Judges should not be partisans. Other government officials, depending on their positions, might legitimately set out to promote the interests of the political party with which they are associated; one requirement of judicial independence is that judges not do that. And, importantly—because federal judges are appointed and confirmed by political actors—the belief that the judiciary is independent can be undermined if judges are perceived to be “playing on the team” of one party or another.
Beyond that, it is sometimes said that judicial independence requires that judges decide cases solely according to the law. Of course, it is incontrovertible that judges should decide cases according to law. But there are difficult questions—they have been debated, literally, for centuries—about what making decisions according to law means. In particular, legal decisions, especially those of a court like the Supreme Court that has responsibility to resolve the most challenging issues facing our system, will sometimes require the exercise of judgment on legal issues about which there can be reasonable disagreement and that may implicate—to quote Judge (later Justice) Benjamin Cardozo—“[h]istory or custom or social utility or some compelling sentiment of justice.”[47] Difficult decisions of those kinds, especially when they involve controversial social issues, can leave judges and Justices open to the accusation that they have compromised judicial independence by advancing a partisan or otherwise improper agenda. That makes some of the duties associated with the judicial role and judicial independence—candor, consistency, reasoned elaboration, attention to both the appearance and reality of impartiality—all the more important.
There is a different meaning of judicial independence that raises more complex questions about the role of the judiciary as a whole, and the Supreme Court in particular, in our constitutional system. Judges and Justices should undoubtedly be independent in the sense of making decisions that are unaffected by improper influences, whether those influences are imposed from the outside (by threats, for example) or are the result of their own approach to the job (if, for example, their decisions are influenced by an intention to run for office after they leave the judiciary or if they simply act as members of a partisan “team”).
But judicial independence might also refer to the separate idea that the judiciary as an institution has an independent role to play—a role that is distinct from that of the other branches. Some of the confusion in debates about Court reform may result from a blurring of these two different meanings of judicial independence—the unquestionable value of judges acting free from fear or favor and according to law, and the more complex issues raised by the relationship between the judiciary and the other institutions of our government. The question of how independent of the other branches the judiciary should be is not easy to answer.
