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

18 Pages Posted: 18 Apr 2019 Last revised: 21 Jun 2019

See all articles by Stephen B. Burbank

Stephen B. Burbank

University of Pennsylvania Law School

Date Written: 2019

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

Suggested Citation

Burbank, Stephen B., Reconsidering Judicial Independence: Forty-Five Years in the Trenches and in the Tower (2019). University of Pennsylvania Law Review Online, Vol. 168, 2019; U of Penn Law School, Public Law Research Paper No. 19-19. Available at SSRN: https://ssrn.com/abstract=3373992

Stephen B. Burbank (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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