Interbranch Accountability in State Government and the Constitutional Requirement of Judicial Independence

When contemporary commentators decry what they describe as growing threats to “judicial independence,” they typically invoke “judicial independence” as a normative ideal—an institutional virtue. That virtue is the capacity of courts to protect individual rights, to police structural limits on governmental power, and to decide individual disputes based solely on the applicable law and the factual records presented, without regard to intimidation or other impermissible influences. Political attacks on our courts and the politicization of judicial selection and removal endanger that capability. To understand what is at stake in this debate, it may be important to note that the institutional virtue we call “judicial independence” is also a constitutional requirement. Like “separation of powers” or “checks and balances,” “judicial independence” states a legally mandated principle of governance that