"Make no mistake, the Court is going to have a United States marshal in attendance at the graduation. If any student offends this Court [by reciting a prayer], that student will be arrested and will face up to six months incarceration in the Galveston County Jail for contempt of Court . . . Anyone who violates these orders, no kidding, is going to wish that he or she had died as a child when the Court gets through with it." (From a ruling of a U.S. district court judge in Texas, May 1995, as quoted in Pat Robertson's "Courting Disaster: How the Supreme Court is Usurping the Power of Congress and the People.")

Back in 1788 when Alexander Hamilton wrote Federalist 78, part of the famous series of "Federalist Papers," he made a distinction between fundamental law, i.e. those rules and precepts embodied in the text of the Constitution and statutory law, which are the laws enacted by Congress, and he expressed the view that it was necessary to have an independent judiciary that would not be bullied into allowing the Constitution to be compromised by the encroachments of Congress:

"If, then, the courts of justice are to be considered the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty."

The flaw with Hamilton's reasoning appears to be that although he was prepared to imagine the worst about Congress, he was seemingly incapable of supposing that federal judges would do anything other that faithfully carry out their duty of impartially making distinctions between the text of the Constitution and statutory law in order to uphold the original understanding of the Constitution, i.e. "fundamental law" when adjudicating the cases that came before them.

The question that we might ask today, in the light of more than 200 years of hindsight, is whether the principle of judicial independence is compatible with the ideal of judicial impartiality? I believe that answer is no. The reason for this is that lifetime tenure and guaranteed salaries, tends to make some judges impervious to outside influences that moderate strongly-held partisan viewpoints; to the contrary, such guarantees of lifetime employment and financial security actually seem to encourage a full expression of partisan impulses (unhindered by either the limitations of the Constitution or statutory law) when making judicial rulings, and accordingly, as we see above, judges may even go so far as to threaten imprisonment without a trial by jury as guaranteed under the sixth amendment:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."