It is an extraordinary time when the following sentence—“it is hard to underestimate the importance of [X]”—has a plethora of topics all credibly vying for the position of “X.” Appreciating the competition, one would be hard-pressed not to include the independence of the judiciary as a prime candidate. When the eventual President calls into question the impartiality of a judge based on the judge’s “heritage” or when a court’s ruling on the administration’s travel ban might not be heeded, at least two conclusions can be drawn. First, the independence of the judiciary is presently being tested. Second, the independence of the judiciary may well be needed more than ever. Against such a backdrop, it is vital for current scholarship to provide a way to think through and assess that independence.
Enter Tara Leigh Grove’s thoughtful new article, The Origins (and Fragility) of Judicial Independence.
Drawing in part from her own (excellent) past work, Grove undertakes a significant examination of the independence of the federal judiciary. She traces the historical arcs of several key contestations between the judicial branch and one of its sibling branches, including the failure to comply with a court order, the potential removal of a judicial officer outside the impeachment process, and court packing. Though these contestations have received scholarly attention before, Grove brings them together in a new way. In so doing, she provides a persuasive account of how these various attempts to curb the courts were not only not verboten, but were embraced in the early days of the judiciary—and how political actors ultimately reversed their course. Continue reading "Rethinking Judicial Independence"