Alexander Hamilton referred to the judiciary as “the least dangerous branch” because it could neither make nor enforce the law without help from the other two branches of government. In the years since then, however, courts and judges in the United States have assumed a much more prominent role in society. American judges preside over criminal trials and sentence those convicted, decide all kinds of civil disputes, both large and small, and make important decisions involving families, such as child custody. They have also become the primary guarantors of the civil and constitutional rights of American citizens.
The case of Marbury v. Madison established the principal of judicial review, which gave courts the power to declare acts of the other branches of government unconstitutional. Then, the passage of the Fourteenth Amendment after the Civil War made many of the protections of the Bill of Rights (which was originally directed only at the federal government) applicable to the states. As a consequence, judges are in the position to protect those liberty interests provided by the Constitution from incursions by the state or federal governments. Judges also play a large role in enforcing the numerous modern civil rights statutes providing for equality in employment, housing, public accommodations, and other areas. Protecting the constitutional and civil rights of minorities, of criminal defendants, and of other unpopular groups and causes requires not only wisdom and courage, but also the ability to make difficult and unpopular decisions without fear of being removed from office.
The cornerstones of any legal system, and the greatest measure of whether it can provide justice to its citizens, are its judges. The preamble to the American Bar Association (“ABA”) Model Code of Judicial Conduct states: “Our legal system is based on the principle that an independent, fair, and competent judiciary will interpret and apply the laws that govern us.” Fairness generally means that the judges must be unbiased and impartial; independence is the ability to decide cases free from political or other outside pressure; and competence requires that judges be of the highest ability, with proper training and experience. While there may not always be agreement as to the extent that the American judiciary meets these standards, most commentators agree with these aspirational goals.
The most important factors that affect the fairness, independence, and competency of judges are: method of selection, term of office, compensation, code of conduct, the disciplinary process, gender and racial bias, and education and training. This Article will explore these factors and examine their effect on the quality of both the federal and state judiciary. A useful starting point should be those provisions in the United States Constitution that were designed to help make federal judges unbiased and independent.
The Judiciary in the United States: A Search for Fairness, Independence and Competence, 14 Geo. J. Legal Ethics 667 (2001)