Interdependence Classics: Deanelle Reece Tacha, Independence of the Judiciary for the Third Century

This is the first in a series of occasional posts, highlighting scholarship and writings on the relationship between the court system and its external environment.

Tenth Circuit Judge Deanelle Reece Tacha’s 1995 article, Independence of the Judiciary in the Third Century, offers a short and engaging summary of the dependency issues that the federal courts faced at the end of the twentieth century.  Much of her description and analysis is equally relevant today.

Judge Tacha notes from the outset that “[e]xamining the independence of the judiciary and perceptions about its erosion requires that one see the issue in both the institutional and the individual sense.”  It is natural, and in a sense traditional, to think of independence in terms of tenure protection. But while life tenure protects individual judges from the vagaries of the political climate, it does not protect the judiciary as a whole from resource-related strains.

The article focuses on three areas in which Congress strained the federal judiciary’s institutional flexibility in the 1990s: the expansion of federal jurisdiction, rulemaking reform, and the passage of the Federal Sentencing Guidelines.  None of these changes directly removed resources from the judiciary or formally threatened the independence of individual judges, but each contributed to internal pressures that further bureaucratized and diminished the independence of the courts as a whole. New federal legislation in areas of criminal law, family leave, civil rights, and workplace safety legislation flooded the federal courts with new cases, but without a concomitant rise in court funding or staffing.  The Civil Justice Reform Act of 1990 emphasized case management statistics to a degree that threatened “the ability [of district judges] to handle their caseloads according to judicial docketing principles.”  And the Sentencing Guidelines were seen by many judges as an impermissible curb on judicial discretion.

Judge Tacha does not specifically find fault with the legislation itself, but rather with the fact that the judiciary was not sufficiently consulted before it was passed.  She urges the judiciary to be an active participant “on those topics which are appropriate for judicial comment” — that is, those issues affecting the courts’ ability to do their work fairly, efficiently, and independently.  She further urges lawmakers to familiarize themselves more with the issues affecting the courts.

The article provides a useful exposition on the dual nature of judicial independence: the decisional independence of individual judges, and the operational indepedence of the judiciary as a whole.

Full citation: Deanelle Reece Tacha, Independence of the Judiciary for the Third Century, 46 Mercer L. Rev. 645 (1995)

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