Essential to the rule of law in any land is an independent judiciary, judges not under the thumb of other branches of Government, and therefore equipped to administer the law impartially. The U.S. Federal Judiciary has been a model for the world in that regard. Fortunately so, for we can promote the rule of law, administered fairly and fearlessly elsewhere--in Afghanistan, Colombia, Iraq, Kosovo, Ukraine, for example--only by vigilantly practicing at home what we preach abroad. As recent experience confirms, however, judicial independence is vulnerable to assault; it can be shattered if the society law exists to serve does not take care to assure its preservation.
On the essence of independent, impartial judging, a 1980 comment by then Justice William H. Rehnquist seems to me right on target. The man who from 1986 until 2005 served as Chief Justice of the United States compared the role of a judge to "that of a referee in a basketball game who is obliged to call a foul against a member of the home team at a critical moment in the game: he will be soundly booed, but he is nonetheless obliged to call it as he saw it, not as the home crowd wants him to call it."
My remarks this afternoon concentrate on judicial independence in the place I know best, the Third Branch of the U.S. Government, and on current threats to its vitality. Preliminarily, I will note a few, among many, distress signals from other lands.
Ruth Bader Ginsburg,
Judicial Independence: The Situation of the U.S. Federal Judiciary,
85 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol85/iss1/2