Since the nation's beginning, the concept of federal judicial independence has been almost as confusing to political and constitutional theorists as it is fundamental to the successful operation of our form of constitutional democracy. On the one hand, the Constitution's framers consciously chose to insulate members of the federal judiciary from at least the most acute forms of potential political pressure by expressly providing for the protection of their salary and tenure. On the other hand, the framers simultaneously provided the groundwork to facilitate the exercise of seemingly substantial congressional control of the jurisdiction of the federal courts, thereby potentially undermining the very independence expressly provided to the judges of those courts. While this apparent theoretical contradiction is largely consistent with the pragmatic balances found throughout the Constitution, it has often given rise both to theoretical' and doctrinal uncertainty.
Additional questions might be raised concerning the extent to which constitutionally guaranteed judicial independence conflicts with congressional efforts either to exert control over the procedural operation of the federal courts5 or to curb significantly the discretion of federal judges in imposing criminal sentences. Further inquiry has been made concerning the extent of any constitutional obligation of Congress not to reduce the non-salary support services that have already been supplied to the federal judiciary. Therefore, the time now appears ripe for a wide ranging reconsideration of the constitutional and political scope of federal judicial independence.
Redish, Martin H.
"Federal Judicial Independence: Constitutional and Political Perspectives,"
Mercer Law Review: Vol. 46
, Article 6.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol46/iss2/6