TEXT :: Dedication of the Lawton Chiles Legal Information Center, University of Florida, Levin College of Law, Friday, September 9, 2005
It is a great pleasure to be here at the University of Florida to dedicate the Lawton Chiles Legal Information Center. Your new building is so beautiful, it looks like a Gothic cathedral. With your new high-tech classrooms and your additional library space, you will be well equipped to meet the demands of contemporary legal education. These new facilities are bound to inspire academic achievement, nurture interesting and valuable scholarship, and nourish a sense of community among the school’s students, faculty, staff, and alumni.
As magnificent as it is, what I would like to talk to you about today is not your new building. Instead, I would like to talk about one important use of the information you will receive as you use this library and what you will do once you leave; the part you will play, whether you know it or not, in maintaining individual liberty and the rule of law.
It’s elementary high-school civics that we have three branches of government, which regulate each other by an intricate system of checks and balances. The main check the judicial branch has on the others is the power to declare statutes or executive acts unconstitutional, though sometimes we might check the political branches in a softer way, merely by interpreting a statute in light of constitutional values or by ruling that a regulation or executive act isn’t authorized by statute. But whatever courts do, we have the power to make the President or Congress really, really angry. In fact, if we do not make them mad some of the time, we probably aren’t doing our jobs. Our effectiveness, therefore, relies on the knowledge that we won’t be subject to retaliation for our judicial acts. As Madison put it-and he, being the Father of our Constitution, should be heard-an independent judiciary is “an impenetrable bulwark against every assumption of power in the Legislative or Executive.” Well, impenetrable may be putting it a bit strongly. But the basic idea is sound: If you believe, as Madison and I do, that the courts are important guardians of constitutionally guaranteed freedoms in our common-law system, you know that the system breaks down without judicial independence.
Judicial independence is hard to define: Judges can be subject to discipline for legitimate reasons, and the political branches properly control, to some degree, the jurisdiction and political makeup of the federal courts and the various state courts. But, if I may coin a phrase, I know judicial independence when I see it. For instance, suppose, during a period of stormy relations between the White House and the Chief Justice, the President’s bodyguards killed the Chief Justice’s pet cat. Or suppose the executive branch threatened to cut the water supply to the Supreme Court building to prevent the Court from meeting and making anti-Presidential statements, or the Council of Ministers tried to evict the Constitutional Court from its offices. The first two events actually happened in the early- to mid-1990s in Russia under Yeltsin, and the third happened in Bulgaria in 1995. I think we can all agree that is not judicial independence.
Judicial independence doesn’t happen all by itself. It’s tremendously hard to create, and easier than most people imagine to destroy. That’s why the building where I work features a larger-than-life statue of John Marshall, who spent thirty-five years trying to nurture a culture where the political branches were, by and large, willing to acquiesce in the judicial branch’s interpretation of the law. They don’t always acquiesce, but fortunately, most of the time, politicians don’t challenge the courts to come enforce their judgments themselves, as Andrew Jackson did in the wake of the Supreme Court’s decision in Worcester v. Georgia. Creating a culture in the early Republic where, usually, courts’ judgments were enforced by the other branches of government is an accomplishment that entitles John Marshall to take his place together with Hammurabi, Grotius, and Confucius-if I may cite foreign law for a second-in the frieze of great lawgivers that appears along the top of the courtroom where the Supreme Court Justices sit.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital