On the Status of Judicial Independence in the American Constitutional Order

I have posted a new paper on “Judicial Independence as a Constitutional Construction.”

The paper builds on the notion of constitutional construction and the role constructions play in our constitutional politics and in structuring the workings of our constitutional system. It focuses on the specific context of judicial independence and contestation over how valuable that ideal actually is and how it should be realized in practice. Current proposals to reform the courts might unsettle long-established understandings of how the judiciary should operate, but such efforts to unsettle and reform established constitutional practices and understandings have happened before.

From the abstract:

An independent judiciary, in the American context, might best be understood as a constitutional construction. That is, it is a politically constructed set of practices, institutions, and norms that extend but do not contradict the legal requirements of the formal constitution. As such, judicial independence has come to occupy a fundamental status within our inherited constitutional order. But importantly, it is mutable. Our inherited practice of judicial independence has been built up, and fought over, across time, and within the contours of the written constitution can be significantly reconstructed.

The example of judicial independence can serve as a useful illustration of the significance of unwritten practices to our constitutional order. This also provides an opportunity to examine how judicial independence was constructed, and contested, across American history. As current activists and politicians raise questions anew about the future of judicial independence in America, these current debates can be situated within a long history of debates about the proper role, composition, and structure of American courts. This Article reviews those debates regarding federal courts in the Jeffersonian era, state courts in the Jacksonian era, and the Supreme Court in the New Deal era.

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