When Political Attacks Threaten Judicial Independence and Contribute to Mass Incarceration

Justice Ruth Bader Ginsburg of the Supreme Court of the United States (popularly and awesomely referred to these days as the “Notorious RBG”) recently remarked that the independent judiciary is “our nation’s hallmark and pride.”

Her Honor wisely notes that judges who find themselves under political attack depend on others to “explain the importance of an independent judiciary,” and that criticism across branches of government is helpful when it is “constructive, not destructive.”

The importance of these principles is perhaps most evident in the area of criminal justice. Study after study shows that the majority of political attack ads against elected judges accuse them of being “soft on crime,” and that judges are more likely to impose longer prison sentences and are less likely to rule in a defendant’s favor when faced with the threat of such attacks.

In other words, political attacks against judges tend to threaten judicial independence and contribute to mass incarceration. By extension the opposite could be true as well, i.e. political attacks that accuse judges of being “tough on crime” could threaten judicial independence and lead to some other disasterously unjust social phenomena (again, this is not the trend).

None of this is to say that any person or group should exercise their First Amendment rights in any particular manner, except to the absolute fullest extent. But constructive criticism can be best, particularly when it comes to judicial decision-making the context of criminal justice.

Ultimately, judges have an ethical obligation to “not be swayed by public clamor or criticism.” Thus, when political attacks against them intensify, it essentially is a judge’s duty to respond only with strengthened resolve to uphold judicial independence.