Controversial Judicial Decisions and Security of Tenure: Reflections on Trump v United States, the Miller litigation, and the attempt to remove Sir John Donaldson in the 1970s

This article will consider controversial judicial decisions and the protection accorded to judges when there are political attempts to remove them from office. The independence of the judiciary is essential in a modern democracy. As Victoria Prentice KC, the former Attorney General observed, ‘an independent judiciary ensures that government exercises its powers in accordance with the law.’ In 2018 Lord Hodge warned about the dangers to judicial independence as a result of populism, and opined that ‘[j]udicial independence is a critical component of the concept of the rule of law.’ Yet controversial decisions by the judiciary, even if legitimately decided on constitutional and legal principles, may risk weakening judicial independence if those who dislike a decision suggest (or carry out) a reform to the judicial appointment process, or seek to dismiss a judge. Lord Hodge was critical of those who wished to develop US style confirmation hearings for judges on the basis that judges make decisions that might be controversial: ‘[j]udicial decisions which have political consequences are not the same as political decisions.’ We cannot take the political and social circumstances that support the conditions for judicial independence for granted. The United States of America offers a warning to other western democracies of how declining public confidence and the conduct of the bench can undermine the independence of the judiciary.