Judicial Independence, Judicial Accountability, and the Role of Constitutional Norms in Congressional Regulation of the Courts

Abstract:     
In this article, the author seeks to explain why some incursions on judicial autonomy are deemed acceptable and others are not. Part I defines judicial independence in a way that not only accommodates, but necessitates an approach that is political and developmental in its orientation: the contours of judicial independence are delineated less by court made doctrine, than by informal norms or customs that Congress has gradually come to respect over time. Part II chronicles the development of customary independence through the cyclical attacks on the courts that punctuate phases in the relationship between the federal courts and the political branches in ways that justify their use. Part III discusses how fights to control the courts are easier for Congress to win in the appointments arena, where independence norms have not constrained Congressional behavior as they have in other contexts. As the opportunities to control the courts via impeachment, defiance, court-packing, jurisdiction-stripping, and budget-slashing have diminished with the ascendance of customary independence, the appointments process has emerged as the one remaining avenue for Congress to exert control over judicial decision-making. Given the dawning realization that a politicized appointments process now stands alone as a viable device for promoting prospective judicial decision-making accountability, ongoing efforts to de-politicize the appointments process are likely to be fruitless and may actually be undesirable.

Keywords: Judges, Judicial independence, Judicial accountability, Judicial history, Court organization, Court structure, Jurisdiction, Judicial criticism

Accepted Paper Series