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Title
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Judicial Independence
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Author
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Clark, Tom S.
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Research Area
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Social Institutions
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Topic
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Legal Institutions
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Abstract
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For analytic clarity, judicial independence is best thought of as a concept that captures a variety of features of a judicial system. One common, and useful, approach is to associate judicial independence with the ability of judges to, in practice, make decisions the outcomes of which are not dictated by extrajudicial pressures. In this spirit, research on judicial independence has examined a number of topics, two of which are (i) the origins and determinants of political support for the judiciary and (ii) the consequences of maintaining judicial independence for economic performance. Original research on political support for the judiciary focused on how a system of separation of powers can constrain judicial independence. Current research is turning the question around, examining the role courts play as a component of a system in which policy is made collectively by political institutions. Research on the relationship between judicial independence and economic performance originally examined whether greater judicial independence is associated with higher levels of economic growth. Current research is expanding the focus to evaluate the conditions under which independent courts reinforce the stability of democratic government. As research on judicial independence moves forward, it should focus on further conceptual clarification, the study of independent courts as complements to other parts of a system of governance (rather than competitors to policy makers), and leveraging current advances for theoretically driven measurement of these concepts.
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Identifier
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extracted text
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Judicial Independence
TOM S. CLARK
Abstract
For analytic clarity, judicial independence is best thought of as a concept that captures a variety of features of a judicial system. One common, and useful, approach
is to associate judicial independence with the ability of judges to, in practice, make
decisions the outcomes of which are not dictated by extrajudicial pressures. In this
spirit, research on judicial independence has examined a number of topics, two of
which are (i) the origins and determinants of political support for the judiciary and (ii)
the consequences of maintaining judicial independence for economic performance.
Original research on political support for the judiciary focused on how a system
of separation of powers can constrain judicial independence. Current research is
turning the question around, examining the role courts play as a component of a
system in which policy is made collectively by political institutions. Research on the
relationship between judicial independence and economic performance originally
examined whether greater judicial independence is associated with higher levels
of economic growth. Current research is expanding the focus to evaluate the conditions under which independent courts reinforce the stability of democratic government. As research on judicial independence moves forward, it should focus on
further conceptual clarification, the study of independent courts as complements
to other parts of a system of governance (rather than competitors to policy makers), and leveraging current advances for theoretically driven measurement of these
concepts.
INTRODUCTION
Judicial independence is a topic of perennial discussion in scholarly research.
The exact meaning of this phrase is often unclear, and this has had the particular benefit of encouraging a broad range of perspectives and substantive
questions in the literature. However, that richness in analytic perspective has
come at the cost of the development of a clear, well-focused research agenda.
Judicial independence is not a fixed concept; neither is it an analytic quantity
that merits investigation in and of itself. Judicial independence is a characteristic of a judicial system, the relevant features of which are dictated by
the research question undertaken—in other words, judicial independence
Emerging Trends in the Social and Behavioral Sciences. Edited by Robert Scott and Stephen Kosslyn.
© 2015 John Wiley & Sons, Inc. ISBN 978-1-118-90077-2.
1
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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
is a broad term potentially encompassing a number of institutional design
choices. Scholars study institutional choices not simply for the sake of studying the institutions but because of the effects those institutions are predicted
to have on individuals’ incentives.
More than a decade ago, this theme, as well as others, was examined in
a seminal edited volume concerned particularly with judicial independence
(Burbank & Friedman, 2002). The contributors’ views spanned a range of perspectives, from Burbank and Friedman’s view that judicial independence can
be clearly and rigorously defined in a way that encompasses a broad array
of disciplinary objectives to Kornhauser’s view that judicial independence
is not even a useful concept. My perspective is somewhere in between. As
noted, judicial independence is a term that in common usage captures a variety of institutional features that may or may not characterize a particular set
of judicial institutions.
I focus on a particular concept under this larger umbrella—the extent to
which judges are able to decide a case in a way that is relatively insulated
from external pressure that is irrelevant to the merits of the particular dispute
they seek to resolve. This concept of judicial independence is closely related
to Cameron’s (2002) definition of judicial independence in relation to power
analysis. Some may recognize in this conceptualization the more familiar distinction between de facto and de jure independence. That common distinction
refers to the difference between the degree of independence judges have in
practice (de facto) and the degree of independence judges have from a theoretical perspective in light of the formal institutions that characterize a judiciary
(de jure). Another example of a similar distinction is the difference Ferejohn
(1999) notes between the degree of institutional insulation given to judges
as servants in a judiciary and the degree of autonomy given to the judicial
institution itself.
In sum, the study of judicial independence has historically been broad, of
varied perspectives, and extensive. The normative constitutional theory literature concerned with the countermajoritarian problem (e.g., Bickel, 1962; Ely,
1980) is at its core a literature about judicial independence. So, too, is the vast
literature examining the extent to which judges are responsive to changes
in public opinion when they decide cases (e.g., Caldarone, Canes-Wrone,
& Clark, 2009; Flemming & Wood, 1997; Giles, Blackstone, & Vining, 2008;
McGuire & Stimson, 2004; Mishler & Sheehan, 1993). However, I focus here
on two literatures related to judicial independence as I described it —the
political conditions under which institutional independence can be maintained and the consequences of maintaining judicial independence.
Judicial Independence
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POLITICAL SUPPORT FOR AN INDEPENDENT JUDICIARY
The first literature under the umbrella of judicial independence which I
examine is a research agenda concerned with the incentives political actors
have to create and maintain an independent judiciary and the types of
independence that can be maintained in a political system. Much of this
research has focused on the extent to which a paradigmatically independent
court—usually, the US Supreme Court—can, in practice, make decisions
without any influence from extrajudicial political incentives.
FOUNDATIONAL RESEARCH
In this vein, a body of research on what has come to be known as the
separation-of-powers model1 provides a number of foundational insights.
The contemporary literature on institutional confrontations has its roots in
a set of papers published roughly 20 years ago. Marks (1989) examined an
instance of Supreme Court statutory interpretation regarding Department
of Education regulations. His major contribution was the observation
that when the Supreme Court anticipates its decision may be revisited by
Congress and that the House and Senate can agree to an alternative policy,
then the Supreme Court will have an incentive to modify its decision. The
Court will do so in order to pick what is, from its own perspective, the best
policy from among those that will be immune from congressional override.
The following year, Ferejohn and Shipan (1990) made a similar argument
in the context of studying congressional control of the bureaucracy. Their
insight was that a political system with an independent judiciary can induce
a bureaucracy to make policy that more closely reflects the legislative
median than a political system without an independent judiciary. The
reason is that when a subcommittee of a legislature has gatekeeping power
to keep proposals from reaching the floor, a bureaucracy and committee
that are aligned together against the median can essentially collude against
the legislative median. An independent judiciary, by contrast, can use its
power of judicial review to dislodge policy and trigger an incentive for the
committee to bring a new proposal to the legislative floor.
The works of Marks and Ferejohn and Shipan both highlight the same feature of a system of separation of powers crosschecking vetoes and veto points
can work together to create situations in which institutional independence
1. The literature on judicial politics often discusses a “strategic model” of judicial decision
making—presumably in contrast to a model of judicial decision making in which judges are assumed
to be myopic and nonstrategic. That label is, in my opinion, not useful, as it describes a set of primitives
about judicial rationality, rather than a class of theoretical arguments and structures. For this reason, I
employ the term “separation-of-powers model” to refer to a class of models in which judges are modeled
as interacting with political actors in other institutions.
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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
is simply a function of whether the alignment of preferences among political actors provides that institution with “wiggle room.” For example, can
the judiciary leverage disagreement between the House and the Senate in
order to make policy that it likes and cannot be overturned because the Senate and the House will not agree on a different policy (even though each
may individually prefer to change the policy)? This particular representation of the separation-of-powers model has been a powerful, central source
of analysis in the theoretical and empirical literatures ever since, for example,
Bergara, Richman, and Spiller, (2003); Epstein and Knight (1998); Gely and
Spiller (1992); Martin (2001); and Segal (1997)). What is perhaps most perplexing is that while the model itself has not benefited from broad, systematic
empirical support, there have been instances in which scholars have found
some systematic evidence in support of the model’s dynamics, and anecdotal accounts often lend credence to the general mechanisms contemplated by
the separation-of-powers model.
Related to the separation-of-powers model but from a slightly different
theoretical perspective, scholars have also argued that maintaining an
independent judiciary can be in the interest of elected officials for reasons
other than instant policy outcomes. For example, Landes and Posner (1975)
and Whittington (2005) both advance arguments about the role that an
independent judiciary can play in maintaining intertemporal policy bargains. Judges who outlast their political contemporaries (because they have
longer tenures—often, e.g., life tenure) can help entrench political bargains
and therefore provide a form of insurance to political actors worried about
their policy bargains being undone in the future. At the same time, an
independent judiciary can help a contemporary political majority overcome
bad political bargains from the past that have outlived their usefulness
but are politically immune from reversal. Rogers (2001) makes a similar,
although distinct argument, suggesting that independent judges can help
provide informational feedback to political majorities about their policies
once put into place. Each of these myriad functions cannot be sustained, the
work argues, if judges are worried about political reprisal in the event they
make an unpopular decision.
CUTTING-EDGE RESEARCH
The study of how judicial independence can be maintained politically
has turned in a new direction in recent years, largely motivated by the
comparative study of judicial independence. Rather than simply ask why
politicians would maintain an independent judiciary, or what kinds of
policy choices a judiciary will make when it faces the possibility of political
reversal, this research asks how a politically savvy judiciary can work with
Judicial Independence
5
the tools it has to build its own degree of power. While it is often claimed that
the judiciary has “neither purse nor sword” and therefore must be mindful
of what political actors will do in response to its decisions, this vein of
research notes that the real source of power in a political society is the mass
public. If a court can marshall public support against a political majority,
then it may be more able to exercise judicial power—in other words, to act
more independently—than when it lacks public backing. Vanberg (2005)
advances this argument in the context of studying how different policy areas
vary in their salience and transparency to the public. Staton (2010) extends
Vanberg’s analysis by demonstrating that the judiciary itself may be able to
influence public attention to and information about judicial decisions. Clark
(2011) contributes to this line of enquiry by arguing that the interaction is
complicated by the fact that a legislature has a more direct connection to the
public and therefore has better information about who the public supports
in a convict between the courts and the legislature. The critical feature of
those works is the observation that a court’s relative strength vis-a-vis a
legislature is in part a function of the extent to which the public is willing to
side with the judiciary in a policy dispute. With its power to vote political
officials out of office, the public can hold politicians’ feet to the fire.
These works advance an important line of research concerned with how a
court can use a base of support against an elected majority. However, a question remains how a court can build that support and why a political majority
would create a court that could possibly evolve into such a powerful institution. Carrubba (2009) addresses this question and makes the argument that
initially weak courts have political advantages by enabling cooperation, at
the very least by serving as an information clearing house, among sovereign
(or semisovereign) entities. However, by facilitating that cooperation, a court
demonstrates to the public that the cooperation among the units is valuable
and in the public’s own interest. That demonstration builds into a base of support for the court that then enables the court to make decisions with which
the sovereign units may disagree but will have to abide by for fear of acting
against a cooperative arrangement the public has come to believe is valuable.
Indeed, the question of how a court can work with its (limited) resources and
relatively weak institutional capacity to build itself into a powerful, effective
component of a system of democratic governance is one that is central to the
understanding of judicial independence and will undoubtedly continue to
receive attention in the scholarly literature (e.g., Crowe, 2011).
THE CONSEQUENCES OF AN INDEPENDENT JUDICIARY
Another area of research in the study of judicial independence I want to
describe concerns the consequences of maintaining an independent judiciary,
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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
beyond the policy implications that result from individual disputes between
institutions. For example, there is a rich literature examining the relationship between judicial independence and political freedom, human rights and
economic growth (e.g., La Porta, Lopez-de Silanes, Pop-Eleches, & Shleifer,
2004). Here, I briefly detail some of the contours of this literature.
FOUNDATIONAL RESEARCH
The literature on the effects of maintaining an independent judiciary is as
deep as it is rich. It dates to at least Montesquieu and Madison and continues forward through contemporary work by North (1991); Weingast (1997);
Barro (1997, 2000); Acemoglu, Johnson, and Robinson (2001); and Frye (2004);
among others. The key insight from this literature is that when individuals are given power, the temptation to abuse that power is sufficient that
appropriate institutions must be designed in order to constrain governmental
power. This research directly implicates judicial independence in that courts
that are insulated from the political process have the necessary safeguards to
resist the threat of reprisal from those with power. To the extent that courts
can effectively constrain political power, then, potential abuses against property rights, human rights, political freedom, and other desirable social outcomes may be curtailed (e.g., Acemoglu & Johnson, 2005). Of course, that
proposition is not without controversy, and some have argued that economic
growth and freedom is more often due to the policies selected than the institutions used to select those policies (e.g., Glaeser, La Porta, Lopez-de Silanes,
& Shleifer, 2004). Of course, it is difficult to distinguish institutions from the
substantive outcomes they produce (e.g., Diermeyer & Krehbiel, 2003).
CUTTING-EDGE RESEARCH
In part because of the difficulty of identifying the extent to which institutions
and political outcomes cause each other, the research has turned to an analysis of the role that independent courts play as a part of a governing system
in which institutions mutually reinforce each other, rather than serve as constraints on each other. Reenock, Staton, and Radean (2013), for example, show
that the stability and survival of a democratic order is reinforced by judicial
institutions and the protection of property rights. Similarly, North, Wallis,
and Weingast (2009) argue that independent courts are important institutions
for controlling office holders seeking to maintain power through the use of
rent redistribution.
Judicial Independence
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KEY ISSUES FOR FUTURE RESEARCH
Moving forward, the research on judicial independence, especially in the vein
of the two broad areas I have described, can benefit from three particular foci.
First, the definition of conceptual issues concerning judicial independence
should be advanced with an eye toward the development of a more comprehensive model of governance in which courts are embedded into a complete
theory of institutions that make policy as complements to each other, rather
than forces acting in tension with each other. Second, and related, the literature on judicial independence should shift its focus from seeing courts as
competitors to political institutions and instead see them as part of a system of governance. This view of judicial independence requires a focus on
the legal functions that courts serve with an eye toward the motivations for,
and consequences of, an independent judiciary. Third, theoretically driven
measurement should be more central to the literature on judicial independence, making use of rapidly increasing data and computational capacity.
I now elaborate on each of these themes.
CONCEPTUAL CLARIFICATION
One of the themes with which I started this essay and which also emerges
from the preceding discussion, is that the idea of judicial independence is a
broad, sprawling one that does not necessarily map to a single concept that
is implicated by all research concerning “judicial independence.” My discussion has focused on one particular concept—the extent to which courts’
decisions are not influenced by the preferences of competing political institutions. One might label this type of judicial independence judicial insulation.
An alternative aspect of judicial independence refers to the extent to which
judicial institutions serve different functions than do legislative institutions.
Alternatively, to what extent to judicial institutions act as part of a larger system of governance, as opposed to separate institutions disconnected from
the political order. One might label this type of judicial independence judicial autonomy. Still a third variant of judicial independence might tap into
the extent to which a court has the institutional resources and capacity to
carry out its functions, to collect information on its own, and to functionally
operate without daily support from other political institutions. One might
label this type of judicial independence judicial integrity. Surely, there are
other theoretical conceptualizations of judicial independence that have relevance for myriad research questions. My goal here is simply to encourage a
richer conceptualization in the literature that avoids the folding of potentially
cross-cutting ideas into one umbrella term, such as judicial independence.
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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
COURTS AS LEGAL COMPLEMENTS
To reiterate, one of the defining features of the traditional positive political
theory literature on the separation-of-powers model, as well as the literature
on judicial independence and economic growth, is that it generally considers
courts as simply additional veto points in the political system. This approach
to thinking about the role courts play in governance has been fruitful and
has taken us very far in understanding the conditions under which independent judiciaries are politically desirable, the consequences of limited judicial
independence for policy making in a system of cross-checking vetoes, and the
incentives courts have for using their limited institutional capacity in an institutional confrontation. However, it is time to build our theoretical models
further, and a promising avenue is to incorporate the substantive differences
between judicial decision making and legislative decision making. Legislatures make policy in a very wholesale-level way—they make blanket policy
ex ante, and they do so with the benefit of particular institutional prerogatives,
such as a generally unrestricted agenda, the process of committee hearings,
and greater levels of open participation and public lobbying. Courts, by contrast, make policy in a more retail-level way. They decide individual cases
ex post, and appellate courts do so with an eye toward crafting workable
rules that can be implemented by lower courts going forward. Judicial policy is structured by the fact that courts are passive institutions waiting for
disputes to be brought to them (rather than having the ability to go out and
seek issues to address), and the information and resources they have to do
so is very different in nature. This is not to say that courts are inferior policy
makers but rather that the benefit from different resources and act in different
capacities. As such, we might expect that part of the incentive for maintaining an independent judiciary lies in the complementarities of judicial and
legislative policy. Just as the foundational research on political support for
judicial independence asked what role courts play in governance, the literature should return to these questions with the intervening lessons in hand
and recast courts as complements to the political process rather than strictly
competitors to legislatures.
THEORETICALLY DRIVEN MEASUREMENT
A third promising avenue for future research is measurement. How best to
measure judicial independence is a question that has been long debated in
the literature (for a review, see Ríos-Figueroa & Staton, 2014). However, as
my opening comments suggest, that broad question is not the right one to be
asking. Judicial independence means different things in the context of different analytic settings, and, as a consequence, how best to measure the relevant
concept can only be answered in the context of a particular research question.
Of course, measurement of latent concepts, such as the degree of institutional
Judicial Independence
9
independence a court may have, is a particularly tricky problem, but modern advances in measurement theory and practice may help alleviate some
of the thorns in this thicket. For example, as Ríos-Figueroa and Staton show,
there are many possible indicators of judicial independence that may tap into
common underlying concepts but may also be individually complicated by
additional concepts that drive the indicators, at least in part. Linzer and Staton (n.d.) introduce an approach that makes use of myriad indicators to distill
the common underlying dimension that explains variation in indicators of
judicial independence. While their measure is not necessarily the measure of
judicial independence for all research questions, it has the benefit of being
fairly easy to interpret and is extensible in the event a researcher wants to
employ different indicators to capture alternative conceptualizations of judicial independence.
CONCLUSION
Scholars have studied a number of concepts under the umbrella of “judicial
independence.” I propose further conceptual clarification and focus on a particular component of this term—the capacity of courts to make decisions that
are separate from extrajudicial influences. In this vein, there are two bodies of work that are particularly relevant and experiencing new directions.
First, scholars studying political support for independent courts are increasingly turning from a view of courts as competitors to other policy-making
institutions to seeing courts as a complementary part of a system of governance. Second, and related, scholars studying the consequences of independent courts for the performance of a system of governance are making
considerable progress in advancing our understanding of the relationship
between the rule of law and executive constraints on government power. As
the literature moves forward, scholars should push for further conceptual
clarification; advance the study of courts as part of a system of governance,
rather than a constraint on governance; and make use of contemporary tools
for theoretically driven measurement of concepts related to these arguments.
REFERENCES
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Acemoglu, D., Johnson, S., & Robinson, J. A. (2001). The colonial origins of comparative development: An empirical investigation. American Economic Review, 91(5),
1369–1401.
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Root (Eds.), Governing for Prosperity (pp. 209–231). New Haven, CT: Yale University
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Barro, R. J. (1997). Determinants of economic growth: A cross-country empirical study.
Cambridge, MA: MIT Press.
Bergara, M., Richman, B. D., & Spiller, P. T. (2003). Modeling supreme court strategic decision making: The congressional constraint. Legislative Studies Quarterly, 28,
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New Haven, CT: Yale University Press.
Burbank, S. B., & Friedman, B. (Eds.) (2002). Judicial independence at the crossroads: An
interdisciplinary approach. Thousand Oaks, CA: Sage Publications.
Caldarone, R. P., Canes-Wrone, B., & Clark, T. S. (2009). Partisan labels and democratic accountability: An analysis of state supreme court abortion decisions. The
Journal of Politics, 71(02), 560–573.
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it? And, who cares?. In S. B. Burbank & B. Friedman (Eds.), Judicial independence
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Publications.
Carrubba, C. J. (2009). A model of the endogenous development of judicial institutions in federal and international systems. Journal of Politics, 71(1), 55–69.
Clark, T. S. (2011). The limits of judicial independence. New York, NY: Cambridge University Press.
Crowe, J. E. (2011). Building the judiciary. Princeton, NJ: Princeton University Press.
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Epstein, L., & Knight, J. (1998). The choices justices make. Washington, DC: C.Q. Press.
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Flemming, R. B., & Wood, B. D. (1997). The public and the supreme court: Individual justice responsiveness to American policy moods. American Journal of Political
Science, 41(2), 468–498.
Frye, T. (2004). Credible commitment and property rights: Evidence from Russia.
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Giles, M. W., Blackstone, B., & Vining, R. (2008). The supreme court in American democracy: Unraveling the linkages between public opinion and judicial
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cause growth? Journal of Economic Growth, 9, 271–303.
La Porta, R., Lopez-de Silanes, F., Pop-Eleches, C., & Shleifer, A. (2004). Judicial
checks and balances. Journal of Political Economy, 112(2), 445–470.
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Landes, W. M., & Posner, R. A. (1975). The independent judiciary in an interest-group
perspective. Journal of Law and Economics, 18(3), 875–901.
Linzer, D. A. & Staton J. K. (n.d.) A measurement model for synthesizing multiple comparative indicators: The case of judicial independence. Emory University
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Rogers, J. R. (2001). Information and judicial review: A signaling game of legislativejudicial interaction. American Journal of Political Science, 45(1), 84–99.
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relations in Mexico. New York, NY: Cambridge University Press.
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TOM S. CLARK SHORT BIOGRAPHY
Tom S. Clark, PhD, is associate professor of political science at Emory
University. His research and teaching focus on legal rule-making in the US
courts. His research and teaching focus on judicial politics, rational choice
institutionalism, constitutional theory and design, democratic political
institutions, and applied Bayesian statistical methods. Past and on-going
12
EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
research projects examine the interaction between the judiciary and other
institutions, interactions among actors within the judiciary, representation
on the courts, and empirical techniques for estimating judicial preferences
and the content of judicial decisions. Currently, Prof. Clark is examining the
theoretical and empirical analysis of legal rules and doctrine. His research
has been published in the American Political Science Review, the American
Journal of Political Science, the Journal of Politics, Political Analysis, the Journal
of Law, Economics & Organization, Political Research Quarterly, the Journal
of Theoretical Politics, the Journal of Empirical Legal Studies, the Wisconsin
Law Review, and the Criminal Law Bulletin. His book, The Limits of Judicial
Independence, was published in the Series in Political Economy of Institutions
and Decisions at Cambridge University Press and won the 2012 William
H. Riker Award for the best book in political economy from the Political
Economy Section of the American Political Science Association.
http://userwww.service.emory.edu/∼tclark7
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-
Judicial Independence
TOM S. CLARK
Abstract
For analytic clarity, judicial independence is best thought of as a concept that captures a variety of features of a judicial system. One common, and useful, approach
is to associate judicial independence with the ability of judges to, in practice, make
decisions the outcomes of which are not dictated by extrajudicial pressures. In this
spirit, research on judicial independence has examined a number of topics, two of
which are (i) the origins and determinants of political support for the judiciary and (ii)
the consequences of maintaining judicial independence for economic performance.
Original research on political support for the judiciary focused on how a system
of separation of powers can constrain judicial independence. Current research is
turning the question around, examining the role courts play as a component of a
system in which policy is made collectively by political institutions. Research on the
relationship between judicial independence and economic performance originally
examined whether greater judicial independence is associated with higher levels
of economic growth. Current research is expanding the focus to evaluate the conditions under which independent courts reinforce the stability of democratic government. As research on judicial independence moves forward, it should focus on
further conceptual clarification, the study of independent courts as complements
to other parts of a system of governance (rather than competitors to policy makers), and leveraging current advances for theoretically driven measurement of these
concepts.
INTRODUCTION
Judicial independence is a topic of perennial discussion in scholarly research.
The exact meaning of this phrase is often unclear, and this has had the particular benefit of encouraging a broad range of perspectives and substantive
questions in the literature. However, that richness in analytic perspective has
come at the cost of the development of a clear, well-focused research agenda.
Judicial independence is not a fixed concept; neither is it an analytic quantity
that merits investigation in and of itself. Judicial independence is a characteristic of a judicial system, the relevant features of which are dictated by
the research question undertaken—in other words, judicial independence
Emerging Trends in the Social and Behavioral Sciences. Edited by Robert Scott and Stephen Kosslyn.
© 2015 John Wiley & Sons, Inc. ISBN 978-1-118-90077-2.
1
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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
is a broad term potentially encompassing a number of institutional design
choices. Scholars study institutional choices not simply for the sake of studying the institutions but because of the effects those institutions are predicted
to have on individuals’ incentives.
More than a decade ago, this theme, as well as others, was examined in
a seminal edited volume concerned particularly with judicial independence
(Burbank & Friedman, 2002). The contributors’ views spanned a range of perspectives, from Burbank and Friedman’s view that judicial independence can
be clearly and rigorously defined in a way that encompasses a broad array
of disciplinary objectives to Kornhauser’s view that judicial independence
is not even a useful concept. My perspective is somewhere in between. As
noted, judicial independence is a term that in common usage captures a variety of institutional features that may or may not characterize a particular set
of judicial institutions.
I focus on a particular concept under this larger umbrella—the extent to
which judges are able to decide a case in a way that is relatively insulated
from external pressure that is irrelevant to the merits of the particular dispute
they seek to resolve. This concept of judicial independence is closely related
to Cameron’s (2002) definition of judicial independence in relation to power
analysis. Some may recognize in this conceptualization the more familiar distinction between de facto and de jure independence. That common distinction
refers to the difference between the degree of independence judges have in
practice (de facto) and the degree of independence judges have from a theoretical perspective in light of the formal institutions that characterize a judiciary
(de jure). Another example of a similar distinction is the difference Ferejohn
(1999) notes between the degree of institutional insulation given to judges
as servants in a judiciary and the degree of autonomy given to the judicial
institution itself.
In sum, the study of judicial independence has historically been broad, of
varied perspectives, and extensive. The normative constitutional theory literature concerned with the countermajoritarian problem (e.g., Bickel, 1962; Ely,
1980) is at its core a literature about judicial independence. So, too, is the vast
literature examining the extent to which judges are responsive to changes
in public opinion when they decide cases (e.g., Caldarone, Canes-Wrone,
& Clark, 2009; Flemming & Wood, 1997; Giles, Blackstone, & Vining, 2008;
McGuire & Stimson, 2004; Mishler & Sheehan, 1993). However, I focus here
on two literatures related to judicial independence as I described it —the
political conditions under which institutional independence can be maintained and the consequences of maintaining judicial independence.
Judicial Independence
3
POLITICAL SUPPORT FOR AN INDEPENDENT JUDICIARY
The first literature under the umbrella of judicial independence which I
examine is a research agenda concerned with the incentives political actors
have to create and maintain an independent judiciary and the types of
independence that can be maintained in a political system. Much of this
research has focused on the extent to which a paradigmatically independent
court—usually, the US Supreme Court—can, in practice, make decisions
without any influence from extrajudicial political incentives.
FOUNDATIONAL RESEARCH
In this vein, a body of research on what has come to be known as the
separation-of-powers model1 provides a number of foundational insights.
The contemporary literature on institutional confrontations has its roots in
a set of papers published roughly 20 years ago. Marks (1989) examined an
instance of Supreme Court statutory interpretation regarding Department
of Education regulations. His major contribution was the observation
that when the Supreme Court anticipates its decision may be revisited by
Congress and that the House and Senate can agree to an alternative policy,
then the Supreme Court will have an incentive to modify its decision. The
Court will do so in order to pick what is, from its own perspective, the best
policy from among those that will be immune from congressional override.
The following year, Ferejohn and Shipan (1990) made a similar argument
in the context of studying congressional control of the bureaucracy. Their
insight was that a political system with an independent judiciary can induce
a bureaucracy to make policy that more closely reflects the legislative
median than a political system without an independent judiciary. The
reason is that when a subcommittee of a legislature has gatekeeping power
to keep proposals from reaching the floor, a bureaucracy and committee
that are aligned together against the median can essentially collude against
the legislative median. An independent judiciary, by contrast, can use its
power of judicial review to dislodge policy and trigger an incentive for the
committee to bring a new proposal to the legislative floor.
The works of Marks and Ferejohn and Shipan both highlight the same feature of a system of separation of powers crosschecking vetoes and veto points
can work together to create situations in which institutional independence
1. The literature on judicial politics often discusses a “strategic model” of judicial decision
making—presumably in contrast to a model of judicial decision making in which judges are assumed
to be myopic and nonstrategic. That label is, in my opinion, not useful, as it describes a set of primitives
about judicial rationality, rather than a class of theoretical arguments and structures. For this reason, I
employ the term “separation-of-powers model” to refer to a class of models in which judges are modeled
as interacting with political actors in other institutions.
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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
is simply a function of whether the alignment of preferences among political actors provides that institution with “wiggle room.” For example, can
the judiciary leverage disagreement between the House and the Senate in
order to make policy that it likes and cannot be overturned because the Senate and the House will not agree on a different policy (even though each
may individually prefer to change the policy)? This particular representation of the separation-of-powers model has been a powerful, central source
of analysis in the theoretical and empirical literatures ever since, for example,
Bergara, Richman, and Spiller, (2003); Epstein and Knight (1998); Gely and
Spiller (1992); Martin (2001); and Segal (1997)). What is perhaps most perplexing is that while the model itself has not benefited from broad, systematic
empirical support, there have been instances in which scholars have found
some systematic evidence in support of the model’s dynamics, and anecdotal accounts often lend credence to the general mechanisms contemplated by
the separation-of-powers model.
Related to the separation-of-powers model but from a slightly different
theoretical perspective, scholars have also argued that maintaining an
independent judiciary can be in the interest of elected officials for reasons
other than instant policy outcomes. For example, Landes and Posner (1975)
and Whittington (2005) both advance arguments about the role that an
independent judiciary can play in maintaining intertemporal policy bargains. Judges who outlast their political contemporaries (because they have
longer tenures—often, e.g., life tenure) can help entrench political bargains
and therefore provide a form of insurance to political actors worried about
their policy bargains being undone in the future. At the same time, an
independent judiciary can help a contemporary political majority overcome
bad political bargains from the past that have outlived their usefulness
but are politically immune from reversal. Rogers (2001) makes a similar,
although distinct argument, suggesting that independent judges can help
provide informational feedback to political majorities about their policies
once put into place. Each of these myriad functions cannot be sustained, the
work argues, if judges are worried about political reprisal in the event they
make an unpopular decision.
CUTTING-EDGE RESEARCH
The study of how judicial independence can be maintained politically
has turned in a new direction in recent years, largely motivated by the
comparative study of judicial independence. Rather than simply ask why
politicians would maintain an independent judiciary, or what kinds of
policy choices a judiciary will make when it faces the possibility of political
reversal, this research asks how a politically savvy judiciary can work with
Judicial Independence
5
the tools it has to build its own degree of power. While it is often claimed that
the judiciary has “neither purse nor sword” and therefore must be mindful
of what political actors will do in response to its decisions, this vein of
research notes that the real source of power in a political society is the mass
public. If a court can marshall public support against a political majority,
then it may be more able to exercise judicial power—in other words, to act
more independently—than when it lacks public backing. Vanberg (2005)
advances this argument in the context of studying how different policy areas
vary in their salience and transparency to the public. Staton (2010) extends
Vanberg’s analysis by demonstrating that the judiciary itself may be able to
influence public attention to and information about judicial decisions. Clark
(2011) contributes to this line of enquiry by arguing that the interaction is
complicated by the fact that a legislature has a more direct connection to the
public and therefore has better information about who the public supports
in a convict between the courts and the legislature. The critical feature of
those works is the observation that a court’s relative strength vis-a-vis a
legislature is in part a function of the extent to which the public is willing to
side with the judiciary in a policy dispute. With its power to vote political
officials out of office, the public can hold politicians’ feet to the fire.
These works advance an important line of research concerned with how a
court can use a base of support against an elected majority. However, a question remains how a court can build that support and why a political majority
would create a court that could possibly evolve into such a powerful institution. Carrubba (2009) addresses this question and makes the argument that
initially weak courts have political advantages by enabling cooperation, at
the very least by serving as an information clearing house, among sovereign
(or semisovereign) entities. However, by facilitating that cooperation, a court
demonstrates to the public that the cooperation among the units is valuable
and in the public’s own interest. That demonstration builds into a base of support for the court that then enables the court to make decisions with which
the sovereign units may disagree but will have to abide by for fear of acting
against a cooperative arrangement the public has come to believe is valuable.
Indeed, the question of how a court can work with its (limited) resources and
relatively weak institutional capacity to build itself into a powerful, effective
component of a system of democratic governance is one that is central to the
understanding of judicial independence and will undoubtedly continue to
receive attention in the scholarly literature (e.g., Crowe, 2011).
THE CONSEQUENCES OF AN INDEPENDENT JUDICIARY
Another area of research in the study of judicial independence I want to
describe concerns the consequences of maintaining an independent judiciary,
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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
beyond the policy implications that result from individual disputes between
institutions. For example, there is a rich literature examining the relationship between judicial independence and political freedom, human rights and
economic growth (e.g., La Porta, Lopez-de Silanes, Pop-Eleches, & Shleifer,
2004). Here, I briefly detail some of the contours of this literature.
FOUNDATIONAL RESEARCH
The literature on the effects of maintaining an independent judiciary is as
deep as it is rich. It dates to at least Montesquieu and Madison and continues forward through contemporary work by North (1991); Weingast (1997);
Barro (1997, 2000); Acemoglu, Johnson, and Robinson (2001); and Frye (2004);
among others. The key insight from this literature is that when individuals are given power, the temptation to abuse that power is sufficient that
appropriate institutions must be designed in order to constrain governmental
power. This research directly implicates judicial independence in that courts
that are insulated from the political process have the necessary safeguards to
resist the threat of reprisal from those with power. To the extent that courts
can effectively constrain political power, then, potential abuses against property rights, human rights, political freedom, and other desirable social outcomes may be curtailed (e.g., Acemoglu & Johnson, 2005). Of course, that
proposition is not without controversy, and some have argued that economic
growth and freedom is more often due to the policies selected than the institutions used to select those policies (e.g., Glaeser, La Porta, Lopez-de Silanes,
& Shleifer, 2004). Of course, it is difficult to distinguish institutions from the
substantive outcomes they produce (e.g., Diermeyer & Krehbiel, 2003).
CUTTING-EDGE RESEARCH
In part because of the difficulty of identifying the extent to which institutions
and political outcomes cause each other, the research has turned to an analysis of the role that independent courts play as a part of a governing system
in which institutions mutually reinforce each other, rather than serve as constraints on each other. Reenock, Staton, and Radean (2013), for example, show
that the stability and survival of a democratic order is reinforced by judicial
institutions and the protection of property rights. Similarly, North, Wallis,
and Weingast (2009) argue that independent courts are important institutions
for controlling office holders seeking to maintain power through the use of
rent redistribution.
Judicial Independence
7
KEY ISSUES FOR FUTURE RESEARCH
Moving forward, the research on judicial independence, especially in the vein
of the two broad areas I have described, can benefit from three particular foci.
First, the definition of conceptual issues concerning judicial independence
should be advanced with an eye toward the development of a more comprehensive model of governance in which courts are embedded into a complete
theory of institutions that make policy as complements to each other, rather
than forces acting in tension with each other. Second, and related, the literature on judicial independence should shift its focus from seeing courts as
competitors to political institutions and instead see them as part of a system of governance. This view of judicial independence requires a focus on
the legal functions that courts serve with an eye toward the motivations for,
and consequences of, an independent judiciary. Third, theoretically driven
measurement should be more central to the literature on judicial independence, making use of rapidly increasing data and computational capacity.
I now elaborate on each of these themes.
CONCEPTUAL CLARIFICATION
One of the themes with which I started this essay and which also emerges
from the preceding discussion, is that the idea of judicial independence is a
broad, sprawling one that does not necessarily map to a single concept that
is implicated by all research concerning “judicial independence.” My discussion has focused on one particular concept—the extent to which courts’
decisions are not influenced by the preferences of competing political institutions. One might label this type of judicial independence judicial insulation.
An alternative aspect of judicial independence refers to the extent to which
judicial institutions serve different functions than do legislative institutions.
Alternatively, to what extent to judicial institutions act as part of a larger system of governance, as opposed to separate institutions disconnected from
the political order. One might label this type of judicial independence judicial autonomy. Still a third variant of judicial independence might tap into
the extent to which a court has the institutional resources and capacity to
carry out its functions, to collect information on its own, and to functionally
operate without daily support from other political institutions. One might
label this type of judicial independence judicial integrity. Surely, there are
other theoretical conceptualizations of judicial independence that have relevance for myriad research questions. My goal here is simply to encourage a
richer conceptualization in the literature that avoids the folding of potentially
cross-cutting ideas into one umbrella term, such as judicial independence.
8
EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
COURTS AS LEGAL COMPLEMENTS
To reiterate, one of the defining features of the traditional positive political
theory literature on the separation-of-powers model, as well as the literature
on judicial independence and economic growth, is that it generally considers
courts as simply additional veto points in the political system. This approach
to thinking about the role courts play in governance has been fruitful and
has taken us very far in understanding the conditions under which independent judiciaries are politically desirable, the consequences of limited judicial
independence for policy making in a system of cross-checking vetoes, and the
incentives courts have for using their limited institutional capacity in an institutional confrontation. However, it is time to build our theoretical models
further, and a promising avenue is to incorporate the substantive differences
between judicial decision making and legislative decision making. Legislatures make policy in a very wholesale-level way—they make blanket policy
ex ante, and they do so with the benefit of particular institutional prerogatives,
such as a generally unrestricted agenda, the process of committee hearings,
and greater levels of open participation and public lobbying. Courts, by contrast, make policy in a more retail-level way. They decide individual cases
ex post, and appellate courts do so with an eye toward crafting workable
rules that can be implemented by lower courts going forward. Judicial policy is structured by the fact that courts are passive institutions waiting for
disputes to be brought to them (rather than having the ability to go out and
seek issues to address), and the information and resources they have to do
so is very different in nature. This is not to say that courts are inferior policy
makers but rather that the benefit from different resources and act in different
capacities. As such, we might expect that part of the incentive for maintaining an independent judiciary lies in the complementarities of judicial and
legislative policy. Just as the foundational research on political support for
judicial independence asked what role courts play in governance, the literature should return to these questions with the intervening lessons in hand
and recast courts as complements to the political process rather than strictly
competitors to legislatures.
THEORETICALLY DRIVEN MEASUREMENT
A third promising avenue for future research is measurement. How best to
measure judicial independence is a question that has been long debated in
the literature (for a review, see Ríos-Figueroa & Staton, 2014). However, as
my opening comments suggest, that broad question is not the right one to be
asking. Judicial independence means different things in the context of different analytic settings, and, as a consequence, how best to measure the relevant
concept can only be answered in the context of a particular research question.
Of course, measurement of latent concepts, such as the degree of institutional
Judicial Independence
9
independence a court may have, is a particularly tricky problem, but modern advances in measurement theory and practice may help alleviate some
of the thorns in this thicket. For example, as Ríos-Figueroa and Staton show,
there are many possible indicators of judicial independence that may tap into
common underlying concepts but may also be individually complicated by
additional concepts that drive the indicators, at least in part. Linzer and Staton (n.d.) introduce an approach that makes use of myriad indicators to distill
the common underlying dimension that explains variation in indicators of
judicial independence. While their measure is not necessarily the measure of
judicial independence for all research questions, it has the benefit of being
fairly easy to interpret and is extensible in the event a researcher wants to
employ different indicators to capture alternative conceptualizations of judicial independence.
CONCLUSION
Scholars have studied a number of concepts under the umbrella of “judicial
independence.” I propose further conceptual clarification and focus on a particular component of this term—the capacity of courts to make decisions that
are separate from extrajudicial influences. In this vein, there are two bodies of work that are particularly relevant and experiencing new directions.
First, scholars studying political support for independent courts are increasingly turning from a view of courts as competitors to other policy-making
institutions to seeing courts as a complementary part of a system of governance. Second, and related, scholars studying the consequences of independent courts for the performance of a system of governance are making
considerable progress in advancing our understanding of the relationship
between the rule of law and executive constraints on government power. As
the literature moves forward, scholars should push for further conceptual
clarification; advance the study of courts as part of a system of governance,
rather than a constraint on governance; and make use of contemporary tools
for theoretically driven measurement of concepts related to these arguments.
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Acemoglu, D., & Johnson, S. (2005). Unbundling institutions. Journal of Political Economy, 113(5), 949–995.
Acemoglu, D., Johnson, S., & Robinson, J. A. (2001). The colonial origins of comparative development: An empirical investigation. American Economic Review, 91(5),
1369–1401.
Barro, R. (2000). Democracy and the Rule of Law. In B. Bueno de Mesquita & H.
Root (Eds.), Governing for Prosperity (pp. 209–231). New Haven, CT: Yale University
Press.
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Barro, R. J. (1997). Determinants of economic growth: A cross-country empirical study.
Cambridge, MA: MIT Press.
Bergara, M., Richman, B. D., & Spiller, P. T. (2003). Modeling supreme court strategic decision making: The congressional constraint. Legislative Studies Quarterly, 28,
247–280.
Bickel, A. M. (1962). The least dangerous branch: The supreme court at the bar of politics.
New Haven, CT: Yale University Press.
Burbank, S. B., & Friedman, B. (Eds.) (2002). Judicial independence at the crossroads: An
interdisciplinary approach. Thousand Oaks, CA: Sage Publications.
Caldarone, R. P., Canes-Wrone, B., & Clark, T. S. (2009). Partisan labels and democratic accountability: An analysis of state supreme court abortion decisions. The
Journal of Politics, 71(02), 560–573.
Cameron, C. M. (2002). Judicial independence: How can you tell it when you see
it? And, who cares?. In S. B. Burbank & B. Friedman (Eds.), Judicial independence
at the crossroads: An interdisciplinary approach (pp. 134–147). New York, NY: Sage
Publications.
Carrubba, C. J. (2009). A model of the endogenous development of judicial institutions in federal and international systems. Journal of Politics, 71(1), 55–69.
Clark, T. S. (2011). The limits of judicial independence. New York, NY: Cambridge University Press.
Crowe, J. E. (2011). Building the judiciary. Princeton, NJ: Princeton University Press.
Diermeyer, D., & Krehbiel, K. (2003). Institutionalism as a methodology. Journal of
Theoretical Politics, 15(2), 123–144.
Ely, J. H. (1980). Democracy and distrust: A theory of judicial review. Cambridge, MA:
Harvard University Press.
Epstein, L., & Knight, J. (1998). The choices justices make. Washington, DC: C.Q. Press.
Ferejohn, J. (1999). Independent judges, dependent judiciary. Southern California Law
Review, 72(1), 353–384.
Ferejohn, J., & Shipan, C. (1990). Congressional influence on bureaucracy. Journal of
Law, Economics & Organization, 6(Special Issue), 1–20.
Flemming, R. B., & Wood, B. D. (1997). The public and the supreme court: Individual justice responsiveness to American policy moods. American Journal of Political
Science, 41(2), 468–498.
Frye, T. (2004). Credible commitment and property rights: Evidence from Russia.
American Political Science Review, 98(3), 456–466.
Gely, R., & Spiller, P. T. (1992). The political economy of supreme court constitutional
decisions: The case of Roosevelt’s court-packing plan. International Review of Law
and Economics, 12(1), 45–67.
Giles, M. W., Blackstone, B., & Vining, R. (2008). The supreme court in American democracy: Unraveling the linkages between public opinion and judicial
decision-making. Journal of Politics, 70(2), 293–306.
Glaeser, E. L., La Porta, R., Lopez-de Silanes, F., & Shleifer, A. (2004). Do institutions
cause growth? Journal of Economic Growth, 9, 271–303.
La Porta, R., Lopez-de Silanes, F., Pop-Eleches, C., & Shleifer, A. (2004). Judicial
checks and balances. Journal of Political Economy, 112(2), 445–470.
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Landes, W. M., & Posner, R. A. (1975). The independent judiciary in an interest-group
perspective. Journal of Law and Economics, 18(3), 875–901.
Linzer, D. A. & Staton J. K. (n.d.) A measurement model for synthesizing multiple comparative indicators: The case of judicial independence. Emory University
working paper.
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City College v. Bell (PhD dissertation), Washington University.
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institution? The impact of public opinion on supreme court decisions. American
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survival. Journal of Politics, 75(2), 491–505.
Ríos-Figueroa, J., & Staton, J. K. (2014). An evaluation of cross-national measures of
judicial independence. Journal of Law, Economics, & Organization, 30(1), 104–137.
Rogers, J. R. (2001). Information and judicial review: A signaling game of legislativejudicial interaction. American Journal of Political Science, 45(1), 84–99.
Segal, J. A. (1997). Separation-of-powers games in the positive theory of congress and
courts. American Political Science Review, 91, 28–44.
Staton, J. K. (2010). Why do judges go public? Constitutional review and judicial public
relations in Mexico. New York, NY: Cambridge University Press.
Vanberg, G. (2005). The politics of constitutional review in Germany. New York, NY:
Cambridge University Press.
Weingast, B. R. (1997). The political foundations of democracy and the rule of law.
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exercise of judicial review by the United States supreme court. American Political
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TOM S. CLARK SHORT BIOGRAPHY
Tom S. Clark, PhD, is associate professor of political science at Emory
University. His research and teaching focus on legal rule-making in the US
courts. His research and teaching focus on judicial politics, rational choice
institutionalism, constitutional theory and design, democratic political
institutions, and applied Bayesian statistical methods. Past and on-going
12
EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
research projects examine the interaction between the judiciary and other
institutions, interactions among actors within the judiciary, representation
on the courts, and empirical techniques for estimating judicial preferences
and the content of judicial decisions. Currently, Prof. Clark is examining the
theoretical and empirical analysis of legal rules and doctrine. His research
has been published in the American Political Science Review, the American
Journal of Political Science, the Journal of Politics, Political Analysis, the Journal
of Law, Economics & Organization, Political Research Quarterly, the Journal
of Theoretical Politics, the Journal of Empirical Legal Studies, the Wisconsin
Law Review, and the Criminal Law Bulletin. His book, The Limits of Judicial
Independence, was published in the Series in Political Economy of Institutions
and Decisions at Cambridge University Press and won the 2012 William
H. Riker Award for the best book in political economy from the Political
Economy Section of the American Political Science Association.
http://userwww.service.emory.edu/∼tclark7
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Judicial Independence