An independent judiciary

Issue October 2005 By Warren Fitzgerald

The notion of judicial independence was perhaps stronger here in Massachusetts in the late 1700s than anywhere else. Certainly, the U.S. Constitution contains provisions for an independent judiciary and a framework for a separation of the governmental powers. But our state constitution is much more direct on the subject.

It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice.
— Mass. Const. art. XXIX

And, even more pointedly,

It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit. Id.

There must have been concerns in the minds of the authors of our social compact that the power of the Crown, here the power of the other branches of government, not be permitted to interfere with the administration of the law. Our state constitution contains one of the clearest pronouncements ever contributed to the forever-evolving separation of powers doctrine.

There was also clearly a concern that the judiciary and its judges be free from the constantly changing attitude and pleasure of the public. Our judges, like those of the federal judiciary, were given life tenure, by later amendment limited to age 70, subject only to continuing good behavior.

Protection from the endless ways in which the independence of judges may be impinged — ruling as they do in common law jurisprudence on a case-by-case basis — must be provided. There is a constant need to maintain the delicate balance between the branches of government. There is even a balance which need be struck between the orderly administration of justice and the freedom of individual judges. And, certainly, the expressions of public criticism, to which we are entitled in this democracy, cannot be allowed to direct a judge's actions — ever.

The tenure granted our judges protects them from the public opinion polls of the ballot box used in the vast majority of other states to select and retain judges. But the world-wide digitalized, instant-reaction news media of the 21st century can confront them with public criticism and social commentary on their decisions before they sit for dinner.

Much of what passes as social commentary in the media these days is based on misunderstanding or, worse, driven by ideological or political agenda. And such commentary affects public attitudes towards the courts and judges even more than it does other public officials.

Many times our judges cannot explain, comment upon or interpret their actions for the public. Many times our judges cannot defend against unfair reporting. For them to explain their actions further than their decisions and opinions would actually be to interfere with and impact upon the very independence and impartiality which they seek to protect.

We members of the bar, however, can explain the technicalities and details of the law, we can interpret for the public, we can insist on fairness in reporting. It is what we do every day. It is what we must do to protect the rights of our citizens, our clients and ourselves.

I am proud to announce the formation of the Massachusetts Bar Association Committee for Judicial Independence. This task force will be chaired by former President Ed Ryan, known to us all as a bold and relentless defender of constitutional rights. Its mission will be to help with the explanation and interpretation of our laws and judicial procedures for the public, to insist upon fairness in reporting and to provide protection for the right to an independent judiciary in whatever ways we are able.

This is one step we can take to help ensure the right of every citizen to be tried by judges who are as free, impartial and independent as the lot of humanity will admit.