The Twilight of Judicial Independence

Judicial independence, the ability of courts and judges to perform their duties free of influence or control by other branches of government or shifting popular opinion, has been a defining feature of the American Constitutional landscape for centuries. The architecture of judicial independence, however, has never been fully explained or understood.

As long as the foundations of judicial independence have remained sound and the structure has been adequate to support the weight of episodic attacks, there has been no pressing need to fully understand why or how. But that is changing due to developments—including the current Presidents' questioning the legitimacy of judges who disagree with him and giving agencies room to ignore court rulings—that are variously cyclical, sustained, and sudden.

Many believe these developments threaten the future of an independent judiciary in arguably unprecedented ways, and counsel the need for a deeper, and more systemic evaluation of judicial independence and its vulnerabilities. How did the architecture of judicial independence norms begin—and when did they start to erode? Why is independence essential to the role of the judiciary in American government, and how it can be rescued and defended?