Tagged: judicial accountability

“[I]n 1978 in Stump [v. Sparkman, 2435 U.S. 349] the Supreme Court wielded its ever expanding immunity doctrine to prevent suit against a state-court judge who had authorized sterilization of a mildly retarded 15-year old girl after her mother had ‘petitioned’ for the sterilization ‘to prevent unfortunate circumstances.’ The judge had authorized the procedure without a hearing, notice to the girl, or appointment of a guardian ad litem to represent the girl’s interests. Recognizing that the judge had violated the most elementary principles of due process, the Supreme Court majority nonetheless found him immune from a suit later filed by the girl and her new husband. Even ‘grave procedural errors’ do not deprive a judge of immunity, ruled the Court, because immunity attaches to any act performed in a judicial capacity. The Court noted that the judge had signed the sterilization petition as a judge; and it dismissed objections that failure to observe formalities rendered the act nonjudicial.”

Instead, the Court concluded that an act is “judicial” if it possesses two traits: first, the act is one normally performed by a judge, and, second, the parties intended to deal with the judge in an official capacity. The Court, however, interpreted the first of its requirements very broadly, The majority noted that the judge in Stump possessed “general jurisdiction,” the ability to decide any matter not specifically withheld from him. Since no statute expressly denied him the power to hear sterilization petitions, he was immune even though such a petition was unprecedented in the history of the state and not authorized by any statute. In this way, the Supreme Court excused a gross departure from due process that would have subjected virtually any other state official to suit. The effect was plain: under the doctrine of judicial immunity, a victim can be forced to bear the full burden of a serious, irreparable injury inflicted by a state-court judge in blatant violation of the Constitution.

Source: Robert Craig Waters, “Judicial Immunity v. Due Process: When Should A Judge Be Subject To A Suit?” Cato Journal, Vol.7, No.2 (Fall 1987). pg. 468-9.

“Complex cases often demand untried approaches; and it is frequently in the interests of all parties that the judge keep an open mind as to how a case might be litigated or a remedy devised…[A]t the trial level, the judge ought to oversee a process in which the facts are found in an impartial and fair manner and the law is applied as set forth by the legislature or interpreted by the courts.”

Source: Geoffrey A. Miller. Bad Judges 83 Tex. L. Rev. 431, 487 2004.

“What about the cherished independence of federal judges?”

Too much emphasis has been laid on the independence of judges and not enough on the Constitution’s provisions that promote judicial accountability, which include the grant of life tenure subject to termination for misbehavior. Judges do enjoy a certain type of independence–they cannot be punished for the judgments they issue. But the Constitution makes clear that federal judges do not have an absolute or a boundless independence.

Source: Saikrishna Prakash and Steven D. Smith. Removing Federal Judges Without Impeachment. 116 Yale L.J. Pocket Part 95, 99. 2006.

supreme court justice Stephen G. Breyer on the importance of an independent judiciary.

George Washington claimed that “the [true] administration of justice is the firmest pillar of [good] government.” . . . . The good that proper adjudication can do for the justice and stability of a country is only attainable, however, if judges actually decide according to law, and are perceived by everyone around them to be deciding according to law, rather than according to their own whim or in compliance with the will of powerful political actors. Judicial independence provides the organizing concept within which we think about and develop those institutional assurances that allow judges to fulfill this important social role.

Source: Justice Stephen G. Breyer (appointed by President Bill Clinton), Judicial Independence in the United States, 40 St. Louis U. L.J. 989, 996 (1996).

“the Constitution makes clear that federal judges do not have an absolute or a boundless independence.”

Our reading of Article III’s grant of good behavior tenure may be hard for some to swallow, especially those with muscular conceptions of judicial independence. Others, however, may embrace a more historically grounded and nuanced account of judicial independence. For example, members of Congress recently proposed an independent Inspector General for the judicial branch. Some prominent judges, including Justice Ruth Bader Ginsburg, have hinted that there is something seriously amiss with this proposal. After all, how can judges remain independent if they stand in constant fear of an Inspector General investigation?

There is nothing constitutionally suspect about government officials investigating allegations of judicial misconduct and then making reports to Congress and the executive branch. Under any reading of the Constitution, the political branches have the authority to investigate and sanction judges. The chambers of Congress can impeach, convict, and remove based on proper evidence of high crimes and misdemeanors. And whatever Congress decides, the executive may prosecute any judges whom it believes has violated the law. The proposed Inspector General would merely make it easier to prosecute and convict miscreant judges. Moreover, under our reading of good behavior, information gathered by the Inspector General also could be used to prove in court that a judge had misbehaved and had thereby violated the terms of her tenure.

But what about the cherished independence of federal judges? Too much emphasis has been laid on the independence of judges and not enough on the Constitution’s provisions that promote judicial accountability, which include the grant of life tenure subject to termination for misbehavior. Judges do enjoy a certain type of independence–they cannot be punished for the judgments they issue. But the Constitution makes clear that federal judges do not have an absolute or a boundless independence. If an Inspector General would further judicial accountability, that fact counts in favor of the Inspector General proposal.

I think it’s a good idea to have an Inspector General — and [s]he should be African American or a person of color! Lmao!!

Source: Saikrishna Prakash and Steven D. Smith. Removing Federal Judges Without Impeachment, 116 Yale L.J. Pocket Part 95, October 18, 2006.