Silencing an Independent and Impartial Judiciary: Can This Possibly Occur in Texas? By Justice Patricia O’Connell Alvarez
Framing the Inquiry Judges are required to maintain their independence from the other two branches of government. This is necessary because the judiciary is charged with policing the other branches so they do not abuse their power. An independent judiciary has been the most admired facet of American government. It represents a “worldwide movement toward a realization that people’s liberty and their prosperity depend in part upon strong judicial institutions.”1 When judges fail to do their jobs, or if the other two branches of government leverage enough influence or power to undermine an independent judiciary, then the Rule of Law is threatened, and democracy disappears. Other democracies have suffered such a democratic devolution. Two examples are Hungary and Poland, whose democracies eroded when their leaders eliminated the judiciary’s role as the guardian of the separation of powers and the Rule of Law. Could it happen in Texas? Well, it’s happening around the world, so why not in Texas? How can we prevent this from even being contemplated in Texas?
Introduction There is a worldwide concern that democracies are dying, and there is a sincere belief that the United States is heading in the same direction.2 In the democracies that have already fallen, we see examples of those that fell instantly and those that failed over time. Examples of instant death by military coup d’état or by military coercion include Chile, Argentina, Guatemala, Pakistan, Ghana, Greece, Turkey and—more recently— Thailand. Examples of democratic death that occurred over time include 8 San Antonio Lawyer® | sabar.org
Venezuela, Peru, Hungary, and Poland. These deaths occurred at the hands of democratically elected leaders—that is, presidents, prime ministers, or parties who subverted the very process that brought them to power, such as Hugo Chavez in Venezuela, Alberto Fujimori in Peru, Viktor Orbán in Hungary, and the Law and Justice Party in Poland. I should also mention that Germany suffered a relatively fast democratic death at the hands of Adolf Hitler in the wake of the 1933 Reichstag fire in Germany, although it later recovered. Such leaders did not initially project themselves as autocratic. They only revealed themselves as such after they dismantled the democratic systems they led. This process is known as “democratic erosion”—“the slow but substantial decay of all three of the institutional prerequisites of [a] constitutional democracy.”3 One way a democracy erodes is when leaders or political parties first attack, and then eliminate, the judiciary’s independence. Is the threat of “democratic erosion” by eliminating the judiciary’s independence viable in Texas? What can we, as Texans, do to prevent this from ever happening? To answer these questions, my starting point is to define the judiciary’s role in a democracy.
What Is the Role of the Judiciary in a Democracy? In a democracy, the role of the judiciary is to enforce laws and protect the Rule of Law through its power of judicial review, all the while remaining autonomous and independent.4 To fully capture what a judge’s role means in a democracy, I will attempt to give concrete definitions of these terms: “democracy,” “the Rule of Law,” “judicial review,” and “judicial independence.”
