The Vanishing Core of Judicial Independence

Abstract

With Congress firmly in control of the jurisdiction, resources, and structure of the federal courts, the scope of the judiciary’s independence is limited indeed. If there is an attribute that can be considered the core of judicial independence, it is the power of the federal courts to decide cases pending before them . In a pair of recent decisions, however, the Supreme Court has called into question whether the federal judiciary possesses even this limited attribute of independence. This Article examines how the Roberts Court has blurred the line between the judicial and legislative powers by ceding to Congress the authority to direct federal courts to decide pending cases for particular parties. After identifying the thorny issues that the Court has left unsettled, this Article suggests an approach to resolving them that preserves both Congress’s role in lawmaking as well as the core of the judiciary’s independence.

Keywords: judicial independence, jurisdiction stripping, separation of powers, exceptions clause