Document Type
Working Paper
Publication Date
5-5-2017
SSRN Discipline
Legal Scholarship Network; Litigation, Procedure & Dispute Resolution eJournals; Corporate Governance Network; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Science Network
Abstract
The federal judiciary today takes certain things for granted Political actors will not attempt to remove Article III judges outside the impeachment process they will not obstruct federal court orders and they will not tinker with the Supreme Court's size in order to pack it with likeminded Justices And yet a closer look reveals that these "selfevident truths" of judicial independence are neither selfevident nor necessary implications of our constitutional text structure and history This Article demonstrates that many government officials once viewed these courtcurbing measures as not only constitutionally permissible but also desirable and politically viable methods of "checking" the judiciary The Article tells the story of how political actors came to treat each measure as "out of bounds" and thus built what the Article calls "conventions of judicial independence" But implicit in this story is a cautionary tale about the fragility of judicial independence Indeed this account underscores the extent to which judicial independence is politically constructed and historically contingent Particularly at a time when government officials seem willing to depart from other longstanding norms federal judges should take none of their current protections for granted
Recommended Citation
Felicia A. Burton, Tara L. Grove & Christopher C. Watson,
The Origins (And Fragility) of Judicial Independence,
(2017).
Available at:
https://scholarship.law.ua.edu/fac_working_papers/117