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Independence & Accountability

Courts can expect public support for their independence only if they are accountable for their conduct on and off the bench. The Brennan Center helps to educate the public about appropriate measures of judicial accountability and encourages judges to meet those standards. We also defend courts against unwarranted attacks on their independence and promote the proper balance between the judiciary and other branches of government.

In the wake of the U.S. Supreme Court's 2002 decision in Republican Party of Minnesota v. White, the Center launched an effort to help states preserve effective canons of judicial conduct that balance free-speech rights of judges with the due-process rights of litigants and the interest in judicial independence. In particular, the Center supports more rigorous recusal requirements, especially when judicial campaign conduct or campaign finance throws the impartiality of judges into doubt.  For more on setting recusal standards, see our 2008 report.

On June 8, 2009  the U.S. Supreme Court issued its decision in Caperton v. Massey.  In a 5-4 opinion written by Justice Anthony Kennedy, the Court concluded that given the "serious risk of actual bias," Due Process required the recusal of West Virginia Supreme Court of Appeals Judge Brent Benjamin.  The Brennan Center took the lead in coordinating the amici for the petitioners in the case.  In its brief, filed along with the Campaign Legal Center and the Reform Institute, the Center argued that in Caperton the Court had "the ideal opportunity to reinforce one of the most fundamental rights in any system based on the rule of law: the right to a fair hearing before an impartial arbiter."  In the months after the decision, states have recognized the need to strengthen recusal standards.  Click here for state judicial reform efforts in the aftermath of Caperton.

The public often does not understand the difference between the judiciary and other branches of government. In the words of Justice David Souter, a populace without an understanding that "the judicial branch has the job of policing the limitations of power within the constitutional scheme and [with] no understanding that [the courts] are charged with making good on constitutional guarantees even for the most unpopular people in society [will succumb] to cries to impeach judges who stand up for individual rights against the popular will."  Inevitably, we see efforts to constrain judges in ways that are inconsistent with their constitutional role or attempts to upset the balance of governmental power by stripping courts of the right to hear important categories of cases. Through legal analysis and public education, we help to combat these misguided initiatives.