According to this report, Justice Breyer told an ABA audience yesterday that “rulings on difficult subjects like gay rights and the death penalty have left courts vulnerable to political attacks that are threatening judicial independence.” (That’s the language of the article, not a direct quote from Breyer.)
A very different and much wiser understanding of the real threat to judicial independence was provided to the ABA in 1982, in an ABA Journal essay that John Roberts drafted for Attorney General William French Smith: “The greatest threat to judicial independence occurs when the courts flout the basis for their independence by exceeding their constitutionally limited role and the bounds of their expertise by engaging in policy making committed to the elected branches or the states.”
The whole question of “judicial independence” requires, of course, an answer to the question “independent of what?” Breyer and five of his colleagues seem to think that Supreme Court justices are independent of the Constitution and of the obligation to construe it in a legitimate and principled way. For them, judicial independence means unfettered judicial supremacy.
A proper understanding, I think, is that judges should be independent of interference (political or otherwise) in deciding how to apply the law in particular cases. That does not mean that courts are not obligated to apply the law—even legislation enacted to affect a single ongoing case (see the Supreme Court’s unanimous 1992 opinion in Robertson v. Seattle Audubon Society). Nor, of course, does it mean that they should be immune from vigorous criticism. In Chief Justice Stone’s words (as quoted in AG Smith’s essay): “I have no patience with the complaint that criticism of judicial action involves any lack of respect for the courts. When the courts deal, as ours do, with great public questions, the only protection against unwise decisions, and even judicial usurpation, is careful scrutiny of their action and fearless comment upon it.”