Document Type

Article

Publication Date

2003

Abstract

In this article, the author argues that the concept of "judicial independence" has served more as an object of rhetoric than it has of sustained study. He views the scholarly literatures that treat it as ships passing in the night, each subject to weaknesses that reflect the needs and fashions of the discipline, but all tending to ignore courts other than the Supreme Court of the United States. Seeking both greater rigor and greater flexibility than one usually finds in public policy debates about, and in the legal and political science literatures on, judicial independence, the author attributes much of the difficulty to three fundamental shortcomings, the failure to recognize that (1) judicial independence is not an end of government but a means to an end (or ends), (2) judicial independence and judicial accountability are not discrete concepts at war with one another, but rather complementary concepts that can and should be regarded as allies, and (3) judicial independence is not a monolith.

The author shows how the instrnmental approach key to recognizing the first shortcoming also helps to grasp the second and third, and he explores the implications of each for the additional research that judicial independence needs and deserves. That research, he argues, should no longer ignore state courts or lower federal courts, and neither should it ignore changes in attitudes towards, or in the practical circumstances of, contemporary law and lawmaking. Recognizing that attention to the different functions that courts perform, even within the same system, may lead one to consider whether they should be subject to different arrangements concerning judicial independence (and accountability), the author suggests a number of inquiries that might profitably inform the answers to such questions.

Comments

64 Ohio St. L.J. 323 (2003).