by Robin Roenker
Inscribed over the entrance to the U.S. Supreme Court building in Washington, DC are the words “Equal Justice Under Law.” According to the webpage of the U.S. Supreme Court, those words “express the ultimate responsibility of the Supreme Court of the United States.”
The Judicial Branch of government—one of the three co-equal branches of our government (along with the Executive (the President) and Legislative (Congress) branches)—was established in Article III of the U.S. Constitution. Article III, which sets up the federal judiciary, states, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” It should be noted that the word “inferior” in this case does not refer to the quality of the courts. Inferior means “lower” in this instance, meaning that any court established by Congress would be outranked by the U.S. Supreme Court.
The federal court system operates in a hierarchy. There are 94 district courts across the country, where a federal case would first be heard by a single judge. Above the district courts, in the middle tier, are 12 regional circuit courts where appeals are heard by a three-judge panel. In addition, the middle tier also includes a 13th appeals court—the Court of Appeals for the Federal Circuit. Above all of the federal district courts and circuit courts is the U.S. Supreme Court, which serves as the “final arbiter of the law,” according to its website.
What is judicial independence?
Article III of the U.S. Constitution also states, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” That means that judges in the federal judiciary enjoy lifetime appointments, which is one way that the Founders devised to protect judicial independence. Protection from reduction of their compensation is another way to ensure judicial independence, as it prevents judges and justices from being punished for an unpopular verdict.
Judicial independence is the concept that members of the judiciary must be free from undue influence or pressure, not only from members of the two other co-equal branches of government (the President and Congress) but also from partisan interests or public opinion. Judges and justices should make decisions based solely on the law and facts of a case, preserving the rule of law. The American Bar Association (ABA) defines the rule of law as a system where no one is above the law, everyone is treated equally, held accountable to the same laws, and there are fair processes for the enforcement of those laws. The ABA notes that adherence to the rule of law requires an independent judiciary to ensure that human rights are guaranteed for all.
Founding Fathers on judicial independence
In The Federalist Paper #78, published in 1788, Founding Father Alexander Hamilton referred to the Judiciary as the “least dangerous” branch of government because it had no force, only judgment. He reasoned that the courts “were designed to be an intermediate body between the people and their legislature.”
Hamilton explained that his conclusion did not “suppose a superiority of the judicial to the legislative power. It only supposed that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”
Thomas Jefferson was also concerned about judicial independence. As the writer of the Declaration of Independence, one of the grievances against King George that Jefferson included in America’s founding document was, “He [the King] has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”
But, according to historians, Jefferson also viewed an independent judiciary as a potential path to oligarchy, which is where a small group has control over a country or institution.
In an 1819 letter to Spencer Roane, a politician and judge, Jefferson wrote, “The constitution…is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass.”
Appointments vs. election
The judicial system in the United States also includes state courts, which operate in a hierarchy as well. Cases are typically heard first—depending on the state—in either a superior, district or circuit trial court. For example, in the Garden State, the Superior Court of New Jersey serves as the state’s trial court, the Appellate Division handles appeals from the trial court, as well as the Tax Court, and the New Jersey State Supreme Court is the highest court in the state. According to the National Center for State Courts, roughly 95% of all legal cases in the U.S. are handled within state court systems.
In the federal court system, judges are appointed by the President with the “advice and consent of the Senate.” This process is outlined in Article II, Section 2, Clause 2 of the U.S. Constitution. When it comes to the state court system, however, the process to select judges varies from state to state. These inconsistencies stem from the fact that each state’s court system was established according to its own state constitution.
Some legal advocates argue that the country’s hodgepodge approach to state judge selection undermines consistent, independent rule of law. For example, currently, state supreme court justices are appointed by the governor in 10 states. The state legislatures in two states—South Carolina and Virginia—select the justices that serve on their state’s highest court.
In New Jersey, the Governor appoints all judges or justices in the state, with the approval of the State Senate. Judges in New Jersey come up for reappointment after seven years, and if they are again selected by the Governor and confirmed by the Senate, they can serve until the age of 70, at which point they are constitutionally required to retire.
Another way justices are selected for the bench is via popular election. According to the Brennan Center for Justice, a nonpartisan law and policy organization, 38 states use some form of popular election to place or retain the justices on their highest courts. In 14 states, justices are selected by voters in nonpartisan elections, meaning their political party affiliation is not listed on the ballot. In eight states, voters select their high court justices in popular partisan elections, where their political party affiliation is listed.
Proponents of electing state justices and state judges say this system protects judicial independence by making justices/judges accountable to the people who elected them, not a governor or legislature that appointed them. Diversity on the bench is also a concern for those that favor electing judges and justices.
In a survey conducted by the National Judicial Conference, one responding judge said, “As an African American female, I would not have had the opportunity to be appointed in a predominantly white male political environment.”
Legal policy experts at the Brennan Center, however, advocate for states to abolish election-based judicial appointments in favor of “a transparent, publicly accountable appointment process.” They argue that judicial elections threaten a state court’s ability to remain fair and impartial—particularly when special interest groups pour millions of dollars into electing a particular judicial candidate.
Too much money?
According to the Center for Effective Government at the University of Chicago, “Of the approximately 10,000 state appellate and trial court judges, 87% will face the voters at some point during their time in office.” It can be costly for candidates to run a judicial election campaign on their own.
In the 2021-2022 election cycle, special interest groups and political parties spent $100.8 million on state supreme court elections, nearly twice the spending in any prior midterm cycle, according to the Brennan Center. In 2023, according to the Center for Media and Democracy, the Wisconsin Supreme Court election alone attracted $51 million in total spending, and in 2025, a record $100 million was spent on the state’s supreme court race.
While the amount that can be contributed to a Wisconsin Supreme Court candidate’s campaign is capped at $20,000, unlimited contributions can be made to a political party. Both parties—Democrat and Republican—can then transfer money to their preferred candidate. A February 2025 Marquette Law School poll found that 61% of respondents believe that party contributions reduce the independence of judges.
“It is crucial that the public be able to look at courts and think they’re doing something different than raw politics,” Douglas Keith, senior counsel in the Brennan Center’s Judiciary Program, told the Center for Media and Democracy. “This kind of an election makes it really hard for them to think of courts that way if the process for picking judges looks like the process for picking a U.S. senator.”
Discussion Questions
- Thomas Jefferson and Alexander Hamilton had somewhat differing views on judicial independence. Which one do you favor and why?
- Which system of selecting judges do you support, appointment or election? Explain why.
- Do you think an independent judiciary is essential in maintaining the rule of law? Why or why not?
Glossary Words
appeal—a complaint to a higher court regarding the decision of a lower court.
nonpartisan—not adhering to any established political group or party.
oligarchy—a small group of people that have control over a country, organization or institution.
partisan—someone who supports a particular political party or cause with great devotion.
statute—legislation that has been signed into law.
This article originally appeared in the spring 2026 issue of The Legal Eagle.