Document Type
Article
Publication Date
2019
Abstract
Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as a scholar. Experience over the last two years has reminded us that, in times of aspiring authoritarianism in the executive branch and serial subservience in the legislative branch, independent and accountable courts are the bulwark of our freedoms. Those who lived through Watergate should not need the reminder.
Keywords
federal judiciary, courts, constitutional law, separation of powers, judges, judicial independence, judicial accountability, judicial review, rule of law, contemporary politics, interest groups, policy agents, presidential immunity, legitimacy, ideology, retrenchment of private enforcement
Publication Title
University of Pennsylvania Law Review Online
Repository Citation
Burbank, Stephen B., "Reconsidering Judicial Independence: Forty-Five Years in the Trenches and in the Tower" (2019). All Faculty Scholarship. 2068.
https://scholarship.law.upenn.edu/faculty_scholarship/2068
Included in
American Politics Commons, Constitutional Law Commons, Courts Commons, Ethics and Political Philosophy Commons, Jurisprudence Commons, Law and Philosophy Commons, Law and Politics Commons, Law and Society Commons, Legal History Commons, Policy History, Theory, and Methods Commons, President/Executive Department Commons, Public Administration Commons, Public Policy Commons, Rule of Law Commons, Supreme Court of the United States Commons
Publication Citation
168 U. Pa. L. Rev. Online 17 (2019).