Judicial independence is a norm presumed to have been settled upon at the founding of the United States.1 Yet the authority accorded to judges has been a hauntingly provocative topic since the country’s inception. Article III of the U.S. Constitution institutionalized the federal judiciary and gave its judges two forms of protection: they can neither be fired nor have their salaries cut. In theory, such insulation from the two other branches of government leaves judges free from political constraints that could undermine their willingness to render impartial judgments based on the merits of each case.
But which cases do judges get to decide? And what remedies do they have the power to order? How are they funded, and how many are needed to make meaningful the notion that the judiciary is one of three branches of government? The Constitution left to the other branches the decisions about the number of federal judges and levels of courts. Furthermore, the Constitution makes no mention of budgets, and its provisions relating to jurisdiction are ambiguous. Thus, concerns are raised perennially that judicial independence–as well as the court system that it has helped to spawn–is either overvalued or at risk.
One burden of this essay is to contrast the thinness of the constitutional protections with innovations of the twentieth century that have demonstrated a thick political commitment to the deployment of judges in service of national norm enforcement. The federal judiciary as it functions today is a relatively recent invention, which has been endowed over the course of the last century by Congress and the executive with expanded jurisdictional authority and institutional girth.
The federal courts have obtained stature through the joint venturing of all . . .
- 1This essay expands on remarks given at the 1870th Stated Meeting of the American Academy of Arts and Sciences held on May 15, 2003, in Washington, D.C.