The Judiciary and the Rule of Law

     Some would argue that of our three branches of government, it is the judiciary that carries the greatest burden in ensuring that the Rule of Law prevails.  They are the gatekeepers.  The key element, acknowledged world-wide, is "judicial independence".  In the federal courts we provide that protection by awarding lifetime appointments.  In most state courts, however, the judiciary serves at the will of the electorate either by election to office or retention elections after appointment.  Does this weaken their independent judgments?  Experts are divided but most say the system works.

        How are Judges to carry out their burden?  What is their role? 

In Boumediene et al v. Bush, 128 S. Ct. 2229 (2008), Supreme Court Justice Antonin Scalia expresses dismay that the majority did not accept the judgments of the executive and legislative branches and he questions whether or not courts should "second-guess" other branches.   Yet the Supreme Court had previously held in Cooper v. Aaron 358 U.S. 1 (U. S. 1958) that "Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been  respected by this Court and the Country as a permanent and indispensable feature of our constitutional system."

On another side of the coin, Judge Richard Posner (7th Cir. Ct. of App) has raised the question as to whether national emergencies, terrorism and war should be enough to allow the “trumping” of the Rule of Law. How far should Congress and the President be allowed to go in limiting courts?

Judge David Tatel of the District of Columbia Ct. Of Appeals, in a speech to the New York University School of Law, suggested these elements for a good judicial decision:

“...[W]hether a decision is a legitimate act of judging turns on far more than its outcome. It turns primarily on whether its outcome evolved from those principles of judicial methodology that distinguish judging from policymaking. For example, is the decision consistent with principles of stare decisis—that is, does the decision follow precedent, or, if not, does it either explain why otherwise controlling case law does not apply or forthrightly overrule that case law on principled grounds? Is the decision faithful to constitutional and statutory text and to the intent of the drafters? Does it appropriately defer to the policy judgments of Congress and administrative agencies? Does it apply the proper standard of review to lower-court fact findings? Are the issues it resolves generally limited to those raised by the parties? Does it avoid unnecessary dictum? And finally, are its results openly and rationally explained?”

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Judicial Methodology and the Rule of Law
"Judicial Methodology, Southern School Desegregation and the Rule of Law."

Hon David S. Tatel, Judge of the United States Court of Appeals for the District of Columbia.
Presented at the Madison Lecture - New York University School of Law

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Judicial Independence and the Rule of Law

David Boies -- Tyrell Williams Lecture at Washington University in St. Louis School of Law (Nov.15, 2005). Also published in Journal of Law & Policy (Vol. 22:57 2006)

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In Praise of the Rule of Law
 
"In Praise of the Rule of Law, The Role of Judges, and the Right to Shop"

Nadine Strossen - Professor of Law, New York University School of Law; President, American Civil Liberties Union.

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How Judges Think - or Should Think
©  Democracy - A Journal of Ideas Issue #9, Summer 2008

While we battle over who our judges are, what matters most is how they judge.
Kermit Roosevelt III Professor of Law Univ. of Pennsylvania reviews two very differing books on the roles of judges.

Justice In Robes By Ronald Dworkin • Belknap/Harvard University Press • 2006 •
How Judges Think By Richard Posner • Harvard University Press • 2008 •

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A Judge's Role in the Rule of Law

A summary of the views regarding Judge's roles expressed by two authors exploring the Rule of Law .

"On The Rule of Law - History Politics, Theory" by Brian Tamanaha and "The Rule of Law in America" by Ronald Cass.

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Democracy and Rule of Law Must Prevail

Comments by Hon. Aharon Barak, president of Israel's Supreme Court at Brandeis University 2003

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Independent Judiciary: Core of the Rule of Law

Justice F.B. William Kelly - Supreme Court of Nova Scotia, Canada

An explanation of the concept of judicial independence as it has been applied in some member states of the United Nations.

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United Nations - Basic Principles on the Independence of the Judiciary