Judicial Independence and its Enemies

47 Pages Posted: 1 May 2020

See all articles by Aziz Z. Huq

Aziz Z. Huq

University of Chicago - Law School

Date Written: April 7, 2020

Abstract

Judicial independence appears under siege. Federal courts are condemned by President Trump for their political bias; his erstwhile presidential opponents mull various court-packing plans; and they, in their turn, are lambasted for abandoning a long-held constitutional convention against such institutional manipulation. As in the streets so too in chambers. Across varied lines of jurisprudence, the Roberts Courts evinces a deep worry about judicial independence, albeit defined in a more formal and machined manner thanin contemporary political rhetoric. This concern shapes recent decisions on administrative deference, targeted changes to substantive law, bankruptcy, patent adjudication, and jurisdiction-stripping. The ensuing caselaw, however, is characterized by gaps, incoherence, and even invitations to open circumvention. The Article’s first contribution of this Roberts Court jurisprudence to show how it understands judicial independence, and how its doctrinal rules fall far short of realizing that aspiration. This case study in doctrinal specification suggests a gap exists between the ethical aspiration toward judicial independence and its institutional substrates, a gap that generates confusion, uncertainty, and controversy.

The Article then moves away from the particulars of the Roberts Court to explore the origins of this aspiration/implementation gap. In this more general analysis, I show that there is a large range of decision options for a constitutional maker seeking to create independent courts. The Framers of Article III selected among these options, preferring ex post to ex ante checks on political interference in the judiciary. Subsequent experience, though, has demonstrated that their decision rested on deeply flawed presuppositions. In particular, the Framers failed to anticipate either the rise of partisanship as a motivating principle for national political action, or the unexpectedly strong forces that push legislatures toward vague or ambiguous statutory texts that leave ample discretion to judges. As a result of these presumptions’ collapse, elected actors operate in a domain in which they wield ample discretion to unravel judicial independence of the kind the Court holds dear. I offer a taxonomy of the instruments of such unraveling, which I label cracking, packing, and stacking by analogy to techniques of partisan gerrymandering. This exercise illuminates why the jurisprudence and politics of judicial independence fall so far short of professed ethical aspirations. It further points toward the possibility of a more institutionally grounded account of what plausibly can be expected from federal courts.

Keywords: Judicial independence, separation of powers

Suggested Citation

Huq, Aziz Z., Judicial Independence and its Enemies (April 7, 2020). Northwestern University Law Review, Vol. 115, Forthcoming , Available at SSRN: https://ssrn.com/abstract=3570264

Aziz Z. Huq (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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