• During the just-concluded Utah legislative session, some lawyers and judges expressed concern that bills the Legislature considered would have threatened judicial independence.
• Judicial independence ensures justices can faithfully guard our Constitution and the laws made according to its authority.
• Clear constitutional separations of powers ensure judicial independence. Still, it can be undermined by transgressing these limits, attempts to denigrate judges over policy disagreements, and by judges replacing interpretation of the text with policymaking.
• Whatever the merits of the bills the Legislature considered during its session, they did not threaten judicial independence as great as the threat from court decisions beyond clear textual interpretation.

A major controversy in Utah’s recently concluded legislative session centered on proposed reforms to the state’s judicial system. Only one of the bills was approved. It allows the governor to nominate the chief justice of the Utah Supreme Court. The other bills would have increased the number of justices on the Court, made it easier to remove judges in retention elections, and a handful of other changes.

The bills caused concern in some quarters, with a specific claim that legislative changes that might impact the courts threaten “judicial independence.” That charge was serious because the independence of judges is a cornerstone of our legal system.

This is why the U.S. Constitution provides for lifetime appointments of judges (absent removal for impeachable offenses) and prevents Congress from diminishing the salary of sitting judges.

What does the Utah Constitution say?

Only one state has adopted the practice of lifetime appointment, but the principle of judicial independence is also critical in the state courts. States try to protect this principle in their state constitutions, though they have chosen a variety of approaches.

Utah’s Constitution, for instance, specifies that:

• the Legislature cannot change the makeup of the judiciary in a way that removes a judge from office during their term of service,
• legislators cannot sit on the commission that nominates judges for the governor’s consideration for appointment,
• “Selection of judges shall be based solely upon consideration of fitness for office without regard to any partisan political consideration.”
• judicial retention elections have to be “held on a nonpartisan ballot,”
• judges cannot hold elective office or serve in a political party, and
• the Legislature cannot diminish the salary of a judge while in office.

It is important to note that judicial independence does not mean that the other branches do not influence the judiciary. As the Constitution states, the governor appoints judges, and the state Senate confirms them before they can serve. The state Constitution also gives power to the Legislature to:

• determine the number of lower court judges and justices on the state supreme court,
• amend procedural rules,
• create the Judicial Conduct Commission that hears complaints against judges,
• set the compensation for judges,
• provide for the mandatory retirement of judges and
• impeach and remove

In addition, judges are subject to periodic retention elections in which voters determine whether the judge will continue to serve.

What is judicial independence, and why is it important?

As illustrated by the federal and state constitutional protections, judicial independence is the principle that judges faithfully apply the laws enacted by the people and their representatives without external pressures. It does not mean that citizens, government officials and other judges cannot criticize the reasoning of a judge’s opinions or rulings, but elected officials cannot remove a judge from office for their actions in office absent some misconduct. In Utah, however, voters who disagree with a judge’s approach to the law can vote for that judge’s removal.

Judicial independence means that judges are not to be partisan, working for some end extraneous to their responsibility to the judicial office of applying existing laws. This can be a challenging responsibility because a judge may not like a constitutional provision, a law enacted by the Legislature, or the application of that law in specific instances. In these cases, the judge must still apply the law, however personally distasteful he or she may find it.

A recent U.S. Supreme Court decision is a good illustration of the importance of judicial independence.

In Loper-Bright v. Raimondo, the Court had to determine whether to retain a longstanding practice whereby federal courts would defer to a federal administrative agency’s conclusion about the meaning of statutes passed by Congress, which the agency was responsible for enforcing. The Court rejected this practice because the Constitution gave the judicial branch the responsibility to interpret laws, and “the Framers structured the Constitution to allow judges to exercise that judgment independent of influence from the political branches.”

Since the judiciary must exercise independent judgment, it cannot delegate that authority to another branch of government by routinely accepting that branch’s interpretation of the law, absent the judges’ independent conclusion that the latter interpretation is correct.

Judicial independence thus protects the Constitution’s integrity by ensuring that judges make decisions based on its provisions rather than on political pressures or personal preferences. The same is true for the laws enacted by the Legislature. Those laws, rather than the desired outcomes of advocates or even the judges themselves, are sacrosanct when judges recognize and diligently try to interpret and apply the law without worrying about extraconstitutional retribution.

What are some threats to judicial independence?

Judicial independence is threatened when the executive or legislative branches try to secure a particular result through means prohibited by the Constitution – such as removing justices in office (who are not guilty of misconduct) for their opinions or trying to cut their salaries.

Actions by the political branches don’t have to be strictly illegal to threaten judicial independence, though. Thinly veiled threats of violence or retribution by elected officials against judges who disagree threaten judicial independence. So do false and frivolous accusations of misconduct by these officials. The media, too, can fuel these irresponsible accusations by mischaracterizing judges’ actions or rulings.

There is another potential threat to judicial independence that may initially seem surprising because it comes from within the judiciary itself. As Justice Antonin Scalia and Bryan Garner explained, “When judges fashion law rather than fairly deriving it from governing texts, they subject themselves to intensified political pressures.” Politicians and advocacy groups see such judges as potential collaborators in lawmaking and thus are implicitly invited to influence their rulings.

In sum, elected officials and others can threaten judicial independence by transgressing constitutional protections of that independence and through direct attacks and threats (including to the reputation of a judge) intended to influence a judge’s opinions. So do judicial decisions that import extraneous considerations into interpreting legal texts by inviting political influence into the judicial endeavor.

Good faith criticism of a specific holding or efforts consistent with the Constitution (like questioning in a confirmation hearing) to understand the judge’s philosophy as an elected official when considering the nomination of a judge would not threaten that independence. Nor would constitutional changes to laws that the people and their representatives initiate to correct what they believe are judicial mistakes.

Is judicial independence at risk in Utah?

Returning to the concerns raised about recent legislative efforts impacting Utah’s courts, the Utah State Bar Commission alleged that several bills the Legislature considered threaten judicial independence.

Using the above-mentioned criteria, most did not appear to rise to that level.

For instance, one bill would have established legal standards for when someone not directly impacted by a law can challenge it in court. Another would have changed the time limit for seeking a court injunction to prevent a law going into effect. A third addressed what information is available to state auditors. These legal changes are the province of the Legislature under state law. They may impact the courts and may or may not be good policy, but they do not rob the courts of judicial independence.

It was also a stretch to argue that judicial independence is undermined by allowing legislators to ask questions of judges in confirmation hearings or to consider factors other than the reports of the Judicial Performance Evaluation Commission. These reports contain helpful information about the attitudes of attorneys and litigants about judges. Still, they do not address clearly relevant information, such as a judge’s approach to the responsibility of interpreting the Constitution and laws, specifically whether the prospective judges would allow extraneous considerations such as policy preferences or a desire to effectuate higher principles not contained in the legal text to influence his or her decisions.

Likewise, allowing the governor to appoint the chief justice (a bill that did pass) does not rise to the level of a threat to the judiciary. It follows the federal pattern and is the approach of more than a dozen other states. It may be debatable as a policy matter but is not inherently harmful to an independent judiciary.

There are details of other bills the Bar opposed that are worth debating. For instance, it is unclear why raising the threshold for voter retention would have been necessary. Still, the bills complained about did not establish the existence of a concerted attack on the judicial branch in Utah.

What is the role of recent Utah court decisions in this debate?

The elephant in the room in this discussion is a recent Utah Supreme Court decision that some legislators have criticized. The subtext of the recent criticisms of the Legislature by some lawyers and judges seems to be a perception that the bills considered by this Legislature are inappropriate attempts to get back at the Court for its ruling.

It is important to reiterate that disagreements about a court’s rulings do not threaten judicial independence. Courts can make mistakes, and many decisions are recognized as landmarks because they corrected prior mistaken decisions.

In this case, there are legitimate concerns that the Court sublimated clear constitutional text that gives the state Legislature the power to make laws to an unwritten meta-principle of ensuring that voters’ subjective intent (as determined by judges) prevails.

The Legislature is free to question the propriety of this type of reasoning, given that it is arguably at odds with the role of judges in our constitutional system. Disagreement is not an attack on the courts, but it may be a positive step in reclaiming that independence by encouraging the justices to eschew “fashioning law.”

Conclusion

It is good to see Utah lawyers and judges attuned to attacks on the judicial system. While recent criticisms of the Utah Legislature’s approach may have been overstated, there have been and still are threats at the national level that are far more serious.

These range from literal threats of violence directed towards justices, to a presidential plan to impose term limits in direct contravention of the Constitution, to frivolous accusations of impropriety launched at justices whose commitment to the actual Constitution has hampered some ideological goals. These threats would be a better subject of concern for the legal profession.

Good faith efforts to ensure that judges don’t lose sight of their “duty as faithful guardians of the Constitution” do not threaten judicial independence. That critical principle is more likely to be threatened when any branches of government, including the judiciary, believe the role of judges is to secure results that the texts of the Constitution and the laws made according to its authority do not clearly provide.