The First Amendment and Judicial Independence: an Uneasy Coexistence

The First Amendment and judicial independence – both prized pieces of American democracy – have an uneasy coexistence these days.

Many states elect their trial judges and the justices of their highest courts, and in some states, like West Virginia, big-money corporate interests have waged expensive campaigns to elect or defeat Supreme Court justices. John Grisham’s “The Appeal” offers a gripping tale about a fictional – but plausible – attempt to “buy” a seat on the Mississippi Supreme Court and swing the outcome of a pending case. In California this year, opponents of the California Supreme Court’s gay marriage ruling are likely to accuse the court of “judicial activism” in a multi-million dollar attempt to reverse its ruling.

The First Amendment protects these attacks on the courts, and it protects judges’ attempts to defend themselves. That much is clear from a U.S. Supreme Court case called Republican Party of Minnesota v. White. But there’s something unseemly, and deeply disturbing, about politicizing the courts. Judges and appellate court justices are supposed to be like umpires, calling balls and strikes, not playing for one team or the other. If they are dragged into political fights and have to raise and spend millions of dollars from the very people who have cases before them to defend themselves, the quality of justice suffers, the impartiality of the courts is imperiled, and public confidence in the courts takes a hit.