Mercer Law Review, Vol. 46, pp. 795-834, 1995
41 Pages Posted: 29 Sep 2005
Almost all discussions of judicial independence focus on the undeniably important dilemma of executive or legislative interference with the decisions of the judiciary. The common concern of these discussions is the entangling of the three separate branches of government in a way that the judiciary's decisions are pressured or influenced. This is essentially a structural approach, in that judicial independence is conceived of as something arising out of various provisions of the Constitution pertaining to the structure of government.
This article considers judicial independence from a different angle, an introspective one, seen through the judges' eyes. An introspective approach seeks to understand judicial independence not by reference to the structural organization of the three branches of government, but by reference to the judge's own perception of her ability to adjudicate cases. Such an understanding of judicial independence reveals that judges occupy a place of high tension, located at the intersection of numerous different restraints and liberties, some not captured by a structural analysis. In particular, introspection highlights the threat to independent adjudication posed by and within the judiciary itself. An introspective approach also shows that many forms of constraint felt by judges that interfere with independent adjudication exist beyond the realm of law and legal doctrine, partaking of the realm of culture. Finally, it shows that the structure of the Constitution, while sometimes important to the perspective of a single judge deciding a single case, is simply one part of the foundation of independence.
Keywords: judicial independence, constitutional law, federal judiciary
Suggested Citation: Suggested Citation
Winkler, Adam and Zagel, James, The Independence of Judges. Mercer Law Review, Vol. 46, pp. 795-834, 1995; Mercer Law Review, Vol. 46, pp. 795-834, 1995. Available at SSRN: https://ssrn.com/abstract=808624