February 2014 Vol. 112 No. 4 THE REVIEW

Judicial Independence and Social Welfare

Michael D. Gilbert

Judicial independence is a cornerstone of American constitutionalism. It empowers judges to check the other branches of government and resolve cases impartially and in accordance with law. Yet independence comes with a hazard. Precisely because they are independent, judges can ignore law and pursue private agendas.

For two centuries, scholars have debated those ideas and the underlying trade-off: independence versus accountability. They have achieved little consensus, in part because independence raises difficult antecedent questions. We cannot decide how independent to make a judge until we agree on what a judge is supposed to do. That depends on one's views about complicated issues like minority rights, the determinacy of law, and the nature of legalism itself. These complications have paralyzed the debate.

This Article presents a way forward. It reduces the debate about independence to a small set of intuitive parameters and shows how they interact. The result is a framework for identifying the optimal degree of judicial independence. The framework transcends the thorny issues bogging down the debate by allowing scholars with diverse views and methodologies to input whatever assumptions they like and get an answer to the question "how independent should judges be?"

This framework generates important insights. It shows that independence can implicate a new and fundamental trade-off. Independent judges make some nonlegalistic decisions, and each such decision imposes a high cost on society. Dependent judges make more nonlegalistic decisions, but each imposes a low cost on society. The framework also shows that society may prefer a dependent judge to adjudicate minority rights and that the determinacy of law can be irrelevant to the choice between an independent and a dependent judge. Finally,it shows that the debate rests on deep and contestable assumptions about the value of law. The question is not whether the legalistic decisions that independence is supposed to facilitate are better than nonlegalistic alternatives.The question is "how much better?"

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