Interdependent federal judiciaries: puzzling about why & how to value the independence of which judges

Judicial independence is a norm presumed to have been settled upon at the founding of the United States. Yet the authority accorded to judges has been a hauntingly provocative topic since the country's inception. Article III of the U.S. Constitution institutionalized the federal judiciary and gave its judges two forms of protection: they can neither be fired nor have their salaries cut. In theory, such insulation from the two other branches of government leaves judges free from political constraints that could undermine their willingness to render impartial judgments based on the merits of each case. But which cases do judges get to decide? And what remedies do they have the power to order? How are they funded, and how many are needed to make meaningful the notion that the judiciary is one of three branches of government? The Constitution left to the other branches the decisions about the number of federal judges and levels of courts. Furthermore, the Constitution makes no mention of budgets, and its provisions relating to jurisdiction are ambiguous. Thus, concerns are raised perennially that judicial independence - as well as the court system that it has helped to spawn - is either overvalued or at risk. One burden of this essay is to contrast the thinness of the constitutional protections with innovations of the twentieth century that have demonstrated a thick political commitment to the deployment of judges in service of national norm enforcement. Given that attention is easily drawn to examples of conflicts among the branches of the federal government, narratives about judicial authority often overlook the cooperative effort that has produced the contemporary federal judicial system. My second purpose is to reflect on how some of the twentieth-century innovations that can be understood to have been sensible adjustments aimed at equipping the administrative state with judicial resources have, nevertheless, undermined practices supportive of judicial independence. The federal system ought not to be considered in the singular. Over the last several decades, Congress has invented new kinds of federal judges ("non-Article III judges") lacking life tenure; their dockets are often filled with the neediest of litigants, some of whom challenge governmental action. Yet these lower echelon jurists wielding federal adjudicatory power outside the parameters of Article III are vulnerable to incursions from all quarters. Congress has also created new modes and venues for adjudication that shift decisions from public to private processes in both courts and agencies. Revisions of rules within courts, coupled with the outsourcing of cases to administrative agencies and requirements that litigants use private dispute resolution systems, make public access difficult or impossible. Discussions of judicial independence have not paid much attention to the role played by the public dimension of adjudication that (to borrow from Jeremy Bentham) is the "soul of justice" that puts judges who preside at trial themselves on trial. In short, the constitutional provisions for judicial independence set forth at the founding of the United States have proved to be sparse and ambiguous. They are capacious enough to support enormous growth as well as to tolerate radical reconfigurations of adjudication.