Can Judicial Independence be Attained in the South? Overcoming History, Elections and Misperceptions About the Role of the Judiciary

Abstract

The question in some states is not whether judicial independence can be preserved, but whether it can be attained. Courts that have historically allowed racial, economic, political and other improper considerations to influence their decisions cannot easily shed a legal culture developed over decades. In addition, misperceptions about the role of the judiciary and the elections of judges may thwart any progress toward judicial independence and the rule of law. However, attaining an independent state judiciary is critically important because of the rapidly declining-some would say evaporating-role of the federal courts in enforcing the Bill of Rights on behalf of racial minorities, the poor, and others for whom the Bill of Rights is the only protection from the government. While these issues can be raised in many parts of the country, consideration of them is particularly appropriate here in the South, where the state courts have not been independent and have played a major role in defiance of the law. I will discuss our history, the problems of elections, and the misperceptions and then assess whether we have much cause for hope that independence will be obtained and what we might do to help achieve it.