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12/17/2021

Scott Gerber on the Supreme Court Commission Report
Michael Ramsey

At The Hill, Scott Gerber (Ohio Northern): The Presidential Commission on the Supreme Court failed the president,  From the core of the argument: 

What I found most troubling about the commission’s report was how superficial the discussion of judicial independence was. 

...

Most tellingly, the report fails to note that an independent judiciary is the American contribution to separation of powers theory. John Adams was the American founding’s most sophisticated political theorist and when he modified Montesquieu’s conception of the separation of powers by developing what can be fairly termed the political architecture of an independent judiciary, he articulated an idea that helped make possible the court’s power to void laws that conflict with the Constitution. Adams’s contribution to the notion that all government power must be checked and balanced is arguably as significant as that of the French baron whose work inspired him and the other American Founders.

Adams published his most systematic statement about judicial independence in his 1776 pamphlet “Thoughts on Government.” The pamphlet — a clarion call for separation of powers written in response to Thomas Paine’s recommendation in "Common Sense," during the initial rush of state constitution-making, that all government power be vested in a unicameral legislature — insisted that “The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that.”

Adams recommended that judges be “nominated and appointed by the governor, with the advice and consent of council.” However, he argued for more than merely making the judiciary a separate branch of government. He called for stable judicial compensation and tenure so long as judges behave well: “[T]hey should hold estates for life in their offices; or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law.” Adams also insisted that judges who misuse their offices should be impeached by the “house of representatives … before the governor and council” and, “if convicted, should be removed.”

Adams was serving as a diplomat in England during the framing of the federal Constitution of 1787. Although the Constitution excluded the president from participating in the impeachment of other government officials, it otherwise contained principles identical to Adams’s proposal, which was widely known by the delegates to the constitutional convention that met in Philadelphia: The Supreme Court is a separate branch of government, the justices enjoy life tenure during good behavior, and their salaries cannot be diminished while they are in office.

... Suffice it to say that because the commission’s report says almost nothing about the origins of judicial independence in America, I must regrettably join the chorus that considers the commission to have failed the president.

I agree this is a fair criticism of the first part of the report, although I don't agree that it goes so far as to make the report as a whole a failure.  The report notes that individual commissioners, though voting to approve the report as a whole, may well have felt that they would have written some parts of it differently.  This is a part I would have written differently. 

(Also, as an aside, the independent judiciary isn't solely an American/Adams-ian idea -- the separation of the executive and the judiciary in Anglo-American practice began with the Act of Settlement in 1701, which gave English judges lifetime tenure during good behavior rather than merely at the king's pleasure.  Blackstone [v.1, p. 258 of the Commentaries] describes the Act as securing the "dignity and independence of the judges.")

UPDATE:  Professor Gerber comments:

Re: your comments about Blackstone. Here is my short take on the intellectual history (it's from a Green Bag micro-symposium).  My book A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 (Oxford Univ. Press) addresses the question in detail.