Judicial independence is a familiar idea, though it is also a difficult one, in more than one sense. Difficult to accept, on the one hand, because independence from political, and ultimately electoral, control seats uneasily with our notions of democracy in which political power (which judges exercise, since they make their decisions in the name of the community) must spring from and be answerable to the voters. Difficult to work out, on the other hand, because even if we agree that, democratic qualms notwithstanding, that judicial independence is a good and important thing, we are bound to disagree about what, exactly it means or requires. To what extent can the executive be involved in the administration of the courts? Can the legislature lower the judges’ salaries along with those of all civil servants? Can it fail to raise these salaries for some prolonged period of time? People, and polities, committed to judicial independence as a principle can give different answers to these questions.
There is also a more profound difficulty with judicial independence, as Fabien Gélinas points out in a short and very interesting paper. (Full disclosure: prof. Gélinas taught me constitutional law at McGill, and I worked for him as a research assistant on several projects on judicial independence, among others, though not on this one.) As prof. Gélinas says, there some confusion not only over what judicial independence is, but also over what it is for. In fact, he argues, it has two distinct purposes. One is to ensure the impartiality of ordinary adjudication. Judges need to be independent and secure in order to avoid situations where they will have or will be seen as having an interest in the case before them. No one ought to be the judge in his own case. Nemo judex in propria causa. (As prof. Gélinas observes, the maxim, in this form, is not actually Roman―he traces it to Lord Coke. The Roman law had rules to the same effect, but neither as general nor as pithy.) The second purpose of judicial independence is to guarantee that the judiciary will, along with the legislature and the executive, have what Madison called “a will of its own”, an ability to stand up to the other branches of government. Prof. Gélinas says that this is peculiarly important in the modern state, where citizens recognize the possibility that the executive, and even the legislature, will abuse their power, and must be kept in check, particularly by means of judicial review of legislation. If courts are to expose and resist the abuses of the “political branches”, they must be, and be seen to be, impartial not only as between private litigants, but also between private litigants and the government itself.
This is interesting, but I think it does not go far enough. The focus on judicial review is unjustified. The political branches are not just involved in litigation against citizens in cases involving claims that a statute is unconstitutional. Much more frequently, citizens challenge the legality of executive, rather than the constitutionality of legislative, action, and in such cases too the judiciary must be independent in order to adjudicate impartially. But notice too that we are still speaking of impartiality here―albeit between citizen and state rather than between two citizens. I think that the second purpose of judicial independence, one that arguably goes beyond impartiality, is to avoid situations where judges become instruments of state policy, as administrative agencies can be. Even where the state is not involved in litigation, it might still want, for policy reasons, the case to come out a certain way. Depending on its political preferences, a government might like courts to favour, say, employees over employers in unjust dismissal cases, or corporate defendants over plaintiffs in product liability cases. Judicial independence is means to make sure that if a cabinet minister in such a government picks up the phone, rings the Chief Justice, and tells her about the government’s preference for these outcomes, the the Chief Justice will tell him to go to hell―and that she will not suffer for it.
Of course, the legislature can, subject to the constitution, change the law to, say, make proof of liability for a defective product easier, or to expand the definition of what constitutes just cause for dismissing an employee. But it must do so publicly, after at least a modicum of parliamentary debate, and usually prospectively, so that those affected by the change will have time to prepare for it. A change in the law is also more difficult to reverse than a change in policy, so it is less lightly to be undertaken lightly, as a matter of temporary convenience. Judicial independence does not stop the government from acting―but it forces it to act transparently, democratically and, perhaps, for good reasons rather than on a whim.
The independence of the judiciary gives judges an extraordinary freedom. Nobody can force an independent judge to decide a case one way rather than another. (Appellate courts have some control over lower-court judges of course, because the latter do not like having their decisions reversed―but they will take the chance sometimes.) They can act in ways that are deeply unpopular and retain their positions. This is precisely what is worrying about judicial independence from a democratic perspective (though if what I said in the previous paragraph is right, judicial independence is also, in some ways, democracy-enhancing). But it is worth asking ourselves what it is exactly that judges are free to do.
The somewhat paradoxical, but reassuring answer is that, by and large, judges are free simply to do their duty. This is not to deny the existence of judicial discretion in hard cases. But even in those cases, the judge has and keenly feels a duty to decide the case, according to what the law requires, or at least to a rule that fits with the law as it stands, after having respectfully listened to the parties and taken their arguments into account, and to give the reasons for his decision. A judge who is not independent―a judge, for example, who takes orders from the government, or who worries about being confirmed in his job by the legislature, or who is underpaid and seeks to ingratiate himself with a powerful litigant―is not free to do his judicial duty.