A Normative Appraisal of Social Scientific Knowledge Regarding Judicial Independence

Abstract

Social Science research refutes much of the conventional wisdom regarding judicial independence. Evidence abounds that American judges possess only a modest amount of independence and that their independence is politically-conditioned and used for ideological purposes rather than rights protection. I argue here that we must embrace these social scientific facts normatively and that, contrary to the traditional view, doing so poses no great difficulty. In fact, the political uses of and political conditions attending judicial independence are normatively desirable. They promote political accountability, contribute to stable and more pluralistic democratic governance, and fit perfectly in the system of mutual institutional interdependencies that the Framers wisely created.

Keywords: judicial independence, Supreme Court, judicial decision making