What Will Guard the Guardians?: Combating Threats to an Independent Judiciary Through Lessons Learned from Theories of Inherent Executive Power

Abstract

There is a growing threat to the independence of the federal judiciary. It is not the threat described by opponents of the recent criticisms of judges that have garnered great attention over the past year. Instead, a subtler, more institutional, and more dangerous attack is in progress. In recent years, proposals have been made for Congress to prohibit the hiring of certain law clerks and require the disclosure of retired judges' bench memos and correspondence with other judges. The first of those proposals has become law, and the calls for the other are growing. This unprecedented threat raises a question not yet considered: When it comes to judges' prerogatives over clerks, work papers, and communications with colleagues, how should theories about inherent executive power inform the meaning of inherent judicial power?

This article argues that if one believes that Congress lacks the power to regulate the hiring of certain presidential aides and to require the disclosure of former presidents' privileged papers, then Congress also lacks the power to regulate the hiring of law clerks or to require the disclosure of judicial work product. In other words, building on a distinction between internal and external limits on congressional power recently discussed by Professor Richard Primus, I argue that if Article II of the Constitution provides the internal grant of power to the President, and the external restriction on the power of Congress, that is defended by proponents of a unitary executive and a robust executive privilege, then we should apply that understanding to Article III by reading Article III to provide a similar internal grant of power to federal judges and a similar external restriction on the power of Congress.

As the founding generation understood from its experience with weak state courts and the ineffective Articles of Confederation, liberty depends on an independent judiciary. And an independent judiciary depends on applying to the judiciary the same separation-of-powers principles that protect the presidency. Judges are among the most important guardians of our rights, and separation-of-powers principles are what guard those guardians-whether the threats come from a demagogue seeking the presidency, or from the "impetuous vortex" that Federalist 48 called a Congress prone to "everywhere extending the sphere of its activity."

Keywords: federal courts, unitary executive, executive privilege, separation of powers, law clerks

JEL Classification: K00, K19