ECONOMY

282 the judiciary and the role of law
Shugart 2003), by the judiciary’s control over its own budget and administration
(Russell 2001; Domingo2000), or by discipline and removal of judges (Abraham
2002). Scholars advocating an institutional approach to judicial independence focus
on either one particular institutional rule or a combination of rules which vary the
degree of judicial independence (see Epstein, Knight, and Shvetsova 2002).
Under the second approach to judicial independence, scholars disregard these
various institutional rules, 8 which vary among countries, and instead focus on the
ability of individual judges to exercise discretion in deciding particular cases. Ferejohn
(1999), the leading advocate of this approach, defines judicial independence
in the American legal system as “independent judges within a dependent judiciary”
(p. 381). For Ferejohn, judges are “independent” if they are free to make decisions
without fear of consequence. At the same time, Ferejohn, like Hamilton, recognized
that the federal judiciary is “institutionally dependent on Congress and the president,
for jurisdiction, rules, and execution of judicial orders” (p. 353). Despite the
Founding Fathers’ recognition of this important connection between the courts and
other branches of government, most legal and political scholars have focused on the
institutional approach to judicial independence.
The New Institutionalist and PPT literatures define judicial independence as an
outcome that emerges from strategic interactions among the judiciary, the legislature,
and the executive. Indeed, using a model of the strategic analysis of the judiciary
with the separation-of-powers system, McNollgast (2006) argues that judicial
independence is not the automatic result of constitutional or statutory provisions
that establish life tenure for judges, nor is judicial independence limited by checks
and balances or legal traditions. Rather, judicial independence waxes and wanes with
changes in the political composition of our three branches of government. Thelogicof
this claim can be seen using Figure 15.1 above. The key observation is that the room
for judicial independence—the ability to make judicial determinations that are not
overturned by the political branches—is in part a function of the distance between
P and C: any judicial ruling in this region is a policy equilibrium since no legislation
can pass to overturn it; that is, any proposal that makes the president better off makes
Congress worse off, andviceversa.
This logic implies that, during periods of divided government, the space between
P and C is large. Therefore one chamber of the legislature or the executive branch
is likely to protect judicial independence by vetoing (or threatening to veto) legislative
actions that would overturn court decisions or, more aggressively, threaten
the judiciary. By contrast, McNollgast’s (1995) approach implies that unified control
of government weakens judicial independence, as the legislature and executive can
more easily coordinate on governmental changes that may undermine the judiciary’s
independence. Of course when there is not divided government, appointments to the
judiciary make the preferences of the judiciary close to those of P and C.
⁸ Although not offering a concrete alternative approach, Stephenson 2001 and Cameron 2002 reject
defining judicial independence in terms of institutional rules. Cameron 2002 asserts that “explicit
structural protections” may be only “parchment barriers to an aggressive executive or legislature
unconstrained by voters who value judicial independence” (p. 139).