Threats are effective if tied to judicial independence

Participant judges were asked whether they perceived a threat to judicial independence and, based on their response, to elaborate on the presence or absence of this threat. This broad question was chosen so that judges were able to articulate any type of threats they sensed, including concerns about various potential actions taken by the political branches, the public, or some other source. Recognizing that even a single piece of legislation may contain a mix of threats, judges could, in response to this question, single out specific provisions or elements of threats that were more concerning to them. Overwhelmingly, judges reported that they believed there is a threat to judicial independence, a response consistent with our view that the judiciary is generally aware of its place in institutional context, its relationships with other political actors, and potential encroachments on its authority. Yet, the judges differed in their articulation of what actually constituted a threat. Several judges suggested that they are less likely to feel threatened by provisions that targeted judicial policies and more so by those aimed at different features of the judiciary itself. The majority of the participants contributed to a robust picture of the different observable threats they believed to require the most attention on the part of the judiciary. Almost every judge mentioned that chipping away at institutional authority by Congress posed the greatest harm to the judicial branch; a few judges also forwarded alternative perspectives on the source of threats. We explore the responses provided by participant judges on a thematic basis.

Is There a Threat to Judicial Independence?

Participant judges recognized (almost universally) that there are threats to judicial independence, with 25 of the 27 judges agreeing that a threat existed, as demonstrated in table 2. [TABLE 2 OMMITTED FOR READABILITY] Explanations and additional information about the two judges who did not recognize a threat will be detailed later in the results section. Judges acknowledged the importance of judicial independence to the performance of the judiciary but noted that the barrage of threats to the institution by Congress in particular made it difficult to act as a coequal branch of the government. Further, judges posited that fostering judicial independence is a value that Congress shares with the judiciary, but only to the extent that the judiciary behaves in ways that Congress would support. Several judges elaborated on the nature of Congress’s wavering support of an independent judiciary, suggesting, as one chief district judge remarked, that “judicial independence is absolutely critical and vital to the continued health of the country. If you go back and study American history closely, the other branches, particularly the legislature, have always been nipping at the heels of the judiciary. They [Congress] don’t like the branch.”