Why Judicial Independence Fails

Judicial independence seems under siege. President Trump condemns federal courts for their political bias; his erstwhile presidential opponents mull various court-packing plans; and courts, in turn, are lambasted for abandoning a long-held constitutional convention against institutional manipulation. At the same time, across varied lines of jurisprudence, the Roberts Court evinces a deep worry about judicial independence. This preoccupation with threats to judicial independence infuses recent opinions on administrative deference, bankruptcy, patent adjudication, and jurisdiction-stripping. Yet the Court has not offered a single, overarching definition of what it means by the term “judicial independence.” Nor has it explained how its disjointed doctrinal interventions add up to a coherent theory of institutional autonomy. And it remains unclear how debates on judicial independence among jurists relate to debates about the same term in the larger public sphere. This Article’s first contribution is to analyze how the Roberts Court understands the term judicial independence and how its doctrinal rules fall far short of realizing even the aspirations the Court has for that term. This case study in doctrinal specification illuminates the gap between the Justices’ own ethical aspiration toward judicial independence and its institutional realization—a gap that generates confusion, uncertainty, and opportunities for circumvention. This Article then abstracts away from the particulars of the Roberts Court’s jurisprudence to explore the origins of this aspiration– implementation gap. To motivate this more general analysis, it first demonstrates that there is a large range of constitutional-design options for a founder seeking to create independent courts. The Framers of Article III embraced certain of these options and rejected others. Specifically, they preferred ex post to ex ante checks on political interference in the judiciary. Subsequent experience, though, has demonstrated that their choice of judicial independence’s institutional forms rested on flawed presuppositions. In particular, the Framers failed to anticipate the rise of partisanship as a motivating principle for national political action, and also the unexpectedly strong incentives that push legislatures toward vague or ambiguous statutory texts, leaving ample discretion for judges’ policy preferences. Today, it is possible to identify a range of instruments through which elected actors can achieve such unraveling. The three most important can be labeled cracking, packing, and stacking by analogy to techniques of partisan gerrymandering. This taxonomical exercise illuminates how, in practice, the jurisprudence and politics of judicial independence fall so far short of professed ethical aspirations. This exercise further points toward the possibility of a more institutionally grounded account of what plausibly can be expected in terms of federal court autonomy from the partisan currents of American political life