciary a difference between that and today I think is that you have people you don't have people talking to each other necessarily so one Camp thinks Court packing is essential and another Camp thinks Court packing is outside the bounds so outside the boundaries so this you know what I've been talking about these Norms of judicial Independence sort of implicit in my comment is that they're bipartisan Norms of judicial Independence and if you don't have the parties talking to each other then you can't have the development and reinforcement of bipartisan Norms um and so that makes me nervous and it makes me agree with Neil that we're closer to the we're closer to the edge to the cliff than I think we were in the 1930s uh Marilyn Levy are things better on the lower uh federal courts the the inferior courts the the appellate courts and and uh to what degree do we see less polarization there that ethics at this important sure well it's funny to answer that question yeah careful how you certainly never say inferior or just voting the Constitution um so it's a terrific question I mean I think the answer is right is there is there less polarization there I think the answer is yes and and for a number of reasons I mean I think in the judges in this audience can answer this far better than I can if we look at the court of appeals in the vast majority of cases are decided unanimously right 3-0 I'm seeing some nodding that's encouraging so um you know part of that of course is just what the issues are that a lot of the issues that come before the courts mean they don't these judges don't have discretion over their dock it's the way that the Supreme Court Justices do so it's really you have a lot of run-of-the-mill cases and they're pretty clearly decided and so you get a lot of 3-0 decisions and that I think is really critical for those courts right that you you have judges lining up and it's not about were you appointed by an r or a d this is what the law is and we're all in agreement on that front so I think that's part of the story just what is the caseload right and so are you bringing together um different groups of Judges again regardless of who appointed them I think the other part of the story is and this goes back to what mule was talking about um you know there's been a huge Focus obviously on the Supreme Court for quite some time I think it's only more recently that there has been a focus on the lower federal courts um and thinking about what those appointments look like and also will those folks then be kind of um sort of in a position that they could be elevated to the Supreme Court and as a result I mean one way to think about this is when we look back to the Supreme Court kind of the court that I think of us is growing up in like there were swing justices there was a clear middle on that court and I think we still have some of that across the courts of appeals in a way that's so important right I mean that there's more of a middle I worry that we're losing that the way that appointments have been going over the last few administrations and this then of course dovetails with work I think that Neil and Ali have done um so this is all to say I think right things look a lot better if we're looking at the courts of appeals in the district courts but I I do worry with the current climate and the kind of pressure on appointments that if this continues down this road that we may see a little bit of a kind of coming apart and that we're going to lose that middle that I actually think is really crucial for the federal judiciary you talked about the new deal as a time of great polarization of course in the Progressive Era we also saw Arguments for overturning judicial Decisions by popular vote and Arguments for court packing and in the Civil War when Congress changed the size of the Court uh for partisan reasons and there were certainly threats of failure to comply so so what about the thesis that there have been a couple of moments of constitutional change in our history the founding the Civil War the New Deal and then our current originalist ERA beginning in the Reagan Era and this is what happens during the periods of transition well I think that's a very benign way of expressing it uh because it does seem to be uh as everyone was just talking about that they're that there are teams in the sense emerging today and uh and the shift is not one that will endure if the other team gets a majority on the court uh there is not the middle that there was was where you can build a consensus you know through the middle uh if you just have opposite views and you consider the other view not to be legitimate and appropriate uh you just hope that your side gets power and then you will change uh the doctrine on your side gets power uh and uh and I think that may be the world we're living in our fast approaching and I think with respect even to the courts of appeals uh the efforts of State Attorneys General uh to Target uh certain lower courts certain district courts certain courts of appeals uh if they're Republican attorney generals challenging Democrats and if they're Democratic attorney general is challenging Republican administrations you know you're building this sort of Team mentality even in terms of how the lower courts of appeals are being viewed and it's just a question of who has the numbers and that's the way the the Senate is approaching it that's the way the White House is approaching it you know we obviously have the history of Merrick Ireland and uh what happened just in recent months with Dianne Feinstein being out of the uh Judiciary Committee uh I I like writing with Ali because uh she makes things brighter than I would write on my own but uh but uh on my own I somewhat pessimistic but look if I can just add to that so one way to crystallize exactly what Neil's talking about so if you think of remember a couple years ago when uh then president Trump talked about uh Obama judge and the Chief Justice came out in pretty remarkable statement for the Chief Justice to say there are no Obama judges there are no Trump judges there's only judges in that independent Judiciary is what we should all be very grateful for that I think is a very strong Norm of judicial Independence that is in danger today so if you want to think about like what if we do become like well there are Obama judges and Trump judges and I don't have to negotiate with you because you're on the other team that's a that's a real shift from where we were even five ten years ago right um and and it requires the judges in some measure to take ownership of the Judiciary and say that you know we may need to decide cases that don't match perfectly with what we think the right answer is but to do so in order to make the court stronger and to resist certain criticisms that might be otherwise directed at the courts so that we don't look like partisan Warriors right well um uh I I think it's time to sum up in this provocative and important uh discussion and maybe I'll ask each of you just to share your thoughts with our really distinguished judicial audience about what lights history can teach them about how to maintain these Norms of judicial Independence in a polarized age yeah sure uh sorry yeah I'm happy to let them have the hot seat first I'll follow in a minute or maybe I'll just invite you to sort of concluding remarks as you think does goodness um this does feel like a hot seat all of a sudden right now as a student um yeah I mean I I think I think we're all in this room because we recognize this as a very timely topic right on a number of fronts and I would imagine that many of us here come from the position of of thinking that it's crucial that the Judiciary remain independent from the other branches and that we we Shore up these Norms where we can part of what I think is so difficult here just being perfectly candid is is the way in which the Judiciary uh doesn't have full control over these types of things right I mean I I think about it in the following way I imagine telling my my colleagues at the law school you know suppose somebody just said here are the people who are going to be joining your faculty whether you like it or not right and they are now going to be your colleagues for the rest of your life or I've always been struck by the way judges talk about their courts as like a family does one put it it's like where it's made up of all the in-laws right like and you you don't have any control over who's joining your court and and these are the folks you now have to work with and I um and you know we can talk about it as we've mentioned right the way the confirmation process has changed and really I think become quite problematic so I I guess where I'm coming out of this room is I really feel for the Judiciary right now I feel like judges are in a tough spot um and I do worry about the Public's perception of the Courts at this moment and seeing judges as partisan in a way that I don't think that they are because we're talking about the lower courts so this is all by way of saying I think you know we've seen these inflection points over history and we've come out of it and I hope that when we look back in 10 years we'll be able to say we came out of it again and it was thanks to the actions of the judges including folks in this room but I do recognize this as a precarious point and um and you know this is not something that unfortunately everyone here has full control over great thoughts thank you for this Neil um and uh you know I'm just going to Echo that I I think that the judges uh are very much committed to making law-based decision-making uh but uh there are different uh perspectives on what the right answer is that tend to be divided now along partisan lines which is obviously creating a complication for judges who are doing essentially the same thing that judges have always done but now it's easy to put a partisan label on it so I just want to Echo what I said before that the judges may need to work together to overcome that because the political actors are not going to help them overcome that and uh let me close out by referencing another article that Ali and I wrote on the personalities of the different federal courts of appeals and we found that by the courts investing in their own local cultures and local Customs we're able to strengthen communal bounds and collegiality between the judges and that type of communal behavior and investing uh in the circuits and recognizing that the duty is primarily to the job of being a federal court judge and not to reaching necessarily one or another outcome uh might be the most salutatory thing uh you know that the judges can do and uh and I hope that's something that resonates with uh some or all of you in the audience and I'll take the Baton right right as you said and bring a little sunshine so in research in researching that article um we learned some stories from the lower federal courts and particularly the DC circuit and what judge Edwards did to bring his court back from real partisan divisive culture and it was things like lunches out um making sure that the panels are truly randomly shuffled and that you sit equally with somebody you know you're not you're you're not in the same company over and over again having more more rules that make sure your work gets done on time so that there's not pent-up frustration about someone keeping your decision from going out and making I mean making sure that you see members of the other team as human beings who are all part of a different team which is the Judiciary um and that that team Allegiance is more important than perhaps the allegiance that got you the job to begin with so there are examples of success stories of these Norms being reinforced and um these Norms being I guess you know given to the Next Generation we're not powerless but it is a formidable job for giving us a ray of optimism please join me in thanking our Palace [Applause] wonderful we'll reconvene in 15 minutes important thank you thank you foreign foreign foreign foreign foreign foreign thank you foreign foreign thank you I guess that was the clock [Music] I'm gonna wait I'm just gonna wait together hi everyone yeah welcome back welcome back that's it okay welcome back everyone um thank you for joining us for our program on the evolution of judicial Independence I'm Clara Altman I'm the deputy director at the Federal Judicial Center the Federal Judicial Center is the research and Education Agency for the federal courts and we are really pleased to partner with the national Constitution Center on this program we're really thankful to Jeff Rosen to the staff at the NCC and to all of you in the audience for joining us this morning we just finished two panels this morning with historians and legal Scholars talking about the history of judicial Independence and its Evolution bringing us up to today so it's fitting we think to round out that discussion with our two panelists um in this last panel two federal judges to talk about their perspectives on judicial Independence so joining me all the way on the right of the uh to my to my right judge guy Cole from the sixth Circuit Court of Appeals and to my immediate right Judge Sarah Ellis from the northern district of Illinois and I think where I want to start our panel is with some definitions to start with how you understand judicial Independence and what it means to you and I'll start with you judge Ellis uh well I think judicial Independence is what it means to me is that we are able to make the decisions that we believe are correct in line with the law um and that we don't worry about our jobs we don't worry about our safety or our security we don't worry about what Congress or the president thinks but that we get to the right decision and that we are accountable to the people and we are responsible to the people and we are protected and supported by the people judge Cole well I'd like to thank the center for having us uh my definition is pretty much the same um I see uh judicial Independence as the freedom for courts trial and appellate courts Supreme Court as well to be able to decide a matter based upon the merits without any concern for legislative or executive interference or involvement or from any external source so in my mind we have a system in uh in this country where we really don't have to worry about contact from outside sources we don't worry really as much about threats uh from uh changes in in government changes uh uh that might you know impact uh the the overall administration of of of our courts uh you know you look at some countries where uh when there's a change in government you know the military comes in and uh political officials and and judges are marched out of their offices you know we don't have to worry about that I mean we uh have norms and conventions that's uh this country where uh that's really not a concern and you know we certainly are challenged uh at this point in our history uh to try to protect those norms and those uh conventions but at this point we really are able to make decisions as judges based upon the merits uh of of cases based upon the record that is made by bankruptcy judges magistrate judges District judges and in in their cases at the court of appeals uh the record comes to us uh and based upon that record that uh uh is before us then we can make a decision about how the case should be resolved so uh we've been talking this morning about a lot of the norms and the courts we've been talking about the history of the politics and constitutional law um a lot of matters that those of us uh who are either steeped in thinking about this stuff or who are Judges think about all the time um but I wonder about um people who are not judges people who are not steeped in thinking about this all the time and the way I think many in this room are um how would you explain judicial Independence to them and what they might expect or how might you hope they understand it and that may be some of what you've already said it may be something else um judge Alice well I think that the importance of civics goes a long way to making the public understand what we do and how important it is that we are independent and free to make the decisions that we think are correct on the merits so every time that I see students come into the courthouse I'm really excited to see them or when judges go out into the community but that it's important that people understand that the courthouse is their that's their house and that's where they should come in uh we used to have um Court Watchers when I was a young lawyer and it was a group of people that were retired they would come in they would watch trials and then as I would be coming out they would pull me aside and say Hey kid you know that cross I don't think that went over so well but they would come in and they would sit in the cafeteria and have coffee and talk about the cases and talk about the judges but more importantly would go back out in the community and be our Advocates and talk about how judges decided cases and that things ran smoothly and that things were Fair and that I think is so important and I understand these days that it is harder and harder and harder to get into courthouses and in some ways it should be because for judges to be independent and feel like we can make the decisions we need to make we need to be safe and we need to feel safe and we have to walk that line between security and safety and keeping the courthouses open so that people can see what we do because if they don't see what we do they won't understand what we do and they won't understand how non-partisan we are that we are not trying to get to the right result because it will please the president or will please the senator that put our name forward it's we want to get to the right right result because it's the right result and the more that they can the public can see that we do follow Norms that we don't decide cases solely on a particular when but that there is a process and that the process is consistent no matter what judge no matter whether it's a district court judge a Magistrate Judge a bankruptcy judge a judge sitting on the court of appeals there is a consistent process and you can Bank on that process so the more that we have the public understand what we do the more that they are invested in and understand how fragile judicial Independence is and will stand up for us when it's threatened call yeah I think it's important to you know Focus initially on just the three branches and how different they are so if you look at the executive branch uh you're looking at millions of employees who are uh you know federal government employees who work in different agencies uh different uh sectors of of the of the federal government uh you look at the you've got the cabinet you got all of these you know various officials and we expect for the executive to have policies that they're advancing we expect uh the executive to run the government on a day-to-day uh basis uh and we expect the government to be uh the executive to be visible uh in terms of advancing uh its agenda its policies you look at the legislative branch of course their job is to enact laws they also have policies that they're advancing and we see these daily so you know a good example I think you know just in front of us today is the debt ceiling crisis so what we're seeing right in front of us right now is the executive and the legislative branches are negotiating trying to find some sort of agreement where this very important issue can be resolved uh report it in the news daily um and we hear you know of movement one way or the other in terms of the policies and positions of these two branches notably absent of course is the Judiciary you know we are uh uh more reactive there's no role for us to play right now in terms of this debt ceiling uh crisis and there won't be a lesson until some sort of action is filed in our in one of our quirks and I would what I would tell the public is that we are not to uh designed to advance policies in that regard we uh are are really more of a of a silent partner though critical partner in the whole process and we become uh more involved obviously once some sort of an action is brought to the courts at that point our role is to decide cases based upon a record that is made before us um we don't worry about what president appointed us or we certainly should not we do not uh our decisions are not Guided by uh the the the the party of which we were before we became judges we are we review matters based upon the constitution based upon the law and based upon the record that gets made either at the trial court level uh or that's before the Appellate Court so that's what I would tell the public you know our role is just very different from these other two branches which are very visible in terms of advancing their policies uh and their perspectives and I guess just to follow up on it I think um that it's important for the public to understand that we play the long game and that we look at um issues that come before us in the context of history and in the context of how issues have come before us before and how we may expect them to come before us in the future whereas you know the executive branch or Congress or state legislators are of the moment and so they may not as you're drafting a piece of legislation be thinking about how does this interact with other pieces of legislation how does this interact with other decisions that have come before sometimes it is in the legislators mind about this interaction and they will draft things very specifically but a lot of times they don't and it's you know kind of like making sausage you know you throw a bunch of things in there and you see what comes out but it as judges it's our job to look at particular issues in the context of everything that has come before and um I think that it creates a lot of stability in government where people can rely on precedence people understand what their rights are that they believe that once it's established they're not going to disappear um and and that is our role in terms of judicial Independence it's really a helpful Foundation because I think you know you laid out a couple of aspects to Independence I think we'll get in get into each of them we talked about decisional independence um you know making decisions in cases free from improper influence you talked about the independence of the Judiciary as a branch within our government what its role is and on the last Point judge Ellis I hear you talking a little bit about the logic of the law um and the way that that promotes Independence and the culture of the law so I want to start with this issue of your decisional Independence this is you know Mary Builder this morning referred to this as this thing called judging um and the emergence of this thing called judging and I was wondering if you could talk a little bit about when you are doing that as judges um what are some of the constraints the Norms the procedures the practices that help you ensure your Independence that are part of you staying independent and I'll start with you this time touch Cole so I'll use an example of this you know in the news now and so the Asylum issue the the the the the Border crisis so you know the public you know understandably thinks about uh the immigration issues in a in a very broad sense what policy should our court I mean our country have in terms of uh uh people from outside this country entering uh and obtaining some sort of review of uh their their status and in the event they're seeking Asylum or some other uh protection in this in this country uh for the courts we review those matters on a case-by-case basis so yeah they're all these overarching policies but the courts make decisions based upon records that come before us so in the immigration context those records are made by an immigration judge and a board of immigration appeals and they come for example to the court of appeals with that record before us so to the extent uh a petitioner as we call them is making a claim that he or she should not have to return to their country of origin based upon some sort of uh status uh threat persecution or something of that nature uh we as as courts are not looking you know really as much as the overarching policy as we're looking at what record have the parties the government and the petitioning parties made before us and we make our decision based upon that which leads me to the next Point uh and that's that you know courts are governed you know by precedent so uh you know we're not reaching decisions you know from Whole cloth you know we have a long body uh usually not always uh of law that gives us guidance in terms of how uh other courts have decided to matter matter how district courts within our districts how uh circuit courts within our circuits and of course the Supreme Court and so we have that precedent uh as a guidance and we're bound obviously to follow uh precedent to a certain extent the other thing that uh I think is a is a guide I'll just say for the appellate courts uh and this has been referenced earlier uh you know the pellet should I just sit in panels of three uh ordinarily and having uh two other judges uh who hear the matter along with you and then uh are in a conference following uh oral argument if the matter is argued uh to discuss the matter is of great benefit because it gives uh certainly me as a judge a chance to hear how two other judges have reviewed the record how how they've assessed oral argument and how they're looking at the case uh that uh is born before us you know we also have uh to the extent uh the panel has decided a matter in a way uh that maybe is a little bit off the rails or somebody views it as being erroneous there's a process for a panel hearing uh there's also a process been referred to earlier uh for ambach review uh and in larger circuits you're looking at an onbot Court of 14 15 16 judges uh and you know that is a you know a bit of a self-regulating uh uh aspect of being uh in the appellate courts because I I think any judge is at least somewhat mindful of you know is this a matter that you know might prompt the ambot court to review this and it's a it's a good thing I mean it's good to have uh uh the full court there to deal with matters of great importance uh of exceptional importance uh to the extent uh the Avant court has a different take from the uh from the three judge panel and then of course you've got the Supreme Court which can decide to you know Grant review of a matter that that they're requested to take jealous about on the district court well we have the court of appeals and uh that is a a very significant constraint on people going off the rails and I think it has more to do with um people's humanity and sense of self uh in that nobody wants to be told that you're wrong and nobody wants to be publicly shamed and said you're an idiot and you know you can't read so that I think that that actually goes a long way um when we were talking about norms that it does keep people in check because for the most part most people don't want that public shaming and most people care um and you know I don't want and I don't seek to be reversed by the seventh circuit when I issue the decisions that I issue I'm okay with being reversed if I believe that you know they're not everything is black and white and if there are ways that the seventh circuit could say this is how it should come out and I could legitimately say no I think it's this other way you know if it's um two equally valid outcomes I choose one they choose the other one there is no shame in being reversed but where you go completely off the rails there's a lot of shame in there and there should be so um I think that that is of an institutional way of kind of keeping uh individual decision making in check because there's this culture of the law and remaining within the bounds of the law and following precedent and uh not getting overruled and not getting told you're an idiot by your colleagues that helps to ensure judicial Independence there's this other aspect of it that came up on the earlier panels um I think Marin Levy referred to as the family of in-laws but the you know sort of coming into the court the culture the collegiality um and I was wondering if you could each talk a little bit about your experience with that about how the community of the court and your colleagues shapes uh your sense of Independence reinforces or bolsters those Norms start with you judge Ellis and I I think it's true it is a family in that when you um join the court that you are joining a family and I know that across the country levels of collegiality can vary from court to court and circuit to circuit but I can say in Chicago in the Northern District when somebody comes on that it's almost a welcoming committee and people go out of their way to um share things as mundane as here are the spreadsheets I use to keep everything on track so that we don't cases don't fall through the cracks to every Wednesday morning we have coffee together and when you do that over time you get to see that it really doesn't matter who appointed you that people have families and dogs and go on vacation and ask for restaurant recommendations and you get to know people as other people and what that does is creates particularly on the district court when you are deciding things in isolation that it's a space where it is open and safe to ask questions that you are not meant to nor should you believe that you have all the answers and that things are difficult and hard and so it might make sense to you know over coffee on Wednesday say I'm struggling with this in what do you think and that you can then talk it through and get other perspectives the nice thing about being on the Appellate Court is that you have to convince two other people to agree with you that that what uh the result that you believe is the right result actually is the right result and not only that it is the right result but the way you got there is the right way to get there and as a district court judge it's important to be able to have those kinds of conversations with your colleagues but you will only do that if there's Trust if there's mutual respect and so I think that these things of collegiality are so important to build that just go yeah I agree completely uh the prior panel you know made several you know really good points on on this um the DC circuit certainly focused under judge Edwards on Improvement collegiality and and uh I think across the circuits there's been um you know A Renewed focus on on doing that uh with the DC circuits you have all of the judges in one location uh the challenge for many of the other circuits is that judges are uh resident in multiple States and there is usually you know a a home court where uh most of the arguments are held though some circuits uh do travel but the challenge is that the judges don't see one another each and every day you can go weeks or months uh four five six months and not sit with another judge or maybe even see that judge so it's important to do whatever uh can be done to enhance the opportunities for those judges to interact as judge Ella said get to know one another on both a professional level and a personal level I mean I agree with judge Edwards in his uh article from a number of years ago yeah it's great to be collegial because you want to work well with people and hopefully enjoy their company but collegiality also promotes an openness for discussion and again hopefully respect for one another's positions so I'll just use the sixth circuit as an example but we're we're not the only circuit who've done this uh we have made collegiality a priority uh and so to such end we've tried to um uh develop opportunities for when we're in our home location in Cincinnati to get together so there's a summer a boat ride with the you know judges and and law clerks that gives us a chance to get together socially we try to have lunch uh most recently judges and their law clerks uh and that way you have a chance for you know three judges to get together and law clerks uh from those chambers uh we have a dinner uh during the you know holiday season we try to sit together as a full court three or four times a year now so that we're all in Cincinnati at the same time I think there's just a real benefit uh if if the judges can really just spend time get to know one another maybe get to know one another's families uh to some extent it just promotes uh you know more productive discussions more open discussions and I think at the end of the day uh better decision making that's uh judge called such a good point about collegiality that it's not just about all getting along but it's actually about you know fostering an environment that's open to ideas because you know one of the things that came up in some of the earlier panels is the reality of increasing polarization um and the impact of that increasing polarization on the nomination and Confirmation process for judges and you know uh you know the public sees that it's you know very aware of it we all are um and that that sort of structures the whole way that judges come to the bench and um and and so what what do you say to people looking at that uh and saying like look at this I mean there's just such increasing polarization what do you say about how that you know how the culture of the Judiciary or the culture of your courts um helps ensure a kind of robust Independence well I you know I think that the as others have said you know we're we're living in a very polarized Society I mean that's just the reality um and um you know I can't estimate or predict now uh when we will be less polarized if anything we seem to be going you know in the direction of becoming even more polarized if that's if that's possible so uh I get that question from you know friends and and family and um just members of the public you know what is it like to work uh on a court especially a an appellate court multi-judge court where you have judges who are you know nominated by different presidents of various you know Stripes um who these days go through a a very difficult and challenging uh nomination and Confirmation process you know how do you find a way to work uh together and you just it's it's like anything you have to have to work at it um with in our court when new judges come on you know we do things to try to welcome them and to make their um uh move to the courts uh smoother we have a mentor judge who uh will help that judge make the transition you know from their prior work to work on the court um and and and you know I think we just we just do our best to follow you know uh the rule of law to be faithful to the rule of law yeah do we have different Tools in our toolkit so to speak I've heard that expression before in terms of how we decide cases and where we end up uh in terms of the resolution yeah that's that's definitely true but um I guess my you know my view is that the judges are trying very hard to um follow the precedent uh whether it's from the Supreme Court uh Circuit Court uh to abide by constitutional principles and to make the pop you know best possible decision they can make it these are challenging times though and you know as a member of the public if I step back and and and look at the courts um I I would be concerned um uh especially over the last three four five six years and I just think we have to keep working at it um some of the things we do again across the circuits to try to you know help with this um is address the issues that are of real concern to the public you know workplace conduct there has been a real Focus the last uh several years thanks to the Chief Justice and others for the courts to focus on problems that arose within the courts that can get exacerbated because of you know differences that the judges and others have about uh issues and so you know we're addressing uh those kind of issues and most courts have a directive workplace relations we're also focusing on things like wellness and to the extent there are issues that divide courts or cause problems that seem to be related to um some sort of you know disagreement and misunderstanding sometimes those are issues that are based upon you know health reasons uh uh or reasons related to health and so there are Avenues which judges can access at this point uh to get assistance and then of course you know there um uh our Provisions to deal with judges conduct and disability and uh yeah I think the courts are being very mindful to ensure that those sort of issues are addressed at the end of the day you know we we have to continue to earn the Public's Trust and we can only do that uh by ensuring that we uh are governing ourselves in a manner that uh is appropriate uh and that we're you know again just doing the best we can to to follow the law jealous I completely agree I mean it is incumbent on judges to keep our own houses in order or our own house in order um and to be proactive about it and not wait for decision issues to come to us but that um you know we're not waiting for the next Wall Street Journal article to be published but that we are taking an active role in looking at ourselves looking at issues that bubble up and then dealing with them in a very timely and proactive basis um I think though that we can also look to uh the other branches of government for assistance too um how do we select judges so that the more that we can rely on Merit selection panels that that will give the public trust that people are not being chosen on a partisan or ideological basis but instead that by the time a list of finalists gets to a particular Senator or two senators that they have been vetted through a non-partisan committee who is looking at people's experience who uh that committee when they are looking at particular applicants that they focus on A diversity of applicants right so that you are looking at um people that aren't just coming from Big firms or aren't just coming from uh the U.S attorney's office but are coming from a variety of experiences a variety of backgrounds and then the senator commits here's the Slate we'll put someone from this slate before the president for a nomination I think that will engender trust in the public that people are not being chosen on an ideological basis but rather on the basis of their work their career their Merit um then you know when we look at how the courts administer themselves that we really focus on random assignment of cases and that they are random so that the more that the judge that the public believes that they cannot judge shop so you cannot bring a case in a particular district and think that you are only going to get that particular judge and it's only going to go to that circuit you know you can't stop people from filing things in a circuit but if there is truly random selection people can't judge shot and that I think will also go towards creating this sense that there isn't necessarily this partisan ideological nature of I'm going to choose this judge because I know I'm going to get this result I think that that too is really important and you know just a plug for diversity is I know we've talked about precedence and I don't want anybody to think that we are um chained to precedent because the law does change over time and should because Society evolves and changes over time and I think one of the best examples of that is um when you look at the evolution of sexual harassment cases in um employment law that when the bench was mostly male or all male that it was very difficult to prove sexual harassment cases because the people that were deciding those cases would look at the facts and say you know this is just part of the job right seeing photographs of naked women plastered all over the inside of a locker and having comments as you walk through the break room you know that's you should expect that that's not harassment that doesn't that's not shouldn't bother you that doesn't impact your ability to do your job then the more that you had women coming on the bench those women were able to reflect on their own experiences and say you know what actually that does impact how I do my job and that does make it difficult every day to go to work and the law changed as it should so um I don't want anybody to think that you know just because something has been decided one way that it should always be that way um that is not judicial Independence either right I think judicial Independence comes down to seeing how Society has evolved how Norms have changed and being able to um look and see should the law also then change to go along with um how Society views certain conduct or behavior or actions which really goes back to something on the one of the earlier panelists mentioned about you know one of the things that lifetime tenure promotes is the ability to develop the expertise and the deep thought and understanding in the law to be able to make decisions about it and that's an important part of judicial Independence as well so we've talked about um uh sort of the decisional independence um we've talked a bit about the logic of the law um and there's a third aspect that I wanted to ask you a little bit more about which is about the branch as a whole um and we heard on the earlier panels uh about the the build the growth of the Judiciary since the founding but then of course the development and the build up of kind of administrative apparatus um for the courts and for the branch as a whole largely in the 20th century and I wonder if you could both speak to your um sense of your role within the branch and your sense of the relationship between the larger uh administrative apparatus the branch as a whole and your uh particular role as a judge um I'll start with you judge Cole uh yeah I you know I think we're very fortunate actually um to have uh the expansion that has occurred over the last 40 or 50 years or so I mean we have the administrative office of the courts which I think employs somewhere around you know 800 000 people with various uh degrees of expertise as to all kinds of issues that impact the courts and that would include ethics so to the extent a judge has a question about ethics that judge can call the administrative office and talk with someone who has experience we have the fjc the Federal Judicial Center and we have opportunities like this one to learn more about subject matters and issues that impact how we you know do do our jobs so I think that the expansion of the the admin illustrative apparatus overall has been a good thing we get more information look at the law clerk hiring process now we have this Oscar which allows us to have exposure to a wide range of law Clerks gives us a chance to review you know on a a database essentially that will set forth the application materials for those candidates who are interested in clerking for me for example I'm looking for a diversity of law clerks and in every respect including clerks who come into my Chambers and give me perspectives that I might not otherwise hear I always ask for at least one clerk to take the position that's contrary perhaps the position that I have um and um and to argue that zealously so anyway I think the administrative structure is a good one um again as I mentioned before with that there is the opportunity uh for any member of the public who has a complaint about a judge or judge's conduct uh or judge's ability to serve that person can file a complaint and there is a very robust review process throughout the uh the the circuit the circuit Council uh the judicial conference perhaps to review whether that judge uh is um suitable to continue serving and of course you know there's always the process of impeachment if if grounds exists jealous yeah I think that the expansion of um the administrative aspect of the Judiciary has really helped in terms of judicial Independence in that we are then able to show the other branches of government that we can manage ourselves and um I think it's also helpful for judges to participate in the judicial conferences different committees and show that we're able to kind of manage how the courts run themselves how we how also the different agencies that work with the courts how those are run and it brings up different things for judges to think about so um for instance I serve on the Defender Services committee and through that work hear about different constitutional issues that bubble up across the country that we then as a committee need to deal with in terms of you know do defendants are they being represented um at all critical stages of the proceedings you want the answer to be yes right but um there may be different courts across the country that have different practices or different cultures or different understanding of how they do things but as a judge myself when I'm looking at my own cases it helps bring some of those issues to the Forefront so that I make sure that I am being careful with all of these issues so I think that it um it also Fosters this sense of ownership in the Judiciary when we are working on committee work or with the fjc or working with the AO or other agencies that this is our branch and we take care of it and we have pride in it and we understand how fragile judicial Independence is and what we need to do to take care of it and make sure that it goes forward um as people have said before you know that this is a family and sometimes you know a family of in-laws that yes we can uh criticize each other within the branch you know I can talk about my sister and say horrible things about my sister but God forbid anybody else say anything horrible about my sister so um it does create that sense of ownership in the Judiciary that this is our career this is our calling this is our branch and we need to take care of it um so I think that that also strengthens this uh concept of judicial Independence is when you are vested and you care about it and you want to maintain it so um a lot of our conversation to this point has already touched on on a number of sort of current issues uh or touched on sort of um our our social and political climate at the moment in which you're operating and I just want to ask you about that more directly um is just sort of what do you think what what are the big issues um uh what's on your mind about judicial Independence in this current social and political climate um how do you see the significant issues and I'll start with you judge Paul uh we live in difficult times uh I think it's a it's a tough time in some respects to to be a member of the best but I think it's tough for the public too um and that's why I think uh as judge Ellis said focusing on Civics and the education of the public generally is is just very important I mean we've got a 24 7 News cycle um and I encourage uh you know public Discord discourse political just discourse public discussion and disagreement with what uh this Branch does what I do as a judge that's part of our constitutional framework uh and so I am not at all opposed to that but you look at just the various um threats that exist to Independence of our our branch and uh we we just have to find ways excuse me to um uh address those in a productive uh way you know all we can do is decide cases you know we we find facts we interpret the law we write opinions and then that's really the final word from us until a reviewing Court reviews it at the same time you know with social media uh with all the cable shows uh the talk shows and pundits who in 30 second sound bites uh are giving their thoughts on the correctness of our decisions uh the wisdom of our decisions the thoroughness of our decisions we are powerless in many respects ourselves to address those so it's important for us to be transparent uh it's important for us to urge parties uh and people generally to come to our court proceedings a lot of the circuits now are streaming uh oral argument and you can stream right off of YouTube and I know in our circuit I think most of them uh the circuits um add to that you know just the the the increasing number of threats that judges are dealing with and of course we've had several very unfortunate incidents where uh their threats have been uh taken to actual uh devastating uh action uh all these threatened you know our independence as as a branch but um uh hopefully there are groups that can help explain what we do bar associations um educational arms like the fjc um and and people who understand you know what we do as judges so the public can come to understand better uh what we're doing you know behind those uh walls of our Chambers or in the in the in the courtrooms it can I I would imagine it could seem quite mysterious to a member of the public especially for a court of appeals uh where you've got a very brief oral argument and the public doesn't know how you know these three judges are coming to a decision and what goes in the process into the process uh as others have said most decisions are unanimous like over 90 percent and most discussions uh among three judges are very productive I will say if someone said earlier I think the Outback court is a bigger challenge because you're you're dealing with a a larger number of people but again uh I think as long as we uh are very uh uh clear and and um I guess just proactive in informing the public that self-governance uh is a priority uh in our uh system of uh in our branch and that we had you know we're doing our best to address uh you know the issues that would be of concern to any member of the public or to us um that's that's a good thing too jealous I think what I worry most about is a creep so I don't know that we're gonna lose judicial Independence and one Fell Swoop I don't think it's going to be something that happens from one day to the next and it's over um I think it's more that it would erode and without vigilance that that is what would happen that there would be enough um issues that bubble to the surface where all of a sudden there's an inspector General that is appointed by Congress or um you know various legislation is passed by Congress that then kind of eats away at judicial Independence so I just worry about uh judges not being vigilant enough and looking at the threats to judicial Independence that come across the board um and you know when we talk about security and safety for example that uh that maybe we get too far on the side of security and safety and then courts are no longer accessible the way that they need to be um so you know I think that it is always a balance and we have to just always be thinking about these different things not in a vacuum but how they all fit together but what we can do is um we have a voice that voice is in our opinions and the more that we can write clearly indirectly that the public can read our opinions and understand how we got to the decision that we did and follow the line of our reasoning and it is something that's clear and doesn't come across as partisan that we are measured in our writing that we don't take pot shots um at the parties or we don't take hot shots at the judge or judges on a panel that the more that we can be measured in our writing and clear in our writing and transparent in our writing that that too will help protect and that's what we can do that's that's our voice it makes me think of the point Ali Larson made this morning about uh these Norms didn't emerge in one Fell Swoop right they were built up over time and if they're going to be lost won't all be in one Fell Swoop but an erosion an erosion of them um well we've covered a lot of ground in a few short hours this morning moving from Madison and the framers all the way through the 20th century up to our conversation with judges today very different contexts from Madison's time to talking about the the judicial branch as it is today and you and your many colleagues an entire institutional apparatus around you what is clear though is overall that time people have thought deeply about judicial Independence and what it means just as you all are and as our speakers have today and certainly that will continue I want to thank you both so much for your generosity with your time this morning thank all of our panelists and the audience for being with us today um it's been really enriching and thank you thank you

Channel: National Constitution Center

Views: 1,450

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Id: ZIZFqBfCzb0

Length: 163min 8sec (9788 seconds)

Published: Tue May 16 2023