In Brennan Lecture, Texas Supreme Court Chief Justice Nathan Hecht focuses on imperiled judicial independence

Current threats to judicial independence were the subject of the Institute of Judicial Administration‘s 25th annual Brennan Lecture on State Courts and Social Justice, delivered on March 6 by Chief Justice Nathan Hecht of the Texas Supreme Court.

Nathan L Hecht speaking at lectern
Nathan Hecht

Hecht pointed to a long line of US presidents who have publicly criticized the judiciary, from Donald Trump and Barack Obama to Franklin Roosevelt, and all the way back to Thomas Jefferson. Last November, when Trump denounced Judge Jon Tigar of the US District Court for the Northern District of California as an “Obama judge,” Chief Justice John Roberts of the US Supreme Court issued a rare public defense of the judiciary’s independence. 

Criticism from the executive branch, Hecht argued, is not the biggest threat to US judges. The pressures exerted by political polarization, he suggested, constitute a greater hazard, whether in increasingly contentious confirmation hearings or in state-level elections. 

Texas is one of a few states that select judges through partisan elections, a practice Hecht has long opposed. But the nonpartisan judicial elections conducted by most states are not necessarily a complete safeguard, he said, invoking a 2012 study that concluded those elections still put pressure on judges to yield to popular opinion on hot-button issues.

In the end, Hecht asserted, attempts such as Roberts’s to defend the judiciary from attacks from other branches of government will be perceived as self-interested. “Self-defense necessarily draws the judiciary into the very political arena it is trying to avoid,” said Hecht. 

Lawyers on the other side of the bench must step in, he said: “People are perfectly free to criticize judicial decisions with which they disagree, but leaders in the executive and legislative branches have loud voices augmented by the media’s megaphone, especially social media’s. The profession must be as effective in cautioning the public against public officials’ denigrations of the third branch that, if effective, will deny people the protections of an independent judiciary.”

Select quotes from the lecture:

“The executive and the legislature must uphold the Constitution, of course, but they must also answer for representing their constituents, for shaping and effectuating the popular will. Judges have no constituencies. They account to the people for their adherence to the rule of law. When judges follow the law, even against the popular will of the time—actually, especially against the popular will of the time—they have done their job.”

“Are the pressures of today’s politics forcing more state judges to yield to the temptation always to be looking over their shoulders for how a decision will be perceived? Even when some judges have won, have others, as opponents have said, learned their lesson? If only one in a thousand people walking along a street is shot at, you still think about taking another street.”

“Whenever a case requires a court to wade into politically charged waters, the court should do so with reluctance rather than glee. And that should be front and center in the court’s opinion. The hot-button case requires the judge to write, to convince, not merely to decide…. An umpire who justifies his call because he’s the umpire is not as well respected as the umpire who explains why any umpire would have made the same call.” 

Follow Chief Justice Nathan Hecht's full remarks on video (57 min):

Posted April 3, 2019