Origins of Judicial Independence
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other branches that it is performing its function properly. To put it another way, there would be no justification for an independent judiciary if
the judges habitually deferred to the legislature in every case or always
bowed to the wishes of the executive.
Nor would their independence seem warranted if the judges ruled arbitrarily and continually fabricated new ‘‘rules’’ of interpretation to suit
their personal policy preferences. If that were the case, they might just as
well be elected to office and held directly accountable to the people for
their actions. In many States today, judges are in fact elected to office.
This practice of electing judges dates back to the Populist and Progressive movements of the late nineteenth and early twentieth centuries,
when it was widely believed in certain States that too many judges had
become corrupt, had ceased to be neutral administrators of justice, and
had therefore forfeited the right to be independent. The practice of electing judges has not proved to be entirely satisfactory, however, owing to
the fact judges running for office may be inclined to curry the favor of
special interest groups in order to raise campaign funds, or may feel
obliged to compromise principle and rule of law in order to satisfy a passionate majority and please the electorate.
Attempts to amend the Constitution to provide for the election of Federal judges have met with little or no success, and the independence of
the Federal judiciary seems well established. It has not been immune
from criticism, however, and throughout much of its history, especially
in modern times, the Supreme Court has been accused of manipulating
its own rules of interpretation and imposing upon the Constitution its
own philosophy of government. This is the basis of allegations that the
Court is engaged in ‘‘judicial activism,’’ the assumption being that the
Court should exercise ‘‘judicial restraint’’ and adhere more closely to
fixed rules of interpretation and the original meaning of the Constitution.
a. origins of judicial independence
Although the judiciary was clearly a separate branch of government in
England by the Middle Ages, it was not until the latter part of the seventeenth century that it achieved lasting independence. Much of the credit
for the establishment of an independent judiciary (and Parliament) goes