Dependence on Judicial Independence

​By Rachel Pomerantz

Rachel Pomerantz is a rising sophomore at the University of Pennsylvania

Louis XIV once said, “Laws are the sovereigns of sovereigns.” No matter who you are, the law applies to you. But that is not an automatic process: Judges and justices oversee the judicial process along and are crucial stewards of the impartiality of that process.
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Over the past few months, the court of public opinion considered two cases that pondered the judgement of the judges making decisions. On the one hand, politicians began the familiar dance of distancing themselves from presumptive Republican nominee Donald Trump’s recent spat of word vomit: In relation to the class-action lawsuit against Trump University, a for-profit company that defrauded thousands of customers, Donald Trump accused the judge presiding over the case, Gonzalo Curiel, of biasing his decisions (or, in Trump vernacular, of being “a hater of Donald Trump”) because he is Mexican. [1]

Unlike some of Trump’s past comments, this analysis of his current legal situation drew universal rebuke from Democrats and Republicans alike, so it’s almost repetitive to lay out, as Speaker Ryan put it, how this is the “textbook definition of racist comment.” [2] However, I will say that there is something deeply wrong with challenging the judge’s rulings. Though for too long a vast swath of Americans - people of color, women, those with disabilities, etc. - were not able to access it, the crux of the American dream and experiment is that who you are is not a barrier to how far you can go in this country. To suggest that someone’s perceived ethnicity prevents that person from possessing the central qualification of a judge, the ability to independently reach fair decisions, contradicts this profound yet simple ideal that many consider central to the American identity.  

On the other hand, liberal icon Ruth Bader Ginsburg, Associate Justice on the Supreme Court, drew criticism for her strong sentiments on the possibility of a Trump presidency. She told the New York Times that she “can’t imagine what this place would be -- I can’t imagine what the country would be -- with Donald Trump as our president” and implied that the Supreme Court would be negatively impacted for years to come after a Trump presidency. [3] It took no one who has a passing familiarity with her, affectionately nicknamed Notorious RBG by the Internet, by surprise that Justice Ginsburg, a pioneering women’s rights lawyer and activist, strongly dislikes and is fearful of a man who repeatedly expresses misogynistic, racist, and xenophobic sentiments and policies. [4]

​However, it was improper for Justice Ginsburg to make these comments. They taint the important concept of judicial independence. Imagine the possibility that this election (think of a replay of a Bush v. Gore), one of Trump’s civil cases, or a new controversy involving a President Trump goes to the Supreme Court. The ensuing calls for Ginsburg to recuse herself will not be completely outside of the realm of reasonableness - she has publically stated that she cannot imagine the possibility of Trump as president.  Judges must be above reproach. Even if an actual bias or perceived bias does not shade the judge’s decision, plaintiffs and defendants have a reasonable expectation that judges will treat them fairly when they appear in a court of law.

Which brings us back to the fundamental question of what is judicial independence. In the two prior cases, it is evident that there should be some degree of separation between a judge’s personal opinion and opinion about the law. What kind of independence is this? We certainly don’t want judges independent of facts, research, and the realities of the real world. Law cannot survive as solely a creature of the theoretical world. Judges can and should consider the practical implication of their reasonings and decisions. In fact, legal definitions are predicated on such practicality.

An independent judiciary is perhaps the epitome of the philosophy underlying representative democracy. Even if we had the best education system in the world (a necessary goal that requires significantly more work), we do not reasonably expect the average citizen to understand the intricacies of contract law or the RICO Act. There is room for reform and simplification of federal and state laws, but it is hard to imagine a legal code that is sufficient to account for the nuances of a large, complex economic and political superpower but at the same time is simple enough for every American to understand. Therefore, we appoint or elect (which is a separate, problematic issue deserving its own treatment) judges to be experts of the law.

That isn’t to say that legal decisions could ever be divorced from experience and context, but that process must be fairly applied. As an undergraduate student, I am no expert in the law, but I have to have faith that a judge I come in contact with not only a knowledgeable judge but also one that will not prejudge my case based on who I am or who the judge is. In order for that expertise to be fully accessible, it must be impartial.


[1] Editorial Board, “Donald Trump and the Judge,” New York Times, May 31, 2016, accessed July 11, 2016, http://www.nytimes.com/2016/06/01/opinion/donald-trump-and-the-judge.html.
[2] Heather Caygle, “Ryan: Trump’s comments ‘textbook definition’ of racism,” Politico, June, 7, 2016, accessed July 12, 2016, http://www.politico.com/story/2016/06/paul-ryan-trump-judge-223991
[3] Christine Rushton, “Justice Ginsburg ‘can’t imagine’ a Supreme Court under a Trump presidency,” Los Angeles Times, July 11, 2016, accessed July 11, 2016, http://www.latimes.com/politics/la-na-trailguide-updates-rbg-can-t-imagine-a-supreme-court-1468243468-htmlstory.html
[4] Jordan Fabian, “White House: Ginsburg ‘didn’t earn the nickname the Notorious RBG for nothing’,” The Hill, July 13, accessed July 13, 2016, http://thehill.com/blogs/blog-briefing-room/news/287563-white-house-ginsburg-didnt-earn-the-nickname-the-notorious-rbg

Photo Credit: Flickr User Gage Skidmore

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