Ken Gormley: Let our judges be judges, and not servants of the politicians

Ken Gormley is president of Duquesne University. A presidential historian, constitutional scholar and author of books on Watergate and the American presidency, he is also a member of the Pennsylvania Commission on Judicial Independence. His previous article was “Ford’s pardon of Nixon 50 Years Later.”

Holding up a pocket Constitution, retired Supreme Court justice Stephen Breyer noted that plenty of countries are built differently. Some have kings; others have parliaments.

Our Founders, he explained, gave judges the last word to make sure we follow laws and the Constitution. They were, the founders believed, the least “risky” option among the three branches of the federal government.

The president, a muscular political creature, would “do what’s best for the president” if made the final arbiter. Members of Congress, who are “experts in popularity” to get reelected, inevitably side with the loudest voices. The courts — the weakest branch with no power of sword or purse, but who steep themselves in the law — are the safest bet.

As the United States prepares for its 250th anniversary, even as angst and political division shake confidence in our political system, it’s worth appreciating one anchor of our American democracy that’s allowed us to thrive. It’s largely taken for granted: Judicial independence.

Alas, even the best high school and college civics courses skim over this topic, yet it’s a signature triumph of the American experiment. Judicial independence means judges act as neutral umpires and make decisions based on facts and law, free from the shifting winds of politics and public sentiment.

America’s next act

I was speaking to the retired justice in a conversation filmed for Pennsylvania’s Judicial Independence Commission. Now back teaching at Harvard Law School, Breyer, who turns 87 next month, reflected on the vital importance of judicial independence as new generations imagine America’s next act.

As Breyer explained: “We want them to decide the case according to the law, which is often not just mathematics. It requires experience for understanding of the country, understanding of people, understanding of the law … and doing it independently.”

This doesn’t mean that judges can reach decisions based on “whim or personal preferences.” After 28 years on the U.S. Court of Appeals in Boston, and 14 years on the Supreme Court in Washington, Breyer noted it’s non-glamorous work. Members of the other two branches bask in the political limelight each day. For judges, “the applause dies away very fast. Much faster than you think. Then you are left with the job. … It’s to decide cases according to the law.”

Judges often reach totally different outcomes, even in the same cases. Doesn’t this prove they’re influenced by politics and favoritism?

In 42 years as a jurist, Breyer said, that’s not been his experience. Not at all. Many cases during his tenure on the Supreme Court were either unanimous or cut across traditional liberal-conservative lines. Yet these cases rarely got headlines — the hot-button issues did.

“Well, of course, reporters write about the usual subjects,” he said. “Because that’s what their readers want to read about.” Yet, he added, the outcomes frequently defy political labeling.

Breyer pointed to prominent cases after 9-11, relating to incarcerating “enemy combatants” — including American citizens — at Guantanamo Bay without due process. Both strong liberals and staunch conservatives on the Court, including Justice Antonin Scalia, ruled against the executive branch.

President George W. Bush made clear, “I don’t agree with the Court’s decision. But I will follow it.” Breyer remarked: “The same was true of Vice President Al Gore when he lost the case of Bush v. Gore” in the 2000 election. “He lost the presidency. But he accepted it.”

We hope and do our best

I asked the justice how should we deal with judicial decisions that we dislike. “The basic object of law,” he stressed, “is to make it easier for groups of people to live together peacefully and productively. If you have 340 million people, they think a lot of different things.”

Today, some people may bristle at the current Court’s recent decisions that are giving wide latitude to the Trump Administration’s executive orders. Others may feel they’re not going far enough in reversing perceived excesses by prior administrations.

“George Washington said: ‘This Constitution, our government, it’s an experiment.’ Will it work? We hope; we do our best. Allowing those 340 million people to live together, that’s important. We do it more peacefully than in many countries where they’re trying to shoot each other all the time. And making it work requires having competent, independent judges.”

What about the recent push to punish judges — even impeach or jail them — if citizens don’t like their decisions? Breyer strongly cautioned against this short-sighted approach. He recently spoke out publicly to support Chief Justice John Roberts, who declared that “Impeachment is not an appropriate remedy to disagree concerning a judicial decision.”

Why? “Because 339 million of the 340 million people in this country are not judges,” Breyer explained. They’re unfamiliar with procedural rules, with the vast body of law and legal precedent that’s been built up over 250 years. There’s a simple answer if anybody thinks a judge made a mistake: “It’s called an appeal. … And you can keep appealing all the way to the Supreme Court.”

Respecting and abiding by the courts’ decisions, he emphasized, is exactly what’s made our American system strong.

The country we want

As the nation reaches 250 years, I asked, what’s the secret to continuing its strength and durability? For Stephen Breyer, education is key.

Young people must understand how this fragile system of government works, including the pivotal role of judicial independence. It hits home most powerfully when we, or a family member or a friend, are caught up in a criminal or civil case. That, said Breyer, is exactly when we want a judge who’s as neutral as our imperfect human condition allows.

“My wife told our grandchildren, ‘anyone who memorizes the Gettysburg Address, I’ll give you twenty dollars,’” Breyer said. “Why?” He pointed to the second line of that address: “Now we are engaged in a great civil war, testing whether this nation, or any nation so conceived, and so dedicated, can long endure.”

The justice tells his high school students, “My friends, this experiment is now yours.” He paused, before concluding: “There are no guarantees in this world, even with this Constitution. And to see that it works, and the civil rights that we have, and to see that they work in treating people fairly and working together — all of those things are now yours. And you have to decide what kind of country you want.”