March 23, 2003

THE book under review is the outcome of a conference held at the University of Pennsylvania, sponsored by the American Judicature Society and the Brennan Center for Justice, where 30 prominent academics from different disciplines presented their papers. From these papers and discussions, the editors collected nine scholarly articles that best elucidate the various facets of judicial independence.

The book is divided into four parts: i) an introduction and overview that “reconsiders” judicial independence; ii) a look at the theory and meaning behind judicial independence; iii) an examination of the theory and evidence of what we know about judicial independence; and iv) a look at the comparative dimensions of judicial independence.

There is considerable disagreement over what judicial independence really means. There are a number of perspectives from which one can view judicial independence. The most important point to emphasize is that when studying judicial independence scholars need to focus on courts individually as units of analysis.

The editors of the book argue that debates about judicial independence make the mistake of “jumbling” higher and lower courts. Since appellate courts have greater authority to make policy than trial courts, they may necessitate less insulation in favour of accountability. Besides, reforms that are adopted to protect independence may miss the mark for courts at different levels.

A lack of research and understanding of judicial independence limits our ability to assess effectively various public policy solutions. There are three barriers to understanding judicial independence. Despite myths to the contrary, judicial independence is a political concept that is a means to more than one end. Judicial independence and accountability are not warring concepts. Judicial independence is not a monolith that applies equally to every type of court everywhere.

Writing about the meaning of judicial independence and its theoretical dimensions, and the difficulty in formulating an acceptable definition of judicial independence for scholars and public policy advocates, Kornhauser notes that judicial independence can apply both to individual decisions of a judge as well as an entire legal system. Conversely, it can be viewed as a normative and empirical concept.

Rubin observes that the concept also suffers from adherence to the “three separate branches of government” metaphor found in almost every political culture. Rubin argues that in the modern administrative state, the functions of each branch of government overlap and are not very distinct. Because of this separate branch myth, scholars and policy advocates mistakenly focus on the structure of governments — whether the legislative and executive branches of government have too much power over judges — when the reality is that the functions of government are a “network of interacting units”.

Because of the definitional problems inherent in the concept, both Rubin and Kornhauser suggest changes in how we view judicial independence. Rubin argues that judicial independence is far more complex than we realize and that future research should focus on micro-politics such as the signals that judges receive from other political actors and how these signals affect their independence.

In assessing what we know about judicial independence from theory and empirically based research, Paretti has contributed one of the most interesting chapters in the book. The writer appraises the social science evidence behind the claims of scholars studying judicial independence. Paretti examines studies of judicial selection, judicial decision-making, public confidence in courts, and whether the courts protect individual and minority rights.

The last two chapters focus on the comparative dimensions of judicial independence, one by Epstein, Knight and Shvetsova, and the other by Scheppele. Epstein et al study the foundations of judicial selection systems in a comparative framework and pose questions related to whether differing selection systems really constrain judges. They conclude that political uncertainty typically produces the types of selection systems that scholars associate with granting more independence, such as life and term appointments.

On the contrary, they argue that as political uncertainty decreases, selection systems are designed to limit judges’ opportunities to vote their policy preferences. In each of these respects, the authors provide an excellent theory for why independence may be encroached upon by other branches of government.

Scheppele explores the minimum requirements of judicial independence as well as its outer boundaries. Most interesting is her exploration of what, if any, difference there is between a judge being ordered to decide in a particular way and having a very specific statute that directs interpretation. In the end, Scheppele argues that a key and fundamental part of judicial independence is the power of judicial review, which allows judges to turn to a “higher power” (e.g., constitutional provisions) in an effort to blunt the aggression of the other branches.

The effort of the scholars in this book to foster understanding about judicial independence is quite impressive. However, this book does not provide a congruous message. This is obviously an arduous task to accomplish given the ambit of the book. Still, many of the chapters overlap in their efforts and some parts (for instance, comparative dimensions) look as if they were simply added to broaden the gamut of the book. Nevertheless, this book is recommended for all scholars, practitioners and students of law and political science because of its richness of information as well as how this book examines the common assumptions about what judicial independence is and how it can be protected.

 

Judicial Independence at the Crossroads:

An Interdisciplinary Approach

Edited by Stephen B. Burbank and Barry Friedman

Sage Publications, B-42, Panchsheel Enclave, Post Box 4109, New Delhi-110017, India

Tel: 91-11-2649 1290-7

Email: marketing@indiasage.com  Website: www.indiasage.com

ISBN: 0-7619-2657 -7

298pp. $34.95

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