Judicial independence: The new threat from within

By Judge Steve Leben and Judge Kevin S. Burke

Judge Steve Leben

In election years, judges frequently come under attack for a specific decision. And since judges generally can’t comment publicly about pending cases beyond what was said in the decision itself, judges can be an easy target.

But something strange is happening as the 2012 presidential campaign comes into focus: In two high-profile court hearings, judges have struck what seems to be a partisan tone, unnecessarily inserting themselves into the campaign. Their actions from inside the judiciary threaten judicial independence just as much as attacks from the outside.

The first was U.S. Supreme Court Justice Antonin Scalia. During oral argument about whether the Affordable Care Act is unconstitutionally coercive on the states, he asked whether there was “any chance that all 26 states opposing it have Republican governors, and all of the states supporting it have Democratic governors?” When told there was “a correlation,” Justice Scalia triumphantly said, “Yes!” followed by laughter from the audience. Scalia got his laugh line — transcripts show he gets more laughs than any other justice. But here he did so by inserting a comment about purely partisan matters that had no legal relationship to the argument being made.

Use of ‘kickback’ phrase

Judge Kevin S. Burke

Justice Scalia later made reference to “the Cornhusker kickback” in asking a question about whether the entire healthcare law must be struck down if one part is found invalid. Using the term “kickback” in reference to a provision that purportedly gave federal benefits to a state (Nebraska) in exchange for its senator’s vote sounded more like a political attack ad than the sort of question a neutral judge would ask. This too was an unnecessary comment: The provision he referenced hadn’t ultimately taken effect and thus wasn’t part of the statute before the court. The full article appears today in MinnPost which can be found at:

http://www.minnpost.com/community-voices/2012/05/judicial-independence-new-threat-within. The Commentary originally appeared in Judicature which is the publication of the American Judicature Society.