One might begin by asking why we are having this symposium. "Judicial independence" arises infrequently in litigation, so there are few snarling doctrinal knots to loosen and even fewer precedents to ponder. The truth is that our legislative and executive branches of government rarely attempt to interfere with the decisions of the federal judiciary. Of the few cases that have been decided, most seem surprisingly minor in their importance and insight.' It seems to us immensely difficult to make many judgments about judicial independence in the abstract that are likely to win widespread agreement, and in this area abstraction abounds. Even lawyers, for all their willingness to take sides on any issue, prefer to have some good precedent or doctrine on which to rely, much as cowpunchers prefer trained horses. The notion of judicial independence-what it is and what it requires-remains largely undefined because few important battles have been fought over it. Ever since Chief Justice John Marshall's vigorous defense of judicial review,' there has evolved a general consensus in America that judicial independence is a good thing, even if none of us know precisely what it is. When independence is neither challenged nor threatened there is little incentive to make clear and distinct the core concepts; war forces you to consider exactly what. you wish to defend. In such an environment, scholars can nary afford to believe that their wisdom and thoughtfulness will actually influence the shape of the law. Inactive doctrine is also impenetrable doctrine.
Zagel, James and Winkler, Adam
"The Independence of Judges,"
Mercer Law Review: Vol. 46
, Article 9.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol46/iss2/9