History Shows Why We Need an Independent Judiciary

On August 15, 1911, President William Howard Taft rejected Joint Resolution No. 14, which presented for his approval the formal recognition of Arizona and New Mexico as newly formed states. The addition of two new states was certain to be a notable event for his administration, but the president was hesitant. Both of the prospective states had submitted their constitutions for approval, and while Taft quickly blessed New Mexico’s governing document, Arizona’s constitution worried the future chief justice. The Arizona constitution included a radical form of judicial recall, one that was extreme even by the progressive politics of the day. 

Judicial recall describes the process by which a judge may be subject to removal from office based purely on the public’s dissatisfaction with his performance, untethered to any accusation of official misconduct or crime. Together with the initiative and the referendum, judicial recall formed a three-pronged push for increased elements of direct democracy in American institutions. This drive to circumvent institutional safeguards unsettled President Taft, who would soon find himself openly at odds with the populist demagoguery of former President Theodore Roosevelt. Taft was a progressive in the parlance of the day, but he was no radical. He was above all a constitutionalist and a judge of the highest order. A lover of law and order, Taft believed the American constitution with its separation of powers and checks and balances represented the best available system to secure individual liberty and justice for all. Judicial recall struck at the very heart of Taft’s worldview. 

Taft recognized that a key element of the American system was the independent judiciary, separate and apart from the legislative and executive branches, the so-called political branches of government. The undeniable purpose and effect of judicial recall was the complete subordination of the courts to the same popular will that controlled the political branches. In order to sit as the neutral arbiter of justice, courts needed separation from such popular domination and influence. Taft understood that removing this separation meant that the judiciary would be subject to majority domination in the day-to-day business of justice. Asked to approve a state constitution at odds with such a fundamental element of the American system, Taft balked. He rejected the Arizona constitution and explained his reasoning in a 10-page special message to the House of Representatives. 

Taft was explicit in his disapproval. He declared, “This provision … in its application to county and state judges, seems to me so pernicious in its effect, so destructive of independence in the judiciary, so likely to subject the rights of the individual to the possible tyranny of a popular majority, and therefore, to be so injurious to the cause of free government, that I must disapprove a constitution containing it.”