What I Learned About Judicial Independence and Accountability in the United States from Working in Central and Eastern Europe

Guest Post by Jim Moliterno

By 2004, when I was invited to participate in my first justice-building project abroad, I had already spent 22 years teaching and writing about lawyer and judicial ethics issues in the US. I was already a tenured, full professor at the College of William & Mary Law School.  I thought I knew plenty about judicial independence and judiciaries generally. As it turned out, I still had a lot to learn. As I continued my U.S. academic career at William & Mary and then Washington and Lee, I branched out internationally, working in 14 countries, mostly post-communist states of Central and Eastern Europe.¹

I worked for more than twenty years (2004-2025) with courts in Central and Eastern Europe (CEE).² When Soviet domination ended in the late 1980s and early 1990s, very few living persons in CEE had experience with independent courts. Judges had been subject to “telephone justice,” a phone call from a Party official telling the judge how to rule on a pending case of interest to the Party. In some instances, judges were not people with a legal education. Instead, they were people who were good at following orders, and understanding their place in a political hierarchy. Following orders was more important than knowing the law.

As the Europe Union (EU) considered the accession of new members, it understandably had serious pause about welcoming states with virtually no living memory of or experience with independent courts. The EU’s solution often was to request a series of judicial structural reforms, chief among them establishing a judicial council—a body, made up mostly of judges, that would control or lead such matters as selection of new judges, discipline of ethical and legal violations among judges, transfer and promotion of judges, case assignments, and more. The laudable idea was to enhance judicial independence from government control, previously exercised by ministries of justice that performed these functions. However, as my colleagues and I have explained in detail elsewhere, these structures gave too much power to judges who were not used to independent judiciaries but corrupt ones. It did not matter much whether the corruption used to come from government/party control; now it could come from inside a judiciary that was largely untouchable by anti-corruption forces or even well-meaning government officials who were outside the corrupt judiciary’s independence bubble. Thus, the judicial council structure created independence without the necessary counterweight—accountability.

Although bodies intended to receive and investigate complaints about judges were created and were meant to be independent (and to a great extent were independent of the government), they too often lacked independence from the judicial council, further concentrating power in the hands of a few judicial leaders. 

The EU was right to be concerned about welcoming states with no living history of independent, fair, and impartial judiciaries. But its prescription created a largely insulated judiciary, populated by judges who were mostly accustomed to being directed in their decision-making by superiors whenever a case had great financial or legal consequence.

What About the US?

What is the state of judicial independence and accountability in the US? The history is long and rich, and often regarded as the world gold standard. But that is changing, and in ways that are deeply troubling.

Judicial Independence. I have written elsewhere that there are three kinds of attacks on judicial independence: gross, open attacks (imagine a Minister meeting with a judge to tell the judge how to rule in a particular case); systemic attacks, in which those in power change the rules of courts to take control of the judiciary (see Hungary under Orban or Poland under the PIS government); and insidious attacks, which are more subtle and aim to undermine the foundations on which independent courts are built.

One form of an insidious attack in the U.S. is identifying a judge by his or her nominating president—for example, an “Obama judge,” a “Clinton judge,” a “Trump judge,” a “Reagan judge,” or “my judge.” The message is that no analysis need be done of judicial rulings; judges are just stooges who rule as their nominating president would wish them to rule. This form of attack drives down public trust in judges and undermines our collective sense of their independence.

Recently, we have seen an escalation from insidious attacks to gross and systemic ones, including advocating that judges who rule against the administration should be impeached or their decisions ignored.³ Some have suggested that some courts—and thereby judges—should be abolished by Congress. At least one lawmaker hung “wanted posters” outside his Congressional office, targeting the judges who have dared to rule against administration preferences. Other threats of violence against judges, including through “pizza doxing,” are becoming increasingly and alarmingly common.   

In short, the United States is living under unprecedented attacks on judicial independence. Without judicial independence, there is no institutional means to rein in authoritarian acts by the executive.

Accountability. Judges need to be sufficiently accountable to balance independence.

First, judges, like other professionals, should be subject to a well-designed and fairly enforced ethics or conduct code. Such codes, when well-drafted, offer a definition of what it means to be a good lawyer, architect, physician, judge, and so on. In the case of judges, violations of the code are most often ferreted out because of complaints filed by members of the public including parties to litigation, lawyers, court staff and journalists. Such complaints should be even-handedly and professionally investigated. As with other codes regulating the conduct of professionals, the enforcement consequences for judges should be professional sanctions, ranging from warnings to reprimands to suspensions to dismissal.

In the U.S., state and lower federal courts have very good levels of accountability to go along with their independence from government control. State courts have codes of conduct or ethics, and in one form or another, a largely independent commission of professionals to receive ethics complaints about judges and act on them (similar state bodies have formed in CEE during the accession process).

On the other hand, the United States Supreme Court only recently adopted a code of conduct, and it is, unfortunately, unenforceable.

Second, judges are held accountable when they have an obligation to explain their rulings. Any decision-maker is more credible and more respected when they explain why and take ownership of the decision. When judges explain their decisions thoroughly, the parties can understand even if they do not agree with the decision, and if possible, they can appeal. Journalists can read and understand the judge’s reasoning, and report to the public why the judge says the result is the proper one under the law and the facts of the dispute. Law professors can parse the decisions and praise or criticize them as they see fit.

But if judges refuse to explain themselves, they are less accountable. If they are subject to no enforceable code of conduct, they are less accountable. And, as is true too often true of the current U.S. Supreme Court Justices, if they both refuse to explain their decisions and they are subject to no enforceable ethics code, they are supremely unaccountable. And dangerous to the rule of law.

The primary reason the U.S. Supreme Court has historically garnered such high respect is the deeply deliberative process normally required to reach a decision, and the detailed opinions rendered by the Court and by dissenting Justices. “Winning” in the Supreme Court used to mean successfully running a gauntlet of deep deliberation. It meant emerging victorious from an extended engagement between the best available legal arguments on an issue of social magnitude. But for an ever-increasing portion of the Supreme Court’s business, it is relying more on its “emergency” or “shadow” docket instead of its merits docket.⁴ Most often, when the shadow docket is used, no one outside the Court knows what any Justice thought about the decision. No reasoning is put to paper by anyone. When judges refuse to explain their rulings, the public understandably wonders what went on behind the curtain.

Failing to explain decisions on the most momentous issues of the day is the epitome of unaccountability. And it is a practice certain to rapidly erode the Court’s credibility and public trust. We are watching it happen before our eyes. And when public trust gets low enough, the game is over for the Court’s power.⁵ Courts do not have power because they command an army (they do not); they have power because they command respect.

Concluding Thoughts

n the end, whether in the U.S. or abroad, rules and laws and government structures and institutions only matter as long as those in power believe their role is to further the public interest and not their own selfish interests.

The good people in CEE, dear friends among them, faced a situation where too often, those in power believed their job was to serve their personal, selfish interests, not the public interest. The needed step in the right direction was perceived to be adoption of reforms, new institutions, new laws, that would advance the rule of law and the people’s well-being. Time and again, I saw good, sensible, well-designed reforms be adopted in CEE countries where I worked. And time and again, if the goals and attitudes and mindset of public officials did not change for the better, the legal reforms failed to advance the health of the rule of law or improve life for the people. Only when systems, laws, and institutions are well-designed, AND those in power believe in serving the public’s interest above their own, is the rule of law safe and healthy.

The institutions and laws of the United States remain generally good ones. And yet, we are in grave danger of a rule of law collapse. The phenomenon in the U.S. is in a way the reverse of that in CEE. While there are sound criticisms that I share about some of our institutions, U.S. liberal democracy has shown remarkable staying power. But what happens when reasonably good laws and institutions and systems are suddenly in the hands of people who are motivated by their own selfish interests and not the public interest?

I am learning in the United States, as I learned from my work overseas, that institutions cannot save the rule of law. Only people can do that.

ABOUT THE AUTHOR: Jim Moliterno is the Vincent Bradford Professor of Law, Emeritus at Washington & Lee University School of Law. He focuses on the legal profession, judicial ethics, and social justice, and has worked on international justice-building projects in 14 countries, including post-communist states of Central and Eastern Europe, China, Indonesia, and Thailand. He publishes regularly on Substack on defending the rule of law in the United States.

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1. I have also worked in China, Indonesia, and Thailand. On my ten, 2–4 week work visits to China, I gained insight into a currently-operating communist court system.
2. I plan to continue, but the defunding of USAID makes it less likely.
3. See, e.g., “How Trump’s clash with the courts is brewing into an ‘all-out war’“; “Second US judge who ruled against Trump faces Republican impeachment bid“; “Roberts rejects Trump’s call for impeaching judge who ruled against his deportation plans”
4. Steven Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Basic Books, 2023.
5. Much of my work in Central and Eastern Europe was focused on building public trust in judiciaries where it was already at a dysfunctional low level.