20 years under Putin: a timeline

Ekaterina Mishina discusses the threats to decisional independence in the American judiciary and how they are overcome, examining the lessons Russia can learn from the American system.



The comparative approach has always been my preferred method, perhaps because I teach foreign constitutional law, as did my father. Comparisons provide a broader perspective, and can emphasize things that would otherwise be overlooked in a narrow study. For this reason, my column will discuss the American context at length. From this vantage point, I’d like to find new insights into the Russian judiciary, continuing a topic I began in Sapienti Sat, and explored further in my article on the 20th anniversary of the establishment of judicial reform in Russia.


Judicial independence doesn't happen all by itself. It's tremendously
hard to create, and easier than most people imagine to destroy.

Sandra Day O'Connor


Much has been written on the current threat to the decisional independence of Russian judges. As I wrote in my last column, I have spoken with a number of American judges of every level in order to get their views on the American judicial system. Here is what they said about decisional independence.

First, threats to decisional independence can either be external or internal. All the judges consider the election of judges as the most critical threat to decisional independence. Today, judges are elected in 38 states.

When a judge is elected, sooner or later s/he faces a set of typical problems. One of them is the high risk of involvement in politics. It is a rare judge who manages to stay away from politics during their campaign. Elections bring the risk of becoming dependent on somebody (usually a campaign's sponsor), which constitutes the second serious threat.

A campaigning judge makes a good victim for those capable of providing financial support or otherwise contributing to a campaign. Sooner or later, sponsors will want compensation for their support—which could be a favorable verdict, more or less attention to a given cause on the part of the court, and so on. In any case, this kind of “compensation” completely undermines judges’ professionalism, integrity, and, of course, independence.

But these reminders from sponsors are not the only source of danger here. The elected judge may find their hands tied and begin avoiding complicated and controversial cases that call for an unpopular verdict in efforts to please their electorate. Of course, this threat is not fatal; however, the judges I talked to do take this problem seriously. At the same time, a number of factors serve as a guarantee that elected judges will stay on the right track. First of all, only highly qualified professionals with good reputations may become judges; another factor is the legal culture in the United States. In terms of independence, appointed judges feel much safer than elected judges, although they are only appointed for a certain period of time (unlike federal judges who get a lifetime appointment). The appointed judges may also prefer to avoid controversial and high-profile cases, since handling such cases may affect their career down the line. At the same time, the judges know that once-unpopular decisions can turn out to be highly important, for example, Brown v. The Board of Education.

Another problem with elected judges is that the pressure to be re-elected is a source of constant stress for them. In this sense, the appointed judges also find themselves in a more favorable position. Their jobs are protected, so it's much easier for them to maintain judicial independence. The very concept of judicial independence is essentially different for the elected judges, since they are accountable to their voters and pay attention to the opinion of the electorate.

The external threat to judicial independence may arise from other branches of power. The American judges consider the legislature to be the greatest source of danger to their decisional independence. Both the federal Congress and the legislatures of the states may pass laws that have a negative impact on the judiciary. The body of legislative power can also respond to a verdict by passing legislative acts. The most interesting point here is that the judges I spoke with saw no threats to the  judiciary from the executive branch. In the course studying materials kindly provided by the Federal Judicial Center, I often found confirmation of this. Despite the fact that in most cases, judges are appointed by governors (who enjoy broad powers in the realm of judicial appointments), there is almost no indication that they abuse this power.

American judges believe that it’s not their institutional judicial independence that is in danger today, but their decisional independence. The list of these threats is much shorter, since most of them are external.

A threat to decisional independence may arise when the position taken by a judge while handling a case has already been considered wrong by an upper court. However, this not evidence that reversed verdicts constitute a threat to judicial independence. If a verdict has been reversed, an American judge does not usually take it to heart. One or two reversed judgments don't constitute a problem nor do they necessarily reflect negatively on the judge in question.

Another threat to decisional independence related to unpopular verdicts is the threat of the judicial activism label. Judicial activism is a controversial phenomenon that has devoted advocates and equally virulent opponents. According to the doctrine of judicial activism, judges are the ones who take the most active part in the interpretation of the law. The appearance of the concept of judicial activism is attributed to the phenomenon of judicial lawmaking.

Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions." The implication is that judicial activists tend to look for breaches of the Constitution and generally ignore precedents. In other words, judicial activism happens when, in the course of lawmaking, a judge extravagates the framework of the Constitution de jure, comes up with legal propositions and thus responds to a novel social and economic situation. Contemporary advocates of judicial activism consider it a liberalizing phenomenon that had reached its peak from the 1940s through the 1960s.

At that time, the U.S. Supreme Court became an active supporter and advocate for civil rights, while the political hostility to the judiciary turned into direct threats of ignoring Supreme Court verdicts and dismissing its justices. It was the time of Miranda v. Arizona and Brown v. Board of Education.



The defenders of judicial activism find its positive side in the fact that U.S. Supreme Court Justices, and other judges as well, interpret the Constitution and legislative acts in order to meet the needs of today's society, whereas, from the viewpoint of the activist judges, the elected political branches of federal power and/or state bodies of the executive and legislative power may fail to respond to these needs. Within the framework of this paradigm, judges don't have to be afraid to exceed the limits of their traditional role as the interpreters of the Constitution and law in order to play the role of independent politicians and agents of change.

The opponents of judicial activism call its followers ”legislators on the bench” and claim that judicial activism violates the principle of the separation of powers by successfully creating new legal norms. Occasionally, the precedents set by controversial cases can make a great impact. Opponents believe that adopting new legislation is the prerogative of the Congress, and the judiciary has no power in the realm of the making laws. To them, judicial activism represents judges usurping power, a phenomenon that can easily be observed in verdicts on hot-button social issues.

Despite these dangers, politicians have not taken control of the American judicial branch as it  retains enormous power, based both on institutional and personal factors, including those that had been created by John Marshall.

Russia and the USA have different legal systems, so it's impossible to adapt the American experience in toto. Nevertheless, the following aspects definitely deserve the attention of Russian judges and legislators:

•    the criteria for selecting candidates for judgeships, where the selection process is based on the legal qualifications and personal qualities of candidates essential for the  administration of justice;

•    longer minimal experience in the legal profession required for judicial candidates;

•    Instead of focusing on standard aspects of the material law that the candidates already learned as law students and in the course of their previous careers, training for new judges should emphasize the rules and guidelines that are unique and necessary to the judicial profession.

The greatest challenge for the Russian judicial branch remains finding a way to help Russian judges transform their attitudes. Russian judges need to be confident that they are responsible and in charge of the administration of justice.