1. What is “judicial independence?” Do political actors today seriously threaten that independence?
How do we distinguish between legitimate and illegitimate political influences on judicial action
– both external and internal to the judicial process? The Politics of Judicial
Independence examines these fundamental questions of law and politics, which arise with such
force in court-centered constitutional systems. Bruce Peabody, editor of the volume, is a
constitutional scholar at Fairleigh Dickinson University. He and his ten contributors have
produced an engaging set of complementary essays examining the constitutional politics of the
judiciary’s interactions with other political actors.
The essays address a wide range of issues falling under the rubric of judicial independence:
recurrent patterns of Court-Congress conflicts; congressional checks on the exercise of judicial
supremacy; the presidential manipulation of judicial power; institutional interdependence within
the separation of powers; judicial power and public opinion; judicial elections and public
perceptions of courts; judicial-legislative conflicts in common law nations; the “siege” on the
Israeli Supreme Court; judicial self-regulation and judicial authority; and the implications of the
credibility of judicial argument for judicial power.
Two underlying themes emerge from the essays. One theme concerns contemporary political
responses to controversial exercises of the judicial power. Courts in the U.S. and elsewhere face
“intense” criticism and the potential use of aggressive checking measures from political actors, a
“new climate” of hostility which may threaten longstanding traditions of judicial independence
.The motivating force behind this book is a recognition of the political significance of potential
threats to judicial independence and the need for a careful scholarly examination of the issues
they raise. Notably, this project requires realistically assessing the actual risks posed to courts
and not exaggerating those risks or “condemn[ing] or dismiss[ing] criticisms of judges . . .
without trying to understand in a sympathetic way [their] motivations” .
A second theme concerns the proper understanding of “judicial independence.” The traditional
definition of judicial independence exemplified by Federalist No.78 is linked to the judiciary’s
distinctive nature as an apolitical institution, its limited power as the “least dangerous branch” of
government, and its special functions to preserve the Rule of Law and protect the rights of
individuals. A basic theme of this book is that the traditional view should be reconsidered in light
of new scholarship and the changing legal landscape. A revised account of judicial independence
must recognize that courts are inevitably political institutions, often exercise substantial
governmental power, and may have more limited and even quite different functions than the
traditional account of the judicial role suggests.
A brief examination of three of the essays will establish the overall flavor of the book. In
“Congress and Judicial Supremacy,” Neal Devins examines some of the political dynamics
shaping congressional recourse to its “awesome formal powers” over the Court – including
Congress’s arguable power to strip the Supreme Court of its appellate jurisdiction. Devins argues
that it is unlikely Congress will actually deploy its more controversial powers to check the Court
because of a combination of judicial sensitivity to congressional policy preferences,
congressional sensitivity to the broad public support for judicial independence, and congressional
indifference to the legislative branch’s own authority to interpret the Constitution. Thus the “new
climate” of contemporary congressional sorties against the Court – including the introduction of
jurisdiction-stripping bills – is largely rhetorical in nature, calculated to appeal to core political
constituencies of members of Congress rather than to check judicial actors. Devins, however,

2. does observe that “wide-spread accusations of judicial activism” by elected officials and activists
could “chip away” at the public’s support for judicial independence and change part of this basic
political dynamic.
In “Institutional Interdependence and the Separation of Powers,” J. Mitchell Pickerill examines
the U.S. Constitution’s separation of powers as a formalistic governmental structure that in
practice involves separate institutions of government exercising shared powers “against
background of institutional interdependence, comity, and accommodation” Pickerill embraces
the revised view of “judicial independence” discussed above, a view which recognizes that “the
U.S. judiciary is inherently connected to politics in many ways” and which does not aspire to an
artificial and unattainable insulation of the courts from political influences, whether those
influences arise from within the judicial process or from without.In Pickerill’s view, a proper
recognition of the unavoidable political aspects of the exercise of the judicial power and the
inevitability of institutional dialogue among the branches of government would temper both the
critics of the Court who attack “judicial activism” and the critics of the critics who in turn rush to
defend “judicial independence.” Pickerill concludes that the Court’s exercise of power in recent
years has not been diminished by the rhetorical attacks of its critics.
In “Judicial Credibility,” Louis Fisher examines the important role that the quality of the
Supreme Court’s legal reasoning can play in judicial-legislative relations. Fisher suggests that a
better understanding of the proper bases for evaluating the persuasiveness of the Court’s legal
arguments could canalize political criticism of the Court into the most productive channels and
enable the Court to avoid the missteps most likely to provoke political backlash. Fisher argues
that discussion of the Court’s justifications for its decisions too often centers on the question of
the democratic legitimacy of its invalidation of legislative actions rather than on the exercise of
the legal “reasoning process” that justifies the Court’s “existence and institutional independence”
within the Constitution’s structural framework.
For instance, Fisher contends that the Court’s invalidation of the Religious Freedom Restoration
Act in City of Flores v. Boerne is suspect not because the Court struck down a law passed by the
democratically-elected Congress but because the Court’s constitutional reasoning is dubious.
Justice Kennedy, writing for the majority in Boerne, concluded that Congress could not use its
textually-express enforcement power under Section Five of the Fourteenth Amendment to enact
a civil rights law establishing strict scrutiny for incidental burdens on the free exercise of
religion. Congress, Justice Kennedy asserted, has the power to pass laws to enforce the
Fourteenth Amendment (and thus the power to enforce the provisions of the Bill of Rights that
the Amendment incorporates against the states – such as the First Amendment’s guarantee of the
free exercise of religion); but Congress could not use that power to enact the Religious Freedom
Restoration Act because the legislative branch has no power under Section Five to alter the
meaning of the First Amendment, which the Court has concluded establishes only rational basis
review for incidental burdens on religious freedom.
Congress, however, enacted the Religious Freedom Restoration Act to implement an
interpretation of the First Amendment’s Free Exercise Clause, not as an attempt to alter its
meaning; and Congress was in fact restoring by statute an interpretation that the Court itself had
only recently abandoned. Thus the Court’s argument in Boerne is premised on the doubtful view
that the congressional power under Section Five is not the power expressed in the text, to enforce
the Fourteenth Amendment, but merely the lesser power to enforce the Court’s current doctrinal

3. understanding of the Fourteenth Amendment – whatever that understanding may happen to be
and whether or not it is correct. Fisher concludes that both the Court and its critics could profit
from a healthy dialogue centered squarely on the quality of the Court’s reasoning and its
foundation in law.
Bruce Peabody ends this valuable volume by reminding us that judicial independence cannot be
understood in absolutist form as a prescription for insulating courts from appropriate political
criticism and constitutional checks, but it does require that courts have the significant degree of
political autonomy necessary to fulfill their role under the separation of powers. The key is
holding the balance true. Of course, the question of the proper distribution of power between the
judicial branch and the other institutions of government within the constitutional design will
continue to produce disagreement and debate. With the publication of The Politics of Judicial
Independence, those ongoing debates will be richer and better informed. This powerful collection
of essays will find a welcome place on the shelf of any scholar interested in the judicial power.