Customary Independence

Abstract

This piece argues that a significant gap in our understanding of judicial independence is attributable to a failure to analyze judicial independence with reference to the sources of that independence. The prevailing, though often unstated assumption is that the judiciary's independence derives largely from the text of the Constitution and court-generated doctrine, which in reality have little to say about the contours of the judiciary's autonomy. In contrast, Constitutional customs or norms that Congress employs in deciding whether and how to regulate the third branch exert far more influence over the judiciary's actual autonomy, but have been largely unstudied. The author proposes a research agenda to explore customary independence more fully, and illustrates the utility of exploring customary independence through the example of court-packing, which court doctrine has left largely untouched, but which Congress has rejected as a matter of norm or custom.

Keywords: Judges, Judicial independence, Judicial accountability, Judicial history, Court-packing, Judicial criticism