198
Opinion of Scalia, J.
As sometimes ironically happens when judges seek to deny the power of historical practice to restrain their decrees, see, e. g., Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604, 637-639 (1990) (Brennan, J., concurring in judgment), the present judgment makes no sense except as a consequence of historical practice. Today's opinion finds "an acceptable balance between independence and accountability" because the Uniform Code of Military Justice "protects against unlawful command influence by precluding a convening authority or any commanding officer from preparing or reviewing any report concerning the effectiveness, fitness, or efficiency of a military judge relating to his judicial duties"; because it "prohibits convening authorities from censuring, reprimanding, or admonishing a military judge '. . . with respect to any . . . exercise of . . . his functions in the conduct of the proceeding' "; and because a Judge Advocate General cannot decertify or transfer a military judge "based on the General's opinion of the appropriateness of the judge's findings and sentences." Ante, at 180, 181. But no one can suppose that similar protections against improper influence would suffice to validate a state criminal-law system in which felonies were tried by judges serving at the pleasure of the Executive. I am confident that we would not be satisfied with mere formal prohibitions in the civilian context, but would hold that due process demands the structural protection of tenure in office, which has been provided in England since 1700, see J. H. Baker, An Introduction to English Legal History 145-146 (2d ed. 1979), was provided in almost all the former English colonies from the time of the Revolution, see Ziskind, Judicial Tenure in the American Constitution: English and American Precedents, 1969 S. Ct. Rev. 135, 138-147, and is provided in all the States today, see National Center for State Courts, Conference of State Court Administrators, State Court Organization 1987, pp. 271-302 (1988). (It is noteworthy that one of the grievances recited against King George III in the Declaration of Independence was that "[h]e
Page: Index Previous 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 NextLast modified: October 4, 2007