The Origins (And Fragility) of Judicial Independence

82 Pages Posted: 5 May 2017 Last revised: 20 Mar 2018

Tara Leigh Grove

William & Mary Law School

Date Written: March 16, 2018

Abstract

The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article III judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court’s size in order to pack it with like-minded Justices. And yet a closer look reveals that these “self-evident truths” of judicial independence are neither self-evident nor necessary implications of our constitutional text, structure, and history. This Article demonstrates that many government officials once viewed these court-curbing measures as not only constitutionally permissible but also desirable (and politically viable) methods of “checking” the judiciary. The Article tells the story of how political actors came to treat each measure as “out of bounds” and thus built what the Article calls “conventions of judicial independence.” But implicit in this story is a cautionary tale about the fragility of judicial independence. Indeed, this account underscores the extent to which judicial independence is politically constructed and historically contingent. Particularly at a time when government officials seem willing to depart from other longstanding norms, federal judges should take none of their current protections for granted.

Keywords: judicial independence, court packing, federal jurisdiction, Article III, court curbing

Suggested Citation

Grove, Tara Leigh, The Origins (And Fragility) of Judicial Independence (March 16, 2018). 71 Vanderbilt Law Review 465 (2018). Available at SSRN: https://ssrn.com/abstract=2963683

Tara Leigh Grove (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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