Judicial Independence in Practice

External Influences on Judges

Judicial Independence in Practice

Judicial independence means two different things, and Rule 2.4 of the Model Code of Judicial Conduct depends on the difference.¹ Structural independence consists of formal arrangements that thwart outside interference with an individual judge's decisions or with the judiciary's autonomy as a branch. Article III of the U.S. Constitution is the standard example: it guarantees federal judges tenure during good behavior and a salary that cannot be diminished. State constitutions that explicitly guarantee the independence of their judicial branches do similar work.² Behavioral independence asks what structure cannot answer. When the judge rules, does the outcome follow from the facts and the law, or from something else?

Structure alone does not produce independent judging. The presence of such guarantees "does not guarantee that judges will behave independently."³ A federal judge with tenure and a protected salary may still reverse a ruling because members of Congress condemned it. The guarantees keep others from punishing the judge, but they cannot make the judge indifferent to criticism. The empirical evidence points the same way. One study of criminal sentencing found that, all else equal, a judge whose election was imminent imposed a sentence about three to four-and-one-fourth months longer than a judge who had recently been elected or retained.⁴ Elections press on judges, and the outcomes show it.

The gap does not run only one way. An elected judge lacks the protection of tenure, yet nothing about that structure forces the judge to decide with one eye on the ballot box.

Because structure and behavior can diverge in both directions, the Code regulates the judge's own conduct instead of relying on constitutional design. Rule 2.4(a) declares, "[a] judge shall not be swayed by public clamor or fear of criticism." Rule 2.4(b) adds, "[a] judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge's judicial conduct or judgment."⁵ The accompanying comment gives the rationale: "[a]n independent judiciary requires that judges decide cases according to facts and law, without regard to whether particular laws or litigants are popular or unpopular with the public, the media, government officials, or the judge's friends or family."⁶

The rule does not tell a judge to rule against public opinion. A decision that happens to match popular sentiment is entirely proper when the facts and law produce it. The violation occurs when popularity, pressure, or personal loyalty causes the outcome, so the inquiry always asks why the judge ruled as the judge did.

The idea is an old one. The common law judicial oath binds a judge to "do right to all manner of people . . . without fear or favour, affection or ill-will," and the oath taken by American judges promises to "administer justice without respect to persons, and do equal right to the poor and to the rich."⁷ The first two prohibitions in Rule 2.4 turn that promise into specific limits on conduct.

Rule 2.4 breaks the duty into three prohibitions, and each receives its own section below.

1. A judge shall not be swayed by public clamor or fear of criticism.⁸
2. A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge's judicial conduct or judgment.⁹
3. A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.¹⁰