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Congress undermines and erodes judicial power when it imperially declares and exercises an exclusive right to enact federal procedural rules. Thus, congressional intrusion into federal procedural rulemaking is the most significant contemporary issue of judicial independence. The proper province of procedural rulemaking is no mere pointillist academic quibble, but rather an issue that runs to the core of judicial power. A judiciary that cannot create its own procedural rules is not an independent judiciary Moreover, a judiciary that constitutionally and statutorily is entitled to create its own procedural rules, but must perform that function under a constant cloud of congressional meddling and supercession, is truly a subservient, non-independent branch.

While Professor Redish grounds his views of judicial independence in a theory of majoritarian constitutional theory, it is important to ask—with regard to procedural rulemaking—whether (and in what sense) the federal judiciary is constitutionally or statutorily subordinate to Congress, or, if not, whether the judicial rulemakers are nonetheless required to act as if they were an elected branch of government. There should be no quarrel with the proposition that Congress as the legislative branch ought to be responsive to majoritarian concerns in enacting substantive law, or that the federal courts in performing their judicial function may serve as a counter-majoritarian check on substantive overreaching. But it is a far cry from endorsing these propositions to imposing a majoritarian requirement on the judiciary itself in its procedural rulemaking role. To imply that constitutional government requires this seems a peculiar and dangerous distortion of constitutional theory.

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