“All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.”
So said President Andrew Jackson, according to reports. Of course, President Jackson also said, after another case: “[Chief Justice] John Marshall has made his decision. Let him try and enforce it!”
Both quotes illustrate America’s complicated relationship with its independent judiciary. We all value a court free from political influence, until we lose. Whatever the ruling is on the Trump case involving allegations of paying off a porn star with so-called “hush” money, our attitudes on the court are likely to be dictated by what the verdict is, rather than abstract legal principles.
Having an independent judiciary is a big deal. As my students and I studied last fall, Israeli Prime Minister Benjamin Netanyahu had been trying to take away rights associated with his country’s independent judiciary, which polarized the population on whether it had the power to hold the prime minister accountable for alleged corruption. The Muslim Brotherhood lost power when it went after Egypt’s relatively independent judiciary.
In class, my students and I studied the difference between common law countries like the United States and code law countries found in Europe. In America, there’s a greater emphasis on precedent (or setting new ones) and creativity in interpreting and enforcing the law. We also have judicial review, where courts can overturn a national or state law, something rarely found in Code Law countries, which act as more like a government appendage and often issue very brief rulings, simply restating what the government’s law is, and are less likely to actually challenge it.
My LaGrange College undergraduates (Makayla Page, Ben Schmisseur, Hayleigh Sebaugh, Jenna Pittman, Parker Floyd, Zyhia Johnson, Gabriel Cofield, Daniel Cody, Amanda McLendon, Cooper Dolhancyk, Jakai Reed, Joe Thomas, Makenzi Maltezo, Landon Erwin, Camron Long, Zion Turner, Ema Turner, William Pearce, Samuel Whitt and David Fugate) and I gathered data on which countries had common law systems, and which ones had code law systems. We also entered data on a country’s level of freedom (from Freedom House) and corruption (from Transparency International) in an in-class experiment.
Our findings showed that countries with a common law system were far more likely to be free (2.8) than code law countries (2.2). Those countries scoring a ‘3’ are fully free, and countries with a ‘1’ are listed as not free.
When it came to Transparency International’s “Corruption Perception Index,” we found that common law countries were significantly less likely to be corrupt than code law countries, though mixed common law systems and mixed code law systems performed far worse in our studies (higher scores mean less perception of corruption). And yes, our results for both hypothesis tests were statistically significant.
When Ms. Page and I presented our findings at the Georgia Political Science Association at St. Simon’s Island, we got some feedback about other measures of an independent judiciary, so my law students and I will look at those this fall.
But as our preliminary results show, having a court that is capable of taking on laws passed by Congress, an executive order, a state law, or even a time-held judicial precedent is pretty good for a country’s freedom while lowering a country’s level of corruption.