The Honorable Jefferson Sessions*
Before I address judicial independence, I want to recognize the tremendous
contribution that the Federalist Society has made to the conservative
legal movement. In a relatively short period of time, the Federalist
Society has become influential in setting the national legal agenda.
Because of the Federalist Society, no longer is the legal community
dominated by liberal and self-interested "professional associations."
The Federalist Society has provided us an alternative voice, and for
that, I am ever thankful.
In addition, I would like to recognize the societys outstanding
Board of Directors, particularly my distinguished Senate colleagues
Orrin Hatch and Spencer Abraham, and of course, The Honorable Judge
Robert Bork. It has been a real pleasure to serve with Senators
Hatch and Abraham on the Senate Judiciary Committee. And there is
one more Federalist Society board member that I want to recognize,
and that is General Meese. Ed Meese was a friend of the Federalist
Society from the very beginning, and he continues to contribute
to the society to this very day. General Meese has made great personal
sacrifices to advance judicial restraint and conservative principles,
and all of us here owe him a great debt.
There has been much talk of late on the subject of "judicial
independence." As you probably know, Attorney General Reno
gave a speech last summer before the annual American Bar Association
convention on what she perceives as "threats" to judicial
independence. According to Ms. Reno, in the last year, "our
national debate has been infused with a kind of criticism that does
not seek to argue the rightness of an issue, but to undermine the
very credibility of the judiciary." President Clinton joined
the fray when he devoted his entire September 27, 1997 radio address
to alleged Republican attacks on the federal judiciary. President
Clinton stated that "under the pretense of preventing so-called
judicial activism, theyve taken aim at the very independence
our Founders sought to protect. . . . The intimidation, the delay,
the shrill voices must stop so the unbroken legacy of our strong,
independent judiciary can continue for generations to come."
Not to be outdone, the American Bar Association recently issued
a report on the independence of the judiciary. The ABA report openly
warns about the dangers of criticizing the judiciary. The report
recommends that state and local bar associations develop ways to
defend federal judges from "misleading criticism." In
one entertaining passage, the report states:
When federal judges are victimized by false or misleading criticism,
they like state judges need help in correcting a factually
inaccurate record so that the public is not led to believe that
the targeted judge committed an injustice.
I must admit that I love that passage "when federal
judges are victimized." Moreover, in his last column as president
of the ABA, Lee Cooper melodramatically wrote that "it is my
view that the biggest challenge to the profession and the justice
system is the continuing attack upon our federal judiciary."
According to Cooper, the biggest challenge to the legal profession
is not an out-of-control tort system, or the terrible image lawyers
have in America, but instead attacks on the federal judiciary. Cooper
concludes that "it is the critics who are activists, not the
This afternoon, I would like to respond to those who believe that
criticism of judges undermines judicial independence. My main response
to President Clinton and General Reno is a simple one: The only
real threat to judicial independence is judicial activism. Activism
and activism alone is responsible for recent attacks on the federal
judiciary. As Archibald Cox recently wrote, "a judge whose
decisions are influenced by politics is putting the independence
of the judiciary at risk."
Although there are countless activist federal court decisions,
I would like to highlight three issues to demonstrate how some federal
judges have undermined judicial independence. While these cases
are by no means an exhaustive list of bad decisions, I believe that
they are particularly relevant to this topic.
Perhaps no two cases have done more damage to the judiciary than
Roe v. Wade, 410 U.S. 113 (1973), and its 1992 reaffirmance in Planned
Parenthood v. Casey, 505 U.S. 833 (1992). In Roe, the Court "discovered"
a constitutional right to abortion lurking in the Due Process Clause
of the Fourteenth Amendment. For the first 184 years of our Nations
existence, abortion was decided in the democratic process, with
a great deal less strife than attends the issue today. In 1973,
however, the Supreme Court usurped the issue and prevented Americas
political institutions from prohibiting abortion in all but the
most extreme circumstances. In one fell swoop, the Court legalized
what many Americans consider to be murder.
In 1992, the Supreme Court reaffirmed Roe in Casey. When the Court
had the chance to return one of the most important issues of our
day to the democratic process, it failed miserably. In a passage
that has come to symbolize an unaccountable and out-of-touch judiciary,
the Casey majority stated that abortion must be a constitutional
right in order "to define ones own concept of existence,
of meaning, of the universe, and of the mystery of human life."
In response to this inscrutable decision, Justice Scalia wrote what
sums up my sentiments here tonight: "[A]gainst the Court are
the twin facts that the American people love democracy and the American
people are not fools."
Another area where the Court has undermined its independence is
the 1995 decision in U.S. Term Limits v. Thornton, 514 U.S. 779
(1995). In Thornton, the Supreme Court ruled that state-imposed
term limits on members of Congress were unconstitutional. In order
to invalidate state-imposed term limits, the Court had to adopt
an entirely new theory of state sovereignty namely that the
powers reserved to the States were not all powers not delegated
to the federal government, but something less. Justice Stevens wrote
for the Court that "[i]n the absence of any constitutional
delegation to the States of power to add qualifications to those
enumerated in the Constitution, such a power does not exist."
In a brilliant dissent, Justice Clarence Thomas showed how the
majority got it exactly backwards. To quote Justice Thomas, "where
the Constitution does not speak either expressly or by necessary
implication, the Federal Government lacks that power and the States
enjoy it." Of course, nowhere does the Constitution prohibit
the States from enacting term limits.
In the Thornton decision, the Supreme Court basically crushed the
most important and popular political reform movement in decades.
Poll after poll shows that the American people support term limits
by nearly 80 percent. Nevertheless, the Supreme Court said that
the Constitution must be amended before States can enact term limits
on their congressional representatives.
Lest I criticize only the Supreme Court, I will now mention one
lower court decision. Last year, the citizens of California amended
their state constitution by initiative to prohibit racial and gender
discrimination and preferences by the State of California. Sadly,
the ink was barely dry on Proposition 209 before federal District
Judge Thelton Henderson blocked its implementation, stating that
Proposition 209 was likely unconstitutional.
Judge Hendersons order would have been laughable if the subject
were not so important. His order was based on the bankrupt premise
that racial preferences are constitutionally required. As we all
know, the Constitution prohibits racial preferences. Although reasonable
people may differ about the wisdom of preferences, no competent
lawyer could conclude that Proposition 209 is unconstitutional,
especially given the decisions in Richmond v. J.A. Croson Co., 488
U.S. 469 (1989), and Adarand Constructors, Inc. v. Pena, 515 U.S.
200 (1995). Judge Hendersons order was nothing more than a
power grab against a democratic decision with which he personally
Fortunately, this case has taken a turn for the better. A unanimous
panel of the Ninth Circuit Court of Appeals reversed Judge Hendersons
order and lifted the injunction. In upholding the California Civil
Rights Initiative, Judge OScannlain of the Ninth Circuit made
my point precisely when he wrote: "A system which permits one
judge to block with the stroke of a pen what 4,736,180 state residents
voted to enact as law tests the integrity of our constitutional
I believe that these three decisions involving abortion, term limits,
and racial preferences illustrate how the federal courts have permanently
alienated millions of Americans. It is little wonder that a 1995
survey revealed that only 8 percent of those surveyed had a great
deal of confidence in the judicial system. Without these and other
activists decisions, congressional leaders like Tom DeLay would
not call for judicial impeachment. Without these and other activist
decisions, theologians like Father Richard John Neuhaus would not
question whether judicial activism has replaced our constitutional
order. Judge Learned Hand predicted long ago that undemocratic federal
judges would cause a backlash and thereby threaten their own independence.
When the backlash comes, said Hand, "the judiciary will then
cease to be independent, and its independence will be well lost."
What Is Judicial Independence?
Finally, I would like to discuss what judicial independence really
is, and what it is not. Article III of the Constitution provides
federal judges with two safeguards for independence: life tenure
during "good behavior" and undiminished compensation.
Judge Learned Hand illustrated what formidable safeguards these
are when he asked one of his law clerks: "To whom am I responsible?
No one can fire me. No one can dock my pay. . . . Everyone should
be responsible to someone."
Judicial independence is not, as some would suggest, having federal
judges run state prisons, mental institutions, and school districts.
Before Congress enacted the Prison Litigation Reform Act in 1996,
Pub.L. No. 104-134, 110 Stat. 1321, state prisons in 40 states were
under federal court orders. Federal judges micro-managed every detail
of these state prisons. When Congress finally restricted the judicial
administration of prisons, critics complained that the Prison Litigation
Reform Act threatened the "independence" of the judiciary.
Habeas corpus reform in 1996 elicited the same charges. Anthony
Lewis of the New York Times warned last year that "there has
been a period of court-stripping legislation unlike anything in
memory." According to Lewis, laws like the prison litigation
and habeas corpus reforms, "have in common a terrible theme:
An individual may have been treated unlawfully, but well prevent
him from doing anything about it." The ABA report on judicial
independence mentioned earlier also charges that the prison litigation
and habeas corpus reforms "impose severe limits on the authority
of the federal courts," thereby undermining judicial independence.
Of course, these critics misunderstand the nature of judicial independence.
Article III states that the judicial power of the United States
shall be vested in the Supreme Court, "and in such inferior
courts as the Congress may from time to time ordain and establish."
In other words, the lower federal courts are not even constitutionally
required; Congress can establish them or abolish them as it sees
fit. In fact, the lower federal courts did not have general federal
question jurisdiction until 1875. My point is this: It does not
threaten judicial independence for Congress to restrict the excesses
of the lower federal courts. Congress not the Constitution
created these courts, and Congress can regulate these courts.
Provided that federal judges are afforded life tenure during good
behavior and undiminished compensation, judicial independence is
In reality, federal courts are threatening our political institutions,
not vice-versa. The federal courts have usurped one political issue
after another. Abortion, homosexual rights, school busing, racial
preferences, term limits, criminal procedure. The list goes on and
on. But the courts want it both ways. They want to decide all the
important political issues of the day, but when they are criticized
for making political, activist decisions, they say, "we are
the judiciary, criticism undermines public confidence in us and
endangers our independence." That, quite simply, is ridiculous.
Perhaps some comparisons will bring some much needed perspective
to this issue. The Lefts complaint about judicial criticism
are ahistorical, to say the least. Criticism of the federal judiciary
has existed throughout Americas history, and much of the criticism
has been far more severe than anything in recent years. For example,
Thomas Jefferson and his political allies came very close to impeaching
Supreme Court Justice Samuel Chase. While Chase was an oppressive,
mean-spirited, and terrible judge, he did not commit a high crime
or misdemeanor. Nevertheless, after a month-long impeachment trial
in 1805, the Senate voted 19-15 to convict Chase, just below the
two-thirds vote needed to convict. "The judiciary of the United
States," said Jefferson, "is the subtle corps of sappers
and miners constantly working underground to undermine the foundations
of our confederate fabric."
Teddy Roosevelt also struggled against judicial activism. Roosevelt
didnt hesitate to criticize decisions he did not like. "I
may not know much about the law," wrote Roosevelt, "but
I do know one can put the fear of God into judges." And of
course, we are all familiar with FDRs Court-packing plan.
After the Lochner Supreme Court struck down every major piece of
New Deal legislation, President Roosevelt introduced legislation
in 1937 to add six new Justices to the Supreme Court. After exhaustive
hearings and debate, the plan was barely defeated in the Senate.
However, the Supreme Court, obviously affected by FDRs relentless
pressure, immediately changed direction and upheld virtually every
piece of New Deal legislation. Some of the legislation, moreover,
was identical to legislation the Court had struck down only a few
years earlier. As pundits said at the time, "a switch in time
saved nine." Compared to these and other episodes, recent criticisms
pose no threat to the independence of the judiciary. Furthermore,
in my opinion, FDRs pressure on the Court was not necessarily
a bad thing. When federal courts flagrantly disregard the Constitution,
a little pressure is justified.
I believe a modern comparison to other nations is even more helpful
in showing just how exaggerated are the complaints about judicial
criticism in this country. For example, a judge in Chile was recently
dismissed after refusing to dismiss a case against military officers
implicated in a kidnapping. In another case, a Chilean judge was
suspended at half salary for publicizing torture practices of the
state police. Scores of Colombian judges have been murdered for
attempting to enforce the law. If anyone extradites somebody, that's
a death sentence. They offer them a choice, death or taking a bribe,
but you don't order an extradition from Colombia. They've murdered
many judges there. This lack of judicial independence is not limited
to Latin America. In Russia, dismal pay and poor security have so
undermined judicial independence and competence that some western
companies settle disputes through arbitration outside of Russia
to avoid Russian judges. Amazingly, Russian judges are paid so poorly
that as of this July, one-third of the judgeships in Moscow are
vacant for lack of applicants. And security is so bad that last
year, one Russian judge was murdered in the courthouse after she
fined a street vendor $7. Obviously, such poor compensation and
security protection invite corruption and intimidation, which greatly
erode judicial independence.
These are examples of real threats to judicial independence. Thankfully,
it is different here in America. Federal judges in America serve
for life, with undiminished pay, in some of the most prestigious
and respected positions in our society. I believe that President
Clinton and other liberals who complain about threats to judicial
independence should consider how judges were criticized in the past
and how they are treated compared to judges in other countries.
If they do so, I believe they will see that judicial independence
is not threatened by congressional regulation or harsh criticism.
Finally, I hope that the federal judiciary will realize that it
holds the key to its independence. When judges obey the Constitution
and respect the democratic process, they are immune from any lasting
criticism, and most importantly, the country is better off. Thank
*Jefferson Sessions is a United States Senator from Alabama. This
lecture was presented to the Federalist Society on October 17, 1997.
The text of the lecture has been revised and edited to fit this