Reconsidering Judicial Independence: Forty-Five Years in the Trenches and in the Tower

Abstract

Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as a scholar. Experience over the last two years has reminded us that, in times of aspiring authoritarianism in the executive branch and serial subservience in the legislative branch, independent and accountable courts are the bulwark of our freedoms. Those who lived through Watergate should not need the reminder.

Keywords: federal judiciary, courts, constitutional law, separation of powers, judges, judicial independence, judicial accountability, judicial review, rule of law, contemporary politics, interest groups, policy agents, presidential immunity, legitimacy, ideology, retrenchment of private enforcement