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The Independence of Individual Judges on the Bench

The concept of judicial independence, an integral part of the separation of powers in the constitutional framework of the United States, is inchoate.[1] One might think that in England, where many of the early ideas about the separation of powers developed, the concept of judicial independence might be articulately analyzed—far from it. In modern Britain, the idea of an independent judiciary remains primarily a term of constitutional rhetoric. Its penumbra, and perhaps even its core, are at best murky. Perhaps the English were so skeptical of theory that they adopted the common law solution—what Tennyson called “[t]hat wilderness of single instances”[2]—as a substitute for constitutional analysis. In any event, no general theory of judicial independence exists there either.

Of course, if one looks at the standard textbooks, there are lists of attributes of judicial independence.[3] Security of tenure is invariably linked to the Act of Settlement of 1700, which prevents judges from being dismissed other than through addresses to both Houses of Parliament—a modified form of impeachment. Financial independence also looms large for English judges. The conventional view is that salaries are protected in value through the semi-independent Top Salaries Review Body and somewhat distinguished from the common herd of public salaries by being paid out of the Consolidated Fund. Freedom from executive pressure is largely self-evident. Impartiality is rarely unpacked. It presumably means an absence of bias in favor of one party or the other in litigation. Yet, even the English judges have abandoned the view they expressed forty years ago that they were both apolitical and value free. Although judges may approach decisionmaking with an open mind with respect to factual situations and specific parties, judicial values and predispositions (the uncharitable might say their prejudices) inevitably shape their approach to decisionmaking.

In England, judicial independence has been most important as a piece of political rhetoric.[4] It is banded about in political disputes about legislation, such as those involving sentencing or judicial salaries.[5] It is a term likely to be trotted out, both by government and opposition, when a new approach is offered for some criminal or civil remedy. Although it is never defined, it is always asserted.[6] Lord Chancellors, who embody the judicial, executive, and legislative, often claim Britain does or does not have separation of powers depending on the context.[7] They never deny that the judges are independent, as it is assumed that Locke, Hale, Montesquieu, and Blackstone settled this.[8] Locke and Hale, however, had but rudimentary ideas about the subject, and Montesquieu, writing of England, seemed to confuse the judges and the jury.[9] It was Blackstone who gave a modern focus to the separation of powers, although his impact was far greater in North America than in Britain.[10]

I argue that there is a more or less accepted, although not always observed, theory of the independence of individual judges. Second, I argue that there is, at best, a confused notion of the independence of the judiciary as a branch of government, but not one that will withstand rational analysis. Third, I argue that the time may have arrived when there should be a clearer separation of powers, with something approaching an “independent” judiciary. Such a change, however, cannot happen without cost.