Judge William H. Pryor of the U.S. Court of Appeals for the Eleventh Circuit has been making the rounds lately, speaking on the “controversial topic” of judicial independence to law students and fellow Federalist Society members. Contrary to the views of former Supreme Court Justice Sandra Day O’Connor and others, Judge Pryor submits that “the independence of the federal judiciary today is as secure as ever.” Calling verbal threats to rein in the judiciary -- for example, threats to subject judges to recall or to liability for their judicial decisions -- “non-issues,” Judge Pryor accused Justice O’Connor of hyperbole, and chided, “Sticks and stones may break my bones…”
Judge Pryor counseled those judges who are concerned about threats against their independence to exercise judicial restraint in order to avoid criticism. If by “judicial restraint” Judge Pryor means eschewing decisions on controversial cases by invoking standing or mootness or blindly deferring to the legislature, as some federal courts seem to be doing lately, we hope his colleagues do not follow his advice. The bottom line for Judge Pryor appears to be that, whether or not the threats carry any weight, he's happy to let judges surrender some of their independence in order to quell them if the threats are directed against judges of a different judicial philosophy than his own. In the future we hope you'll pardon us for declining to take seriously Justice Pryor's agenda-driven views on judicial independence.