Document Type

Article

Publication Date

2021

Publication Citation

71 Case Western Reserve Law Review 1045 (2021)

Abstract

Judicial independence is a fixture of American government, but its structure has never been fully understood. As long as the federal judiciary has survived episodic attacks with its independence intact, there has been no pressing need to know how or why. But a confluence of cyclical, sustained, and sudden developments now threatens the federal judiciary’s autonomy in arguably unprecedented ways and demands a more comprehensive analysis of judicial independence and its vulnerabilities. This article begins by reconceptualizing the structure of judicial independence in three tiers. At the apex is an ancient, Rule of Law Paradigm, which proceeds from the premise that independence enables judges to set extralegal influences aside and impartially uphold the law. In the middle tier is Article III of the U.S. Constitution, via which the framers implemented the Rule of Law Paradigm in a rudimentary way. At the base tier are informal constitutional conventions that emerged over time to fill gaps in the constitutional design and guide the political branches in their relationship with the courts in a manner consistent with Article III and the overarching paradigm. Next, the article explains how this threetiered structure came into being, how it evolved, later eroded, and how it recently began to collapse with the repudiation of judicialindependence conventions in a neo-populist age that is sweeping the globe. It attributes the long-term erosion of support for judicial independence to the crumbling Rule of Law Paradigm and its increasingly antiquated premise that independent judges impartially uphold the law, unsullied by ideological and other influences. It recommends a gradual shift to what I call a Legal Culture Paradigm, which reframes and defends the role of judicial independence in a government with a judiciary whose judges are deeply acculturated to take law seriously but who are nonetheless subject to extralegal influences at the margins, where operative law is indeterminate. It argues, however, that a reboot of the prevailing paradigm cannot, by itself, quiet the fury firing the ongoing, neo-populist assault on judicial independence, because the judiciary and its autonomy have become little more than pawns subject to sacrifice in a high-stakes chess game played by polarized, partisan political leaders for the future of American Democracy. The article concludes that realistic hope for an accord that restores judicial-independence conventions, guided by a new paradigm, must follow a period of destabilizing, no-holds-barred, partisan combat, in much the same way that settlement in contentious civil cases can often be achieved only after a period of exhausting and unrestrained hardball litigation.

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