Vicki C. Jackson

Narratives of Federalism Of Continuities and Comparative Constitutional Experience

The dramatic title of the conference for which this Essay was written raises the question, what is the Constitution “in exile” from? The “Constitution in Exile” might refer to an entire set of doctrines and principles purportedly banished from constitutional discourse in the post–New Deal era. On the possible claim that this “exiled” Constitution is being repatriated, there is, on the one hand, little doubt that the Court has embarked on a revival of federalism as a judicially enforceable constraint on national power. Working from the infrequently changed text of an old, written constitution, the Supreme Court in the last decade has engaged in a substantial reworking of the outlines of the federal and state governments’ relative constitutional powers. The Court’s rather stark departures from an earlier, post– World War II era federalism landscape include its implicit abandonment of the premise of Garcia v. San Antonio Metropolitan Transit Authority, which primarily relied on the political process to

Judicial Independence: Structure, Context, Attitude

Judicial independence and impartiality have become transnational legal norms, instantiated in many national constitutions and in the core human rights covenants to which the great majority of the nations of the world subscribe.1 Judicial independence has received specific attention from the United Nations, in part because widespread official agreement on adherence to the values of judicial independence is too often matched by disregard for judges’ independence in concrete instances.

Packages of judicial independence: implications for reform proposals on the selection & tenure of Article III judges

Dædalus Fall 2008 Judicial independence is necessary to assure the rule of law and protection of rights; accountability in some form is necessary for legitimate judicial review in a democracy.1 Rules about selection, tenure, and removal of judges are important parts of the “package” of provisions, practices, and institutional designs that influence the degree and shape of judicial independence and public accountability. This package includes legal, institutional, political, psychological, sociological, and cultural elements that affect judicial independence in complex ways. These elements are often interdependent; a change in one may create, or call for, changes in others. This essay focuses on the selection and tenure rules that are parts of the package of institutional designs protecting the independence of Article III federal judges, in light of recent controversies over the nomination process and proposals for “term limits” for Supreme Court justices. The U.S. Supreme Court justices, and the judges who serve in the federal district courts and circuit courts of appeals, are all Article III judges, appointed and holding of1⁄2ce pursuant to Article III of the Constitution.2 Nominated by the president and con1⁄2rmed by the Senate, Article III judges hold of1⁄2ce “during good Behaviour” and their salary cannot be reduced once in of1⁄2ce. On conventional understandings, they can be removed from of1⁄2ce only by impeachment in the House and conviction in the Senate, by a two-thirds vote, for “Treason, Bribery, or other high Crimes and Misdemeanors.” Article III judges are not the only federally appointed judges, but function as part of a much larger system of judging and justice that includes non-Article III federal judges and the state-court judges. Vicki C. Jackson