Academic journal article Vanderbilt Law Review

The Origins (and Fragility) of Judicial Independence

Academic journal article Vanderbilt Law Review

The Origins (and Fragility) of Judicial Independence

Article excerpt


We hold certain truths of the federal judiciary to be self-evident. Article III judges are entitled to life tenure and salary protections, and cannot be removed outside the impeachment process.1 Political actors must comply with federal court orders. 2 And "packing" the Supreme Court is wrong.3 These assumptions are so deeply ingrained in our public consciousness that it rarely occurs to anyone to question them.

But a closer look reveals that these "truths" are neither selfevident nor necessary implications of our constitutional text, structure, and history. Instead, these rules of our federal judiciary have emerged over time through the rough and tumble of the political process. At one time, prominent government officials insisted that Article III judges could be terminated outside the impeachment process; that political actors could violate federal court orders; and that court packing was an appropriate and even desirable method of dealing with a recalcitrant Supreme Court. Yet over time, these practices became not only disfavored but utterly out of bounds. By firmly rejecting these methods of attacking the federal judiciary, political actors have built what I call conventions of judicial independence.4

Although the concept of "conventions" was first developed in British constitutional thought,5 American scholars have recently begun to appreciate that our legal system also contains many such norms.6 At a basic level, "conventions" are "unwritten rules of political behavior" that constrain the discretion of government officials.7 Notably, when scholars label a practice as a convention, they do not simply mean that government actors are in the habit of doing (or not doing) something. A practice is a convention when officials widely believe that it would be fundamentally wrong to do otherwise.8

How can we recognize a practice as a convention? For purposes of this Article, a "convention" protecting judicial independence depends on two major factors.9 First, the constitutional text and structure can plausibly be read to allow a given court-curbing measure.10 Second, a firm bipartisan norm has nevertheless developed, barring the practice.11 For that reason, political actors rarely even consider the practice; and if a government official does propose the court-curbing measure, she will be publicly condemned not only by political opponents but also by political supporters.12

This Article offers a (largely untold) historical account of how political actors built the conventions that today protect judicial tenure, ensure compliance with federal court orders, and bar court packing.13 None of these bipartisan norms developed until the mid-twentieth century. Perhaps most surprisingly to modern readers, in the nineteenth and early twentieth centuries, many government officials believed that it was constitutionally permissible to remove inferior federal court judges by abolishing their courts; in fact, Congress used this method in 1802 and 1863, and came very close to doing so again in 1913. But beginning around the 1930s, a bipartisan consensus developed that Congress could remove federal judges only through the impeachment process. The bipartisan norm requiring compliance with federal court orders emerged only in the wake of the civil rights movement of the 1950s and 1960s. And although some scholars assume that President Franklin Roosevelt violated an already-existing norm when he proposed to "pack" the Supreme Court in 1937, a closer look reveals that Roosevelt's plan had considerable support-and came close to passage. This Article demonstrates that the current norm against court packing gained steam only around the 1950s, largely due to the rhetoric of politicians. Since that time, legislators of both parties have treated the 1937 plan as a negative precedent-by condemning other judicial reforms as reminiscent of Roosevelt's "mortal error."14

Today, government officials virtually never suggest any of these court-curbing practices. …

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