Judicial independence
Encyclopedia
Judicial Independence is the idea that the judiciary
needs to be kept away from the other branches of government. That is, court
s should not be subject to improper influence from the other branches of government
, or from private or partisan interests.
Different nations deal with the idea of judicial independence through different means of judicial selection, or choosing judge
s. One way to promote judicial independence is by granting life tenure
or long tenure for judges, which ideally frees them to decide cases
and make rulings
according to the rule of law
and judicial discretion
, even if those decisions are politically unpopular or opposed by powerful interests.
In some countries, the ability of the judiciary to check the legislature is enhanced by the power of judicial review
. This power can be used, for example, when the judiciary perceives that legislators are jeopardizing constitutional right
s such as the rights of the accused
.
studies such issues as the proper national wealth distribution including the government spending on the judiciary, which in many transitional and developing countries is completely controlled by the executive. The latter undermines the principle of powers' “checks and balances”, as it creates a critical financial dependence of the judiciary. It is important to distinguish between the two methods of corruption of the judiciary: the state (through budget planning and various privileges – being the most dangerous), and the private. The state corruption of the judiciary makes it almost impossible for any business to optimally facilitate the growth and development of national market economy.
has a level of judicial independence entrenched in its Constitution
, awarding superior court justices various guarantees to independence under sections 96 to 100 of the Constitution Act, 1867
. These include rights to tenure (although the Constitution has since been amended to introduce mandatory retirement at age 75) and the right to a salary determined by the Parliament of Canada
(as opposed to the executive). In 1982 a measure of judicial independence was extended to inferior courts specializing in criminal law
(but not civil law
) by section 11
of the Canadian Charter of Rights and Freedoms
, although in the 1986 case Valente v. The Queen
it was found these rights are limited. They do, however, involve tenure, financial security and some administrative control.
The year 1997 saw a major shift towards judicial independence, as the Supreme Court of Canada
in the Provincial Judges Reference
found an unwritten constitutional norm guaranteeing judicial independence to all judges, including civil law inferior court judges. The unwritten norm is said to be implied by the preamble
to the Constitution Act, 1867. Consequently, judicial compensation committees such as the Judicial Compensation and Benefits Commission
now recommend judicial salaries in Canada.
There are two types of judicial independence: institutional independence and decisional independence. Institutional independence means the judicial branch is independent from the executive and legislative branches. Decisional independence is the idea that judges should be able to decide cases solely based on the law and facts, without letting the media, politics or other concerns sway their decisions, and without fearing penalty in their careers for their decisions.
, independence of the judiciary has been the tradition since the territory became a British crown colony in 1842. After the 1997 return of Hong Kong to the People's Republic of China
independence of the judiciary, along with continuation of English common law
, has been enshrined in the territory's constitutional document, the Basic Law.
and its predecessor states, judicial independence emerged slowly in the United Kingdom. Under the Norman monarchy
of the Kingdom of England
, the king and his Curia Regis
held judicial power. Later, however, more courts were created and a judicial profession grew. In the fifteenth century, the king's role in this feature of government thus became small. Nevertheless, kings could still influence courts and dismiss judges. The Stuart dynasty used this power frequently in order to overpower Parliament
. After the Stuarts were removed in the Glorious Revolution
of 1688, some advocated guarding against royal manipulation of the judiciary. King William III
finally approved the Act of Settlement 1701
, which established tenure for judges unless Parliament removed them.
Under the unwritten
British Constitution
, there are two important conventions
which help to preserve judicial independence. The first is that Parliament
does not comment on the cases which are before the court. The second is the principle of parliamentary privilege
: That Members of Parliament
are protected from prosecution in certain circumstances by the courts.
In modern times, the independence of the judiciary is guaranteed by the Constitutional Reform Act 2005
, s.3. In order to try to promote the independence of the judiciary, the selection process is designed to minimize political interference. The process focuses on senior members of the judiciary rather than on politicians. Part 2 of the Tribunals, Courts and Enforcement Act 2007
aims to increase diversity
among the judiciary.
The pay of judges is determined by an independent pay review body. It will make recommendations to the government having taken evidence from a variety of sources. The government accepts these recommendations and will traditionally implement them fully. As long as judges hold their positions in "good order," they remain in post until they wish to retire or until they reach the mandatory retirement age of 70.
As of March 2008, the legal profession is self-regulating; it is responsible for implementing and enforcing its own professional standards and disciplining its own members. In this case, the bodies are the Bar Council
and the Law Society
. However, this self-regulation will come to an end when those bodies themselves come under the regulation of the Legal Standards Board, composed of non-lawyers, under the Legal Services Act 2007
.
of the United States Constitution
establishes the federal courts
as part of the federal government
.
The Constitution provides that federal judges
, including judges of the Supreme Court of the United States
, are appointed by the President
"by and with the advice and consent
of the Senate
." Once appointed, federal judges:
Federal judges vacate office only upon death, resignation, or impeachment and removal from office
by Congress
; only 13 federal judges have ever been impeached. The phrase "during good behavior" predates the Declaration of Independence. John Adams
equated it with quamdiu se bene gesserint in a letter to the Boston Gazette published on 11 January 1773, a phrase that first appeared in section 3 of the Act of Settlement 1701
in England.
The President is free to appoint any person to the federal bench, yet typically he consults with the American Bar Association
, whose Standing Committee on the Federal Judiciary rates each nominee "Well Qualified," "Qualified" or "Not Qualified." For instance, David Souter
was appointed in the Supreme Court by President George H. W. Bush
in 1990 but in Bush v. Gore
case in 2000 vote with minority against President George W. Bush
's legal position. It was specially mentioned in the book, written in Russian and bearing Souter's name in the title. Justice of the Constitutional Court of the Russian Federation
Yury Danilov, reviewing the book in a Moscow English-language daily, made the following remark on Souter's position in Bush v. Gore case: "In a most critical and delicate situation, David Souter had maintained the independence of his position and in this respect had become a symbol of the independence of the judiciary."
s and appellate court
s (including state supreme court
s), varying between states and sometimes within states. In some states
, judges are elected (sometime on a partisan ballot, other times on a nonpartisan
one), while in others they are appointed by the governor
or state legislature.
The 2000 case of Bush v. Gore
, in which a majority of the Supreme Court, including some appointees of President George H. W. Bush, over-ruled challenges to the election of the George W. Bush
then pending in the Florida Supreme Court
, whose members had all been appointed by Democratic governors, is seen by many as reinforcing the need for judicial independence, both with regard to the Florida Supreme Court and the US Supreme Court. This case has focused increased attention on judicial outcomes as opposed to the traditional focus on judicial qualifications.
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
needs to be kept away from the other branches of government. That is, court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
s should not be subject to improper influence from the other branches of government
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
, or from private or partisan interests.
Different nations deal with the idea of judicial independence through different means of judicial selection, or choosing judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s. One way to promote judicial independence is by granting life tenure
Life tenure
A life tenure or service during good behaviour is a term of office that lasts for the office holder's lifetime , unless the office holder is removed from office for cause under extraordinary circumstances or chooses to resign.Judges and members of some upper chambers have life tenure...
or long tenure for judges, which ideally frees them to decide cases
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
and make rulings
Court order
A court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...
according to the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
and judicial discretion
Judicial discretion
Judicial discretion is the power of the judiciary to make some legal decisions according to their discretion. Under the doctrine of the separation of powers, the ability of judges to exercise discretion is an aspect of judicial independence...
, even if those decisions are politically unpopular or opposed by powerful interests.
In some countries, the ability of the judiciary to check the legislature is enhanced by the power of judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
. This power can be used, for example, when the judiciary perceives that legislators are jeopardizing constitutional right
Constitutional right
An inalienable right is a freedom granted by a Nature or the Creator's endowment by birth , and may not be legally denied by that government.-United States:...
s such as the rights of the accused
Rights of the accused
The rights of the accused is a "class" of civil and political rights that apply to a person accused of a crime, from when he or she is arrested and charged to when he or she is either convicted or acquitted...
.
Economic basis
Constitutional economicsConstitutional economics
Constitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
studies such issues as the proper national wealth distribution including the government spending on the judiciary, which in many transitional and developing countries is completely controlled by the executive. The latter undermines the principle of powers' “checks and balances”, as it creates a critical financial dependence of the judiciary. It is important to distinguish between the two methods of corruption of the judiciary: the state (through budget planning and various privileges – being the most dangerous), and the private. The state corruption of the judiciary makes it almost impossible for any business to optimally facilitate the growth and development of national market economy.
Canada
CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
has a level of judicial independence entrenched in its Constitution
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
, awarding superior court justices various guarantees to independence under sections 96 to 100 of the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
. These include rights to tenure (although the Constitution has since been amended to introduce mandatory retirement at age 75) and the right to a salary determined by the Parliament of Canada
Parliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
(as opposed to the executive). In 1982 a measure of judicial independence was extended to inferior courts specializing in criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
(but not civil law
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
) by section 11
Section Eleven of the Canadian Charter of Rights and Freedoms
Section Eleven of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution's Charter of Rights that protects a person's legal rights in criminal and penal matters. This includes both criminal as well as regulatory offences, as it provides rights for those accused by...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, although in the 1986 case Valente v. The Queen
Valente v. The Queen
Valente v. The Queen, [1985] 2 S.C.R. 673 is a leading Supreme Court of Canada decision on protection of judicial independence under section 11 of the Canadian Charter of Rights and Freedoms.-Background:...
it was found these rights are limited. They do, however, involve tenure, financial security and some administrative control.
The year 1997 saw a major shift towards judicial independence, as the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
in the Provincial Judges Reference
Provincial Judges Reference
The Provincial Judges Reference [1997] 3 S.C.R. 3 is a leading opinion of the Supreme Court of Canada in response to a reference question regarding remuneration and the independence and impartiality of provincial court judges...
found an unwritten constitutional norm guaranteeing judicial independence to all judges, including civil law inferior court judges. The unwritten norm is said to be implied by the preamble
Preamble
A preamble is an introductory and expressionary statement in a document that explains the document's purpose and underlying philosophy. When applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the subject of the statute...
to the Constitution Act, 1867. Consequently, judicial compensation committees such as the Judicial Compensation and Benefits Commission
Judicial Compensation and Benefits Commission
The Judicial Compensation and Benefits Commission is a Canadian commission that recommends judicial salaries for federally appointed judges.The commission was created in 1999 by the government of Prime Minister Jean Chrétien, under the Judges Act...
now recommend judicial salaries in Canada.
There are two types of judicial independence: institutional independence and decisional independence. Institutional independence means the judicial branch is independent from the executive and legislative branches. Decisional independence is the idea that judges should be able to decide cases solely based on the law and facts, without letting the media, politics or other concerns sway their decisions, and without fearing penalty in their careers for their decisions.
Hong Kong
In Hong KongHong Kong
Hong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
, independence of the judiciary has been the tradition since the territory became a British crown colony in 1842. After the 1997 return of Hong Kong to the People's Republic of China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
independence of the judiciary, along with continuation of English common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, has been enshrined in the territory's constitutional document, the Basic Law.
United Kingdom
In the United KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
and its predecessor states, judicial independence emerged slowly in the United Kingdom. Under the Norman monarchy
Monarchy of the United Kingdom
The monarchy of the United Kingdom is the constitutional monarchy of the United Kingdom and its overseas territories. The present monarch, Queen Elizabeth II, has reigned since 6 February 1952. She and her immediate family undertake various official, ceremonial and representational duties...
of the Kingdom of England
Kingdom of England
The Kingdom of England was, from 927 to 1707, a sovereign state to the northwest of continental Europe. At its height, the Kingdom of England spanned the southern two-thirds of the island of Great Britain and several smaller outlying islands; what today comprises the legal jurisdiction of England...
, the king and his Curia Regis
Curia Regis
Curia regis is a Latin term meaning "royal council" or "king's court."- England :The Curia Regis, in the Kingdom of England, was a council of tenants-in-chief and ecclesiastics that advised the king of England on legislative matters...
held judicial power. Later, however, more courts were created and a judicial profession grew. In the fifteenth century, the king's role in this feature of government thus became small. Nevertheless, kings could still influence courts and dismiss judges. The Stuart dynasty used this power frequently in order to overpower Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
. After the Stuarts were removed in the Glorious Revolution
Glorious Revolution
The Glorious Revolution, also called the Revolution of 1688, is the overthrow of King James II of England by a union of English Parliamentarians with the Dutch stadtholder William III of Orange-Nassau...
of 1688, some advocated guarding against royal manipulation of the judiciary. King William III
William III of England
William III & II was a sovereign Prince of Orange of the House of Orange-Nassau by birth. From 1672 he governed as Stadtholder William III of Orange over Holland, Zeeland, Utrecht, Guelders, and Overijssel of the Dutch Republic. From 1689 he reigned as William III over England and Ireland...
finally approved the Act of Settlement 1701
Act of Settlement 1701
The Act of Settlement is an act of the Parliament of England that was passed in 1701 to settle the succession to the English throne on the Electress Sophia of Hanover and her Protestant heirs. The act was later extended to Scotland, as a result of the Treaty of Union , enacted in the Acts of Union...
, which established tenure for judges unless Parliament removed them.
Under the unwritten
Unwritten constitution
An uncodified or unwritten constitution is a constitution in which no single, formal document delineates the powers of a government, and the limits thereof...
British Constitution
Constitution of the United Kingdom
The constitution of the United Kingdom is the set of laws and principles under which the United Kingdom is governed.Unlike many other nations, the UK has no single core constitutional document. In this sense, it is said not to have a written constitution but an uncodified one...
, there are two important conventions
Constitutional convention (political custom)
A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states that follow the Westminster system and whose political systems derive from British constitutional law, most...
which help to preserve judicial independence. The first is that Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
does not comment on the cases which are before the court. The second is the principle of parliamentary privilege
Parliamentary privilege
Parliamentary privilege is a legal immunity enjoyed by members of certain legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made related to one's duties as a legislator. It is common in countries whose constitutions are...
: That Members of Parliament
Member of Parliament
A Member of Parliament is a representative of the voters to a :parliament. In many countries with bicameral parliaments, the term applies specifically to members of the lower house, as upper houses often have a different title, such as senate, and thus also have different titles for its members,...
are protected from prosecution in certain circumstances by the courts.
In modern times, the independence of the judiciary is guaranteed by the Constitutional Reform Act 2005
Constitutional Reform Act 2005
The Constitutional Reform Act 2005 is an Act of the Parliament of the United Kingdom. It provided for a Supreme Court of the United Kingdom to take over the existing role of the Law Lords as well as some powers of the Judicial Committee of the Privy Council, and removed the functions of Speaker of...
, s.3. In order to try to promote the independence of the judiciary, the selection process is designed to minimize political interference. The process focuses on senior members of the judiciary rather than on politicians. Part 2 of the Tribunals, Courts and Enforcement Act 2007
Tribunals, Courts and Enforcement Act 2007
The Tribunals, Courts and Enforcement Act 2007 is an Act of the Parliament of the United Kingdom. It provides for several diverse matters relating to the law, some of them being significant changes to the structure of the courts and fundamental legal procedures...
aims to increase diversity
Diversity (politics)
In the political arena, the term diversity is used to describe political entities with members who have identifiable differences in their backgrounds or lifestyles....
among the judiciary.
The pay of judges is determined by an independent pay review body. It will make recommendations to the government having taken evidence from a variety of sources. The government accepts these recommendations and will traditionally implement them fully. As long as judges hold their positions in "good order," they remain in post until they wish to retire or until they reach the mandatory retirement age of 70.
As of March 2008, the legal profession is self-regulating; it is responsible for implementing and enforcing its own professional standards and disciplining its own members. In this case, the bodies are the Bar Council
Bar council
A bar council , in a Commonwealth country and in the Republic of Ireland, the Bar Council of Ireland is a professional body that regulates the profession of barristers together with the King's Inns. Solicitors are generally regulated by the Law society....
and the Law Society
Law society
A Law Society in current and former Commonwealth jurisdictions was historically an association of solicitors with a regulatory role that included the right to supervise the training, qualifications and conduct of lawyers/solicitors...
. However, this self-regulation will come to an end when those bodies themselves come under the regulation of the Legal Standards Board, composed of non-lawyers, under the Legal Services Act 2007
Legal Services Act 2007
The Legal Services Act 2007 is an Act of the Parliament of the United Kingdom that seeks to liberalise and regulate the market for legal services in England and Wales, to encourage more competition and to provide a new route for consumer complaints...
.
Federal courts
Article IIIArticle Three of the United States Constitution
Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress.-Section 1: Federal courts:...
of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
establishes the federal courts
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
as part of the federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
.
The Constitution provides that federal judges
United States federal judge
In the United States, the title of federal judge usually means a judge appointed by the President of the United States and confirmed by the United States Senate in accordance with Article II of the United States Constitution....
, including judges of the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
, are appointed by the President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
"by and with the advice and consent
Advice and consent
Advice and consent is an English phrase frequently used in enacting formulae of bills and in other legal or constitutional contexts, describing a situation in which the executive branch of a government enacts something previously approved of by the legislative branch.-General:The expression is...
of the Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
." Once appointed, federal judges:
Federal judges vacate office only upon death, resignation, or impeachment and removal from office
Impeachment in the United States
Impeachment in the United States is an expressed power of the legislature that allows for formal charges against a civil officer of government for crimes committed in office...
by Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
; only 13 federal judges have ever been impeached. The phrase "during good behavior" predates the Declaration of Independence. John Adams
John Adams
John Adams was an American lawyer, statesman, diplomat and political theorist. A leading champion of independence in 1776, he was the second President of the United States...
equated it with quamdiu se bene gesserint in a letter to the Boston Gazette published on 11 January 1773, a phrase that first appeared in section 3 of the Act of Settlement 1701
Act of Settlement 1701
The Act of Settlement is an act of the Parliament of England that was passed in 1701 to settle the succession to the English throne on the Electress Sophia of Hanover and her Protestant heirs. The act was later extended to Scotland, as a result of the Treaty of Union , enacted in the Acts of Union...
in England.
The President is free to appoint any person to the federal bench, yet typically he consults with the American Bar Association
American Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
, whose Standing Committee on the Federal Judiciary rates each nominee "Well Qualified," "Qualified" or "Not Qualified." For instance, David Souter
David Souter
David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
was appointed in the Supreme Court by President George H. W. Bush
George H. W. Bush
George Herbert Walker Bush is an American politician who served as the 41st President of the United States . He had previously served as the 43rd Vice President of the United States , a congressman, an ambassador, and Director of Central Intelligence.Bush was born in Milton, Massachusetts, to...
in 1990 but in Bush v. Gore
Bush v. Gore
Bush v. Gore, , is the landmark United States Supreme Court decision on December 12, 2000, that effectively resolved the 2000 presidential election in favor of George W. Bush. Only eight days earlier, the United States Supreme Court had unanimously decided the closely related case of Bush v...
case in 2000 vote with minority against President George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
's legal position. It was specially mentioned in the book, written in Russian and bearing Souter's name in the title. Justice of the Constitutional Court of the Russian Federation
Constitutional Court of the Russian Federation
The Constitutional Court of the Russian Federation is a high court which is empowered to rule on whether or not certain laws or presidential decrees are in fact contrary to the Constitution of Russia...
Yury Danilov, reviewing the book in a Moscow English-language daily, made the following remark on Souter's position in Bush v. Gore case: "In a most critical and delicate situation, David Souter had maintained the independence of his position and in this respect had become a symbol of the independence of the judiciary."
State courts
State courts deal with independence of the judiciary in many ways, and several forms of judicial selection are used for both trial courtTrial court
A trial court or court of first instance is a court in which trials take place. Such courts are said to have original jurisdiction.- In the United States :...
s and appellate court
Appellate court
An appellate court, commonly called an appeals court or court of appeals or appeal court , is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal...
s (including state supreme court
State supreme court
In the United States, the state supreme court is the highest state court in the state court system ....
s), varying between states and sometimes within states. In some states
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
, judges are elected (sometime on a partisan ballot, other times on a nonpartisan
Nonpartisan
In political science, nonpartisan denotes an election, event, organization or person in which there is no formally declared association with a political party affiliation....
one), while in others they are appointed by the governor
Governor (United States)
In the United States, the title governor refers to the chief executive of each state or insular territory, not directly subordinate to the federal authorities, but the political and ceremonial head of the state.-Role and powers:...
or state legislature.
The 2000 case of Bush v. Gore
Bush v. Gore
Bush v. Gore, , is the landmark United States Supreme Court decision on December 12, 2000, that effectively resolved the 2000 presidential election in favor of George W. Bush. Only eight days earlier, the United States Supreme Court had unanimously decided the closely related case of Bush v...
, in which a majority of the Supreme Court, including some appointees of President George H. W. Bush, over-ruled challenges to the election of the George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
then pending in the Florida Supreme Court
Florida Supreme Court
The Supreme Court of the State of Florida is the highest court in the U.S. state of Florida. The Supreme Court consists of seven judges: the Chief Justice and six Justices who are appointed by the Governor to 6-year terms and remain in office if retained in a general election near the end of each...
, whose members had all been appointed by Democratic governors, is seen by many as reinforcing the need for judicial independence, both with regard to the Florida Supreme Court and the US Supreme Court. This case has focused increased attention on judicial outcomes as opposed to the traditional focus on judicial qualifications.
See also
- CorruptionPolitical corruptionPolitical corruption is the use of legislated powers by government officials for illegitimate private gain. Misuse of government power for other purposes, such as repression of political opponents and general police brutality, is not considered political corruption. Neither are illegal acts by...
- Rule of lawRule of lawThe rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
- Rule According to Higher LawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...
- Constitutional economicsConstitutional economicsConstitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- JudiciaryJudiciaryThe judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
- Judiciary in Russia
- Judicial reformJudicial ReformJudicial reform is the complete or partial political reform of a country's judiciary. Judicial reform is often done as a part of wider reform of the countrys political system or a legal reform....
- Separation of powersSeparation of powersThe separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
External links
- Independence of the judicial system Part I. The Independence of Judges Part II - the Prosecution Service Venice CommissionVenice CommissionThe Venice Commission is an advisory body of the Council of Europe, composed of independent experts in the field of constitutional law. It was created in 1990 after the fall of the Berlin wall, at a time of urgent need for constitutional assistance in Central and Eastern Europe...
, 2010