Legislative sanctions and the strategic environment of judicial review

The independence of the judiciary cannot be assumed. The creation and maintenance of an independent judiciary are difficult political problems, chiefly because independent social and political institutions necessarily make life more difficult for those holding political power. Powerful political actors constantly face the temptation to subvert judicial independence and transform the court system into a more malleable political instrument serving their own immediate needs. Such temptations may be particularly great when the courts become obstructive and the means for overpowering the courts seem readily at hand. The constitutional response to this difficult problem is to attempt to insulate the courts from political pressure. The U.S. Constitution employs various devices to this end, including giving federal judges lifetime appointments and prohibiting the reduction of their salaries. Of course, there are limits as to how independent the courts can or should be. It must be possible to hold even independent judges accountable for their actions, through impeachment, for example. Given the political power entrusted to judges, it would seem prudent to ensure that they are at least somewhat responsive politically, a goal typically achieved through a political appointment process. Nonetheless, protecting a judge’s autonomy is of paramount importance. In a variety of other ways, the formal protections of the constitutional text are only the first step toward securing effective judicial independence. There remain myriad loopholes that determined elected officials might use to punish the judiciary for its actions and reduce its independence.1 The American federal judiciary, therefore, may be better understood as “interdependent,” rather than truly independent, and the degree of independence that federal judges enjoy is, in fact, a function of the cooperation of elected officials and the degree of judicial independence they are willing to tolerate. Judicial independence is not “grounded so firmly in the Constitution that it cannot be threatened by politicians or interest groups.”2