Chief Justice Roberts right to defend independence of the judiciary

Last month, in response to a comment from President TrumpDonald John TrumpThe Hill's Morning Report - White House, Congress: Urgency of now around budget GOP presses Trump to make a deal on spending Democrats wary of handing Trump a win on infrastructure MORE blasting another federal judge as an "Obama judge," Chief Justice John Roberts of the United States Supreme Court fired back:  "We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them." Rarely has a sitting Supreme Court justice decided to spar with a sitting president. In many instances, it would be inappropriate. The independence of our judiciary from partisan politics, however, is not just a battle worth picking, but a principle that judges have a duty to protect. Justice Roberts, therefore, should be commended for stepping off the sidelines and fulfilling his duty in coming to the defense of judicial independence.

This duty to defend the independence of our judiciary stems, first and foremost, from the Constitution. As the Supreme Court recently recounted, the Founders, in writing the Constitution, were cognizant of the "judicial abuses" that had occurred when colonial judges were beholden to the British monarchy. Thus, in defining the role of Article III federal judges, they "sought to ensure that each judicial decision would be rendered, not with an eye toward currying favor with Congress or the Executive, but rather with the clear heads and honest hearts deemed essential to good judges." Judges, in upholding the Constitution, should uphold all of what the Founders envisioned, including this essential notion of an independent judiciary free from political influence.

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Apart from this constitutional duty, the code of conduct for federal judges also counsels judges to defend the independence of our judiciary. To be sure, judges are not to endorse or oppose candidates for political office or otherwise engage in activities that "detract from the dignity of the judge's office" or "reflect adversely on [their] impartiality." But judges are encouraged to speak, write, and participate in other activities "concerning the law, the legal system, or the administration of justice" that are "consistent with the obligations of judicial office."

One of their judicial "obligations" is to "uphold the integrity and independence of the judiciary" and act "at all times" to "promote public confidence in the integrity and impartiality of the judiciary." Taken together, under the code, judges can and should step forward, when necessary, to defend the courts against all efforts to erode public confidence in their integrity and independence.

This imperative to maintain and preserve the independence of the judiciary further explains why other sitting justices have retracted certain politically-charged statements they've made. Justice Ruth Bader Ginsburg, in 2016, disparaged President Trump as a "faker," insisted she "can't imagine what the country would be … with Donald Trump as our president," and joked that she'd "move to New Zealand" if he were elected. She later apologized, acknowledging her comments as "ill-advised."

Justice Brett KavanaughBrett Michael KavanaughSupreme Court sides with Native American hunter as Gorsuch joins liberals Clash with Trump marks latest break with GOP leaders for Justin Amash ACLU, Women's March to hold nationwide protests over abortion bans MORE, during his confirmation hearing earlier this year, railed against democratic senators for their "calculated and orchestrated political hit," their "pent-up anger about President Trump and the 2016 election," their "revenge on behalf of the Clintons," and their cooperation with "outside left-wing opposition groups." He, too, in turn, apologized for saying "a few things I should not have said" in an op-ed whose title summed up his mea culpa:  "I Am an Independent, Impartial Judge." To further correct the record, he added, "The Supreme Court must never be viewed as a partisan institution. The justices do not sit on opposite sides of an aisle."

On many occasions, other Supreme Court justices have affirmed this principle of judicial independence in their written opinions. In a politically-charged case during the McCarthy era, Justice Felix Frankfurter, emphasized that "those who founded this Nation put their trust in a judiciary truly independent" and "detached from passing and partisan influences." More recently, Justice Neil Gorsuch touted repeatedly "the promise of judicial independence" as enshrined by the Constitution.

To be sure, there's no need to deny that the process by which federal judges are selected is inherently partisan. Nor is it necessary to deny that, as Justice William Rehnquist once noted, judges have "formulated at least some tentative notions" about certain issues by the time they take the bench, which may be more in line with the political party that nominates them.  However, notwithstanding that, once confirmed, judges must be apolitical, in that they shouldn't be beholden to the political forces that put them on the bench. Rather, judges should adjudicate without regard for those political forces. This is the notion of "independence" that judges are required to affirmatively uphold and protect.

The importance of vigilantly defending judicial independence is clear. In their role, judges are regularly confronted with legal questions implicating political decisions made and actions taken by members of both parties. To ensure the legitimacy of their rulings in such cases, they must not only reach conclusions that are fair and just, without regard to political affiliation, but also maintain and preserve public confidence in their ability to do so.

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Others may argue that judges can "defend" their independence from the bench in terms of their judicial conduct and decision making, without responding to politicized attacks on the judiciary. This, I argue, is akin to protecting your family from a fire, without fireproofing your home. Judges acting independently to decide cases fairly and justly may serve to protect the independence of their institution from within, while leaving the entire institution vulnerable to assault from without.

If judges are serious about fulfilling their duty to defend the independence of our judiciary, they must defend it both in their courtrooms and in public.

As a young lawyer, I clerked on the federal court for a so-called "Obama judge." True, she was a gay, Asian American jurist who reflected the values of diversity that President Obama sought to bring to the federal bench. But, as a sitting judge, she never once allowed "politics" to invade her decision making. She, like her judicial colleagues, was an impenetrable fortress of independence, deciding cases with allegiance to no one but the law.

For the sake of our democracy, we must not sit idly by as the President and other political leaders attempt to draw party lines with respect to courts and judges. This brand of divisiveness may be tolerated in politics, but it can't be tolerated under the law. 

As Alexander Hamilton once stated, there's "no liberty" without an independent judiciary. 

Justice Roberts led by example when he spoke out against the politicization of our independent judiciary. We need to do the same. 

Justin Lo is Associate General Counsel for the Financial Services Divisions of the Virginia State Corporation Commission, and previously litigated securities fraud and other government and white collar cases at Sullivan & Cromwell and Spears & Imes in New York. He is a graduate of Yale Law School and was a law clerk to Judge Pamela Chen of the United States District Court for the Eastern District of New York. The views expressed in this op-ed are the author’s own and do not reflect the position of his current or former employers.