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Is the judicial branch able to function relatively free from the interferences and
pressures of the other two branches of government? An independent judiciary is a key
component in the American constitutional system of the separation of powers and checks
and balances. In Federalist 78, Hamilton saw an independent judiciary as essential
because “the courts of justice are to be considered as the bulwarks of a limited
Constitution against legislative encroachments.” Later he adds that he and the founders
also envision an independent judiciary as a safeguard against the “occasional ill humors
of society.” Indeed a number of scholars have focused on the unique ability of the
federal judiciary, based on the life tenure on its judges, to tackle tough policy areas where
the Executive and Congress are unable or unwilling to act, or to transform the terms of
debate over a controversial policy area. (Graber, 1993 and McCann, 1994) But when
political scientists speak of “the judiciary” or “the judicial branch”, exactly what kind of
institution are they referring to? Most studies of judicial independence have exclusively
focused on the Supreme Court and very few scholars contemplate judicial independence
by including analysis of multiple levels of the judiciary.
This article seeks to re-conceptualize the judicial independence question. Instead
of assessing the judicial independence of the Supreme Court alone, it also assesses the
independence of the Circuit Courts of Appeals from the Supreme Court and the other
branches of government and the resulting implications. Using the case study of judicial
behavior in American immigration law, I demonstrate how focusing on the Supreme
Court leads to an incomplete and very misleading picture of judicial behavior. How
much does studying the Supreme Court explain what is going on in the lower courts? Put
Convention