Judicial Independence and Article III: Too Little and Too Much

The contemporary conversation about judicial independence does not much attend to transformations in the structure and function of the federal judiciary in the United States or to the proliferation of various kinds of federal judges. My contribution to this symposium is therefore to sketch some of the salient changes and to consider how they affect discussions of judicial independence. The idea of change is also central to the article by Dr. Frances Zemans, whom I have been asked to follow. With characteristic thoughtfulness, and relying on a mixture of empiricism and analysis, Dr. Zemans urges readers to consider the distinctions between decisional independence and institutional independence as well as the differing settings of Article III and non-life-tenured judges. Her central argument is that judges should change the way they express—if not the way that they think about—judicial independence. Dr. Zemans proposes that judges relate to the public through a variety of means, including through the media, by education, and in their written decisions. She also suggests that judges deploy different voices, less arrogant, more explanatory, and more readily accessible