Independent Judges and Independent Justice

Abstract

American judges come from a long tradition of judicial independence, even when the formal British regime curtailed that independence. For example, English judges had no independence before 1701-and not much after that date. There was no practice of judicial review; judges did not strike down legislative enactments. The classic description of legislative omnipotence was that [a]n act of parliament can do no wrong, although it may do several things that look pretty odd.2 Nevertheless, even against this background of judicial dependence, there were examples of judges refusing to bend to parliamentary will. In 1649, Parliament impeached, convicted, and executed Charles I. Although there were no precedents and no procedures for such an action-and history has subsequently judged it as lawless-Parliament tried to make the proceedings conform to at least the forms of justice. They sought out the highest judges in England to preside over the trial: the Lord Chief Justice of England, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer. All three refused, and Parliament eventually chose an obscure local jurist, who no doubt contributed to the proceeding's historical disrepute.3