Judicial independence was one of the core justifications for the American Revolution.
The Declaration of Independence assailed King George III, saying:
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
The framers, influenced by European political philosophers like Montesquieu and Harrington, thus gave judicial power to a separate and distinct branch of government, independent of both the legislative and executive branches.
After some fits and starts in a few places, by the mid-19th century the courts of every state had authority to decide the constitutionality of the other branches’ actions. And, despite imperfections and shortcomings, the independent American judiciary has an enviable record of protecting individual freedoms, minority interests, and property rights.
Our independent judiciary has been the feature of the American government most emulated by the world’s emerging democracies. Most countries have opted for a parliamentary form of government rather than separate legislative and executive branches, but the vast majority have created a judiciary that operates with at least some protection from governmental interference. As Chief Justice William Rehnquist was fond of saying, the judicial branch is a “crown jewel” of the American democratic experiment.
Why are retired state supreme court chief justices speaking out now, and what compels them to raise their voices?
It’s no secret that Americans, like citizens in many Western democracies, have in recent decades lost confidence in both their public and private institutions. That distrust and cynicism is particularly damaging to the courts, which depend entirely on public confidence for their practical as well as their moral authority. In recent years, public attention has focused on federal courts—as Congress has done less, and the Executive Branch has done more, than our framers intended. That imbalance has put extra pressure on the judiciary, resulting in frequent criticism from partisans of all persuasions. Most of this criticism merely exhibits a healthy exercise of free expression, but some of it has been malicious and misleading.
State courts have been subjected to their own assaults, some arising from purely local issues but others reflecting national initiatives. State courts have suffered the same loss of public trust as other institutions, but few national efforts have been dedicated to defending them. The nation’s former chief justices are uniquely situated to monitor these attacks and bring interstate resources to answer them when they are unjust or misguided.
How are state judiciaries uniquely suited to meet this moment, perhaps in ways the federal courts cannot?
Because over 90% of all lawsuits in America are handled by state rather than federal courts, most people’s direct experience with the judicial system will be with state judges. In these uncertain times, state judges have a heightened obligation to conduct themselves in a manner that gives no cause for just complaint.
Beyond that, since most state judges face some sort of popular election—partisan, nonpartisan, or retention—state judges have an obligation, not merely an opportunity, to explain and defend the judicial process to the public at large. And because state courts hear and resolve numerous federal law claims, and vice versa, the rule of law demands that both state and federal systems not only act, but also appear to act, in a fair, efficient, and principled manner.
What is the greatest threat facing the judiciary in each justice’s state?
The Texas Legislature traditionally micromanages the judicial branch more than most states—with laws or budget riders addressing jurisdiction, salary supplements, docket priorities, and work schedules in very discrete terms. Perhaps this is because Texas’s part-time, low-pay legislature attracts more lawyers than most states do.
The biggest challenge in Texas undoubtedly comes from the partisan judicial election by which all 2,000 Texas judges obtain or retain their offices. Every two years, many judges lose in their party primaries, often because of their perceived gender or ethnicity, not their performance on the bench. Even more, typically dozens, lose in the general election because the other party sweeps all the election contests in their district. Beyond that, voters and special interest groups have become far more insistent about knowing judges’ views on a wide array of issues since the U.S. Supreme Court struck down provisions of many states’ judicial conduct codes that forbade judicial candidates from answering such inquiries. If and when Texas becomes a “purple” state, its supreme court elections will inevitably become much noisier, nastier, and more expensive. As we have seen in Michigan, North Carolina, and Wisconsin, massive expenditures, most of it devoted to media blitzes by groups other than the candidates’ own campaigns, have further confused voters about the way courts actually consider and decide cases
What was the most impactful part of serving as chief justice?
Obviously, the Supreme Court of the nation’s second largest state decides many important cases, but much of the most satisfying work of a high court is administrative. During my tenure, the Court strengthened ethics rules for both lawyers and judges, reformed the attorney discipline system, expanded pro bono services for low-income Texans, implemented numerous technological innovations, and streamlined pretrial discovery and other court procedures. All these efforts have been substantially furthered by the Supreme Court since I left. And while Court initiatives are a collegial effort, chief justices enjoy more name recognition and a larger pulpit than that normally accorded to their colleagues.
What do they wish more citizens understood about the judicial process?
I wish more people understood that the “political” cases that make the news, while tremendously important, are a minuscule fraction of the matters our courts resolve. For the great mass of disputes, there is no Democratic or Republican answer, and no liberal or conservative outcomes. And in an era when the outcomes of more and more cases are governed by statutory provisions rather than judge-made common-law principles, the job of state courts is increasingly to apply the law as written to the facts presented to them.
Thus, the character, diligence, intelligence, and good judgment of a potential judge are far more important qualities than his or her political views. Voters in elective states like Texas have a herculean task in weighing these qualities among numerous candidates, sometimes dozens in any one county. But it is important that they do so.
Thomas R. Phillips, who practices law in Austin, is a former Chief Justice of the Supreme Court of Texas, where he served from 1988 to 2004. He is a member of Keep Our Republic's Alliance of Former Chief Justices, which advocates for the rule of law and judicial independence.
