The topic of federal judicial independence is an amorphous one, and Professor Redish's fine contribution to this symposium provides meaningful shape and structure to this topic. I will leave it largely to the academics to debate the many theoretical questions raised by Professor Redish. At the outset, I would simply like to offer a few observations on the four categories into which Professor Redish subdivides the concept of federal judicial independence.
I agree with Professor Redish that what he labels "institutional" independence, "decisional" independence, and "counter-majoritarian" independence identify those basic respects in which the Constitution guarantees the federal courts protections from political intrusion. I must also note that none, or virtually none, of the current political debate over issues facing the federal courts relates to any of these three legitimate aspects of judicial independence. No one worries that Congress will attempt to reduce the compensation of sitting federal judges in violation of Article I, Section 1, of the Constitution. Moreover, there is no reason to fear that Congress will attempt to control, or interfere with, the adjudication of specific cases or prevent the courts from addressing the constitutionality of the laws they are enforcing. In short, while these three types of independence raise a number of interesting academic issues, they are not the source of any immediate controversy over alleged threats to judicial independence.
Hatch, Orrin G.
"Congress and the Courts: Establishing a Constructive Dialogue,"
Mercer Law Review: Vol. 46:
2, Article 4.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol46/iss2/4