Presidential Commission on the Supreme Court of the United States
draws into question the Court’s legitimacy. But an observer who believes that the Court has made decisions that are wrong in some fundamental way might couch that criticism in terms of legitimacy.
Finally, assertions about illegitimacy might combine these two elements: both a criticism of the Court or its decisions and a commentary on its ability to command obedience. The claim may be that the Court has become so partisan, political, ideological, or that the Court’s decisions are so fundamentally wrong, that it is not entitled to obedience.
Because claims about legitimacy play a large role in debates about the Court—and because the term has different possible meanings—there is a risk that participants in these debates will talk past each other and not clarify their areas of agreement or disagreement. For example, a claim that the Court is illegitimate because of the way in which some of its members have been appointed or because it made a decision based on objectionable motivations might be met with an assertion that the Court still commands substantial popular support. However, the assertion about popular support is not truly responsive to the evaluative claim about the Court. Conversely, a weakening of the Court’s popularity might be taken as evidence that the Court has embarked on a misguided course of decisions—which need not be true.
In fact, the relationship between popular acceptance of the Court and the correctness of the Court’s decisions is a complex question that must be analyzed in its own right. Competing assertions about legitimacy that do not recognize the complexity of that term can obscure, rather than focus, the terms of debate.
2. Judicial Independence
Judicial independence is also invoked in varying ways. In one sense, judicial independence is commonly, and correctly, thought to be a core requirement of the rule of law. Judges must be free to decide cases without fear that they will be punished by the government or will suffer physical or financial harm at the hands of private individuals. They must not be corrupted by bribes. Their rulings must not be influenced by personal favoritism or family relationships.
In those ways, judicial independence is not different from what we expect of other government officials: that they be able to, and do, carry out the responsibilities of their office without fear or favor. But the ideal of judicial independence might be understood to include qualities that are distinctive and indispensable components of the work of judges in particular.
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