25 minute read
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 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.”
What Is the Meaning of “Democracy”?
The word “democracy” comes from two Greek words: “demos,” meaning “people”; and “kratein,” meaning “to rule.” 5 Interestingly, the term means different things to different people. Minimally, it means free and fair elections involving two or more political parties. To some, including Abraham Lincoln, “democracy” meant a “government of the people, by the people, and for the people.” 6 To others, “democracy” means freedom and liberty. 7 And, to still others, “democracy” is equated to economic values of prosperity, equality, and security. 8
For our purposes here, the best definition is the one asserted by legal scholars. They define the term “democracy” as a system that: (1) has a strong administration of the Rule of Law; (2) has a free and fair election process involving two or more legitimate political parties; and (3) possesses a system of judicial review by an autonomous and independent judiciary to effectuate checks and balances. 9
What is the Meaning of “the Rule of Law”?
For the past few years, we have read or heard something nearly daily referencing the Rule of Law. We read reports about the former President’s disdain for and assault on the Rule of Law.10 We also read disturbing questions about the conditions of, nature of, and threats to the Rule of Law by worldwide leaders.11 We have likewise heard American politicians referring to “the Rule of Law” as a fundamental basis for their concerns about the state of our democracy. They have either claimed that the Rule of Law is broken, that the Rule of Law no longer exists, or that the Rule of Law must be saved.12 There has been a surge of books by respected scholars warning of threats to democracy and the Rule of Law.13 Major newspaper editorials likewise urge government agencies “to restore respect for the Rule of Law, [because] no one, not even a former President, can be above it.”14
So, what is the Rule of Law? Is it a country’s constitution? Or is it a country’s body of law? Does it imply an ideal or a principle? Better yet, is it a moral compass for how the law should be applied? Is it all in one? Or is it only a series of procedures that a country must follow? The answer lies in what the Rule of Law is not. The Rule of Law is not a law or a set of rules enacted by a state (i.e., the constitution, statutes, jurisprudence, etc.). The Rule of Law is not the “rule of men.” The “rule of men” refers to “the sheer will (desire) of someone or some group of people with power,” who rule arbitrarily to serve their own interests and desires.15 The “rule of men” is a “situation where a state is dominated by a person or a group of people (e.g., “aristocrats,” “whites,” “men,” a political party), who use the power of the state to reinforce their continued dominance.”16 The “rule of men” is synonymous with anarchy and tyranny.17
By contrast, the Rule of Law “depends on certain aspects of official conduct and the life of the community being ruled in a way that distinguishes the rule of law from its two antitheses: anarchy and government by arbitrary use of power.”18 When a tyrant, a despot, or an authoritarian leader or regime ignores a provision of a legally binding treaty or a country’s constitution, or snubs some other law, there is no meaningful Rule of Law.19 Based on what the Rule of Law is not, we can deduce that the general purpose of the Rule of Law is to: (1) protect against anarchy and war against all; (2) allow people to plan their affairs with reasonable confidence; and (3) guarantee against at least some types of official arbitrariness.20 To effectuate this purpose, the Rule of Law must be clear, stable, with authority over officials and citizens alike (not a rule of a few men, but a rule of government), with its enforcement part of an impartial and independent judiciary.21
What is the Meaning of “Judicial Review”?
For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”22
Judicial review is the implicit constitutional power of courts to hold both the executive and legislative branches of government accountable by reviewing their actions for compliance with the Constitution and existing laws.23 The power of judicial review comes from the principle of separation of powers adopted to protect the governed from overreaching governmental branches.24 In most democratic countries, judicial review is the most distinctive feature of all democratic constitutional systems.25 “That is why, all over the world, in all democratic States, independently of being subjected to a legal system based on the common law or on the civil law principles, the courts—special constitutional courts, supreme courts, or ordinary courts—have the power to decide and declare the unconstitutionality of legislation when a particular statute violates the text of the Constitution or its constitutional principles.”26 Simultaneously, courts have the power to protect and guarantee the constitutional and fundamental rights of citizens.27 Judicial review, like the Rule of Law, includes the element of judicial independence.28
What Does “Judicial Independence” Mean?
“Judicial independence” does not mean that a judge may do whatever he or she pleases and rule without limits. Judges should not be independent of, for example, the Rule of Law or binding precedent, and they certainly should not legislate from the bench.29 Judges who do that violate the democratic doctrine of separation of powers. Instead, “judicial independence” means that individual judges can render controversial decisions within their judicial power without the fear of reprisal.30 “Judicial independence” is the principle that a “judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.”31 We want judges who are independent from improper decisional motivators—anything that would cause a judge to be partial or otherwise unjust.32 “Judges must be free, and must be perceived as being free, to render their decisions based on the law and facts of each case.”33
“Judicial independence” also means that for the court system to do its work, the other two branches of government should not interfere.34 In this context, judicial independence incorporates the idea of separation of powers to imply “that resources exist to ensure that justice can be dispensed fairly and efficiently; and that within reasonable limits and with appropriate accountability, the judiciary has the discretion to manage its own affairs.”35 The main reason for establishing institutional independence of the judiciary is to avoid improper influence on the courts from the other branches of government.
Judicial independence is the cornerstone of a legal system.36 “[A]n independent judiciary with the authority to finally interpret a written constitution . . . is one of the crown jewels of our system of government today.”37 It is the “realization that people’s liberty and their prosperity depend in part upon strong judicial institutions.”38 The United States Constitution protects judicial independence not to benefit judges but to promote the Rule of Law. In turn, judges are expected to administer the law fairly, without regard to public reaction.39 If the independent role of the judiciary is abrogated in any way, there can be no Rule of Law.40
Role of the Judiciary Revisited
Having defined “democracy,” “the Rule of Law,” “judicial review,” and “judicial independence,” I now define the judiciary’s role in a democracy: The role of the judiciary is to protect the Rule of Law through judicial review by ascertaining that (1) laws remain the supreme legal authority (as opposed to “rules of men”) and are impartially and independently enforced; and (2) the branches of government do not overstep their constitutional or legal boundaries. Keeping in mind this definition of the role of the judiciary, how do democracies erode, decay, and then die?
How Do Democracies Erode, Decay, and Die?
A democracy dies when its leaders are not bound by their country’s Rule of Law or when they ignore the separation of powers to satisfy their own personal interests.41 A leader who wants to shed democracy has many paths available. All paths begin with one step: winning the loyalty of key players and key institutions. In How Democracies Die, Levitsky & Ziblatt masterfully explain these phenomena by using a soccer game example:
[I]magine a soccer game. To consolidate power, would-be authoritarians must capture the referees, sideline at least some of the other side’s star players, and rewrite the rules of the game to lock in their advantage, in effect tilting the playing field against their opponents.42
In democracies, the referees are embodied in the judicial system, law enforcement bodies, and intelligence, tax, and regulatory agencies. Each has the authority to investigate and punish wrongdoing by public officials and private citizens. When these referees remain independent, they can uncover abuse or cheating from one team or a player. But suppose a referee’s loyalty is controlled by a player or his or her team. In that case, the referee becomes an enabler of that player or team by “shielding the [player or the team] from investigation and criminal prosecution that could lead to [that player or team’s] removal.”43
Keeping in mind the element of loyalty, another important leadership feature associated with the erosion of democracy is that the leader, when elected, is not only charismatic but also a populist.44 “Populists tend to deny the legitimacy of established parties, attacking them as undemocratic and even unpatriotic.”45 “They tell voters that the existing system is not really a democracy but instead has been hijacked, corrupted, or rigged by the elite.”46 “[O]n a populist’s understanding, it is not possible to challenge or doubt the decision of a popular leader, who has direct knowledge of the people’s will.”47
Populists begin the process of eroding democracy by “capturing the referees, buying off or enfeebling opponents, and rewriting the rules of the game.”48 In this way, “elected leaders can establish a decisive—and permanent—advantage over their opponents.”49 “Because these measures are carried out piecemeal and with the appearance of legality, the drift into authoritarianism doesn’t always set off alarm bells . . . . Citizens are often slow to realize that their democracy is being dismantled—even as it happens before their eyes.”50
Unlike a totalitarian or fascist leader, once the charismatic populist leader is in power, he slowly begins eroding democracy by taking small incremental steps—each within legal or constitutional limits— that, in the aggregate, assault democratic institutions and ultimately kill democracy.51 These steps include measures such as: (1) using constitutional provisions or amendments to alter basic governance arrangements; (2) eliminating judicial review and checks and balances; (3) centralizing and politicizing the executive power; (4) contracting, distorting, or eliminating the public sphere; or (5) eliminating/ suppressing political partisan competition.52
These five measures, separately or in the aggregate, directly attack democracy by weakening the administration of the Rule of Law. Each “subvert[s] democracy—packing and ‘weaponizing’ the courts and other neutral agencies, buying off the media and the private sector (or bullying them into silence), and rewriting the rules of politics to tilt the playing field against opponents.”53
Measures Used by Hungary and Poland to Compromise the Independence of their Judiciaries and the Rule of Law
In the last decade, the independent role of Hungarian and Polish judges became illusory. Wanting to destroy checks on the executive, populist leaders in these countries began by implementing constitutional amendments and backing laws that threatened the judiciary’s independence. They complemented these steps by unpacking existing courts and packing them with party loyalists, shrinking constitutional courts’ jurisdiction and social standing, enacting judicial “reforms,” or publicly questioning or criticizing the judiciary’s democratic commitment. All these measures were meant to silence the judiciary and eliminate the checks on the executive branch. In both countries, these efforts were initially masked as necessary steps to enhance the democratic accountability and efficiency of the judiciary.54
In Hungary, the populist Fidesz Party (Hungarian Civic Alliance Party), headed by Viktor Orbán, won a constitutional two-thirds majority through a coalition with the Christian Democratic People’s Party (KDNP) in 2010.55 When Orbán came to power, he began “dismantling the existing checks and balances” enforced by the judiciary.56 First, Orbán replaced the 1989 Constitution (renamed the “Fundamental Law”).57 The Fundamental Law included “reforms which gradually strengthened the parliamentary sovereignty and weakened its constraints and counterweights.”58 For example, the Fundamental Law contained “a set of cardinal laws [or amendments] introducing structural changes in the judiciary and targeting its independence.”59 The existing Constitutional Court had no choice but to strike the transitional provisions as unconstitutional.60
Furious about this move, Orbán’s government fought back. It adopted an additional amendment, which not only introduced most of the provisions invalidated by the existing Constitutional Court, but also retaliated against that court.61 First, the legislators stripped the Constitutional Court of its jurisdiction and authority to review constitutional amendments, making its legal precedent retroactively void. Next, the Orbán government split the role of the National Judicial Council in appointing judges and gave that role to the newly created the National Office for the Judiciary (NOJ). Since its inception, the NOJ had been criticized for the lack of transparency in its appointments and for the absolute power its two members enjoy.
The procedural tactics used to curtail the independence of the Constitutional Court opened the floodgates to effectuate further changes. With the help of the NOJ, Orbán and the Fidesz Party began packing all levels of the court system with Fidesz Party loyalists. Through constitutional amendments, which were complemented by media attacks on the judiciary, Fidesz changed the number of Constitutional Court justices, their term length, and their selection mode. They increased the number of Constitutional Court justices from eleven to fifteen, prolonged their term from nine to twelve years, and modified the nomination of justices from consensual to governing majority rule. They also changed the retirement age for nonconstitutional judges from seventy to sixty-two. As a result, over 274 judges were forced to retire and were replaced by Fidesz Party loyalists. By 2013, Orbán and his government had packed the Hungarian judicial system with judges expected to be loyal to the Fidesz Party. Since then, the number of law annulments has significantly decreased.
“The 2010-11 changes to the Hungarian Constitution [or Fundamental Law] provide two examples of ways by which constitutional changes can undermine democracy.”62 First, the “government’s ability to achieve these changes depended upon quiet and careful manipulation of parliamentary rules, changes that could easily be viewed as technocratic and neutral so far as the maintenance of democracy is concerned.”63 To the public, the changes were viewed as a way to eradicate the vestiges of communism, which the judiciary allegedly supported. Second, the effect of constitutional changes was not immediately obvious.64 It took years for the autocratic effects to surface because they were originally promoted as democratic.
Poland followed a similar process to dismantle its judiciary and replace it with friendly party members. When, in 2015, the PiS Party won a majority in parliament, Poland’s democratic erosion began. The PiS proceeded to “launch[] a frontal assault on [the Constitutional] Tribunal as the only thing standing in the way of [President Andrzej Duda’s] plans to radically remodel Poland according to his nationalistic and conservative ideology.”65
Before the October 2015 elections, the party in control, the Civic Platform Party, or PO Party, appointed new judges for five seats on the Constitutional Tribunal. After taking office, the new PiS President, Jaroslaw Kaczynski, refused to administer the oath to these judges and began to annul their appointments by amending the law governing the Constitutional Tribunal. By December 2015, the new parliament had named five new judges to replace those designated by the PO Party.
PiS President Kaczynski’s government did not stop there. It continued to impose its will in a majoritarian fashion, taking on Poland’s high court, the Supreme Court, and other institutions in a campaign meant to dismantle existing checks and balances. For example, the PiS Parliament adopted additional amendments to box-in judges in the Constitutional Tribunal by increasing the number of judges who would have to hear each case and requiring more of them to agree to issue a ruling.66 Even more controversial was a provision stripping the Tribunal of control over its own case docket. When the newly appointed judges of the Tribunal held those changes unconstitutional, PiS officials refused to publish the Tribunal’s opinion.67
Another example occurred in 2017, when the PiS members of the National Assembly (the lower house of the Polish Parliament), determined to undermine the independence of the judiciary, passed a bill that put the nation’s Supreme Court, a separate body from the Tribunal, under the control of the ruling party.68 The bill, among other things, ousted the sitting Supreme Court judges with the aim of reforming the judicial system and ensuring any vestiges of communism were purged. The ruling party did not stop there.
In 2018, the PiS legislative majority enacted legislation that reduced the mandatory retirement age of its Supreme Court justices from 70 to 65, which triggered the removal of about 27 of the 73 justices. In addition, the court was expanded to include 120 justices through government appointments, in effect giving the ruling party the power to reshape two-thirds of the Supreme Court.69
What is as troubling is that, in late 2019, the National Assembly approved a “muzzle” law, which empowered the Disciplinary Chamber to charge judges who questioned the ruling party’s platform.70 In fact, laws were enacted to require the judiciary to disclose their memberships in associations of judges with the purpose of “chill[ing] discourse between judges regarding reforms, and to dissuade judges from joining judicial associations that have been critical of PiS legislation.”71 At the same time, PiS waged an ideological public-relations battle against the judiciary by accusing them of communist ties and painting them as impediments to democracy. The goal was to continue to justify using executive and legislative power unfettered by judicial review. As a result, judges began to be publicly and officially prosecuted for “allegedly political activities, such as chairing a meeting where judicial independence is discussed . . . [or] for referring questions to the European Court of Justice, an action referred to as ‘judicial excess’” by the prosecutors.”72
Consequences of the Hungarian and Polish Judicial Reforms
As a result of the measures implemented in Hungary and Poland, their judicial systems were stripped of independence and autonomy, their authority disappeared, and their Rule of Law became a rule for the few and privileged party members. Once the leaders of these countries succeeded in replacing their judiciary, they could play the game they wanted, a game played according to their own rules and without the intervention of independent referees to impede them from pursuing their personal goals. They were free of institutional checks. The result was that both countries, especially Hungary, were transformed from a democracy to an autocracy.
Can Democratic Erosion Happen in Texas?
If democratic erosion happened in Germany in the 1930s, and in Hungary and Poland in the 2010s, then it can happen anywhere else in the world, including Texas. In Texas, the powers of its three branches of government are set forth in its Constitution.73 No person, or collection of persons, of one of these branches may exercise any power properly attached to either of the others except in instances expressly permitted in the Constitution.74 The express separationof-powers provision reflects a belief on the part of those who drafted and adopted the Texas Constitution “that one of the greatest threats to liberty is the accumulation of excessive power in a single branch of government.”75 Despite this language, the Texas Constitution does not specifically provide any provision that delineates the independence of the judiciary. Consequently, legislators have been free to interfere with the judicial system. For example, in the past two legislative sessions (the 87th and 88th Legislatures), Texas legislators attempted, and in the 88th Legislature succeeded, in creating legislation to alter the composition of the Texas appellate courts.
The Senate Judicial Committee of the 87th Legislature contemplated gerrymandering the fourteen courts of appeal by redistricting them into seven courts.76 Why was the Committee contemplating such a step? As you recall, in November 2018, a “blue wave” swept judicial elections in Texas. The wave did not affect the state-wide courts, which remained Republican. However, the wave did affect local elections in large metropolitan areas. Almost “50% of appellate incumbent judges were defeated.”77 Forty-five of the eighty judgeships were on the 2018 ballot, with contested elections occurring in thirty-two of the forty-five seats.78 As a result, Democrat judges became a majority in seven of the fourteen courts of appeal when, before the election, they only held seats on three courts.79 With the exception of two proposed districts, the Committee’s proposed redistricting would facilitate Republican districts. Although the Committee’s chair later withdrew the committee bill, a danger exists that it might be revived in a future legislative session. If this occurs, will any such redistricting have as a hidden agenda an attempt to dilute the power of the existing fourteen courts? Is such a strategy geared to ultimately “pack” the judiciary with members of the legislative branch’s majority party? Will it be an attempt to eliminate or suppress partisan competition? Given what happened in Hungary and Poland, shouldn’t we be asking these questions?
In this last legislative session, the 88th Legislature, the controlling legislative party was more successful than in the previous session. It successfully passed legislation that limited the fourteen appellate courts’ power of judicial review and independence by creating the statewide Fifteenth Court of Appeals.80 This newly created court will have exclusive jurisdiction to review broad classes of cases involving the State of Texas. This would effectively strip the Austin Court of Appeals, a mostly democratic court, of its independent power to review important State matters, including cases involving the constitutionality or validity of a state statute or a rule to which the attorney general is a party. During this same session, legislators eliminated district courts’ and the fourteen courts of appeals’ power of judicial review over specific business cases by creating a state-wide business court and granting appellate jurisdiction to the newly created Fifteenth Court of Appeals.81
What is the significance of such enacted legislation? Well, as explained above, in the last few decades, Texans have elected state-wide courts from only one political party. Does it follow that the creation of new state-wide courts is a step toward eliminating the judicial power and independence of the local district courts and appellate courts? What about packing the Fifteen Court of Appeals and the business court with members of the majority party? Shouldn’t we be asking ourselves, do these steps mirror what occurred in Hungary and Poland? Is it the beginning of a slow democratic erosion?
Revisiting the soccer example, will the effect of the laws enacted during the last legislative session be to eliminate referees (the fourteen courts of appeals and the district courts) from the game (cases involving the State of Texas and specific business cases) and introduce new referees (the Fifteenth Court of Appeals and the business court) chosen by the more powerful team (the majority party)? Will the new referees be independent? Will the rules of the game change to benefit only the few? Or will the new referees follow the existing rules without regard for who the players are? How about the audience—will they perceive the new referees as independent? Does this matter?
All the questions I raise (and you may have more) are troubling, considering the recent changes in the Texas judiciary’s composition, power, and independence. Troubling because we know what happened in Hungary and Poland—their democracies died when their judiciary’s independence was finally destroyed. Troubling because of the threat of gerrymandering our court system with the purpose of diluting the votes of our citizens. What can we, as Texans, do to prevent the same from happening in our State? What should we as judges—without regard to party affiliation— do to continue our role as protectors of the Rule of Law and our democracy?
What Can We Do to Prevent Democratic Erosion?
To prevent the Texas judiciary from losing independence—and being silenced—I recommend four steps. First, Texans should pressure Texas legislators to guarantee judicial independence. Presently, no such guarantee exists. The Texas Constitution and the Texas Bill of Rights are silent in that respect. There is no Texas law that makes such a guarantee. Texans must insist that our legislators provide such a guarantee either through our constitution or by statute. Second, to maintain independence, Texas judges must act as an independent judiciary. Texas judges must embody the courage to make independent decisions without fear of public, economic, or political pressure. Texas judges must uphold the Rule of Law without any fear of repercussion from political parties or the public. Third, in maintaining judicial independence, Texas judges must acknowledge that such independence is balanced with judicial accountability.82 As judges, we are accountable for making decisions that are “an application of the law, properly identified, and using legal reasoning where appropriate, to the true facts of a case” and without fallacies.83 Legislating from the bench is not an option; following the law is a duty. It is through transparent rulings and opinions that the judiciary honors its accountability to the electorate. Fourth, Texans must make every effort to educate the public, especially school children, on the importance of judicial independence and the Rule of Law in our democracy. This step is invaluable to maintaining an engaged and civic-minded electorate that can hold politicians and the judiciary accountable when they threaten to erode judicial independence and the democratic process.
Conclusion
“Democratic erosion” can happen in Texas. As the safe-keepers of democracy and the Rule of Law, it is up to Texas judges to guard against such an occurrence. But, as we saw with Hungary and Poland, democratic erosion can creep into the judicial system without any warning. We simply cannot allow this to happen. Texans must not only be attentive to any sign of such erosion, but must also take affirmative steps (including those I suggest in this article) to guard our democracy and our Rule of Law.
ENDNOTES
See endnotes in print.
