Judicial Independence: Evidence from a Natural Experiment

• Author: Scott E. Graves,Robert M. Howard,Pamela C. Corley
• DOI: http://doi.org/10.1111/lapo.12014
• Published date: 01 January 2014
• Date: 01 January 2014

Judicial Independence:

Evidence from a Natural Experiment

SCOTT E. GRAVES, ROBERT M. HOWARD, and PAMELA C. CORLEY

In this article, we directly test the presence of judicial independence by examining

judicial recess appointees who have later been confirmed by the Senate to full-

time Article III judicial positions. Specifically, we compare the votes of recess-

appointed courts of appeals judges during their temporary appointment tenure

with a similar period following Senate confirmation. We find substantial differ-

ences in pre- and postconfirmation voting, suggesting that the structural protec-

tions of the Constitution provide judges a certain amount of independence.

INTRODUCTION

Judicial independence is an essential component of our legal system. For

example, former Supreme Court Justice Sandra Day O’Connor made an

impassioned case for the importance of judicial independence when she

argued “[l]aws properly adopted by a country must be applied, interpreted

and enforced by an independent judiciary” (2006). To promote indepen-

dence, Article III of the Constitution guarantees judges life tenure and an

undiminished salary. As Hamilton explained in Federalist 78:

Periodical appointments, however regulated, or by whomsoever made, would,

in some way or other, be fatal to [the courts’] necessary independence. If the

power of making them was committed either to the executive or legislature,

there would be danger of an improper complaisance to the branch which

possessed it; if to both, there would be an unwillingness to hazard the displea-

sure of either. (Rossiter 1961, 471)

Thus, these structural protections were intended to insulate judges from

the political process and allow them to make decisions “without regard to the

preferences of politically accountable officials” (Rosenberg 1992, 371), and

the assumption is that these provisions create an independent judiciary. To

date, however, no one has empirically tested this assumption because most

of the previous literature on the decision making of the federal judiciary

examines the behavior of judges who already have Article III protections

(see, e.g., Sala and Spriggs 2004; Bergara, Richman, and Spiller 2003; Cross

and Nelson 2001; Ferejohn 1999; Segal 1997; Spiller and Gely 1992). Thus,

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LAW & POLICY, Vol. 36, No. 1, January 2014 ISSN 0265–8240

© 2013 The Authors

Law & Policy © 2013 The University of Denver/Colorado Seminary

doi: 10.1111/lapo.12014

previous studies have not been able to ascertain whether Article III does,

in fact, provide judges with any degree of independence, instead assuming

judicial independence exists and then proceeding to test under what condi-

tions Article III judges are constrained. To remedy this state of affairs, we

provide an innovative test of judicial independence. Specifically, we compare

the votes of recess-appointed courts of appeals judges during their temporary

appointment tenure with a similar period following Senate confirmation. Exam-

ining recess appointees who have ultimately been confirmed offers a unique

opportunity to isolate decision making with constitutional protections and

decision making without. A recess appointee who has not been confirmed is

operating under conditions of complete (or almost complete) constraint. If

there are differences between their voting behavior before and after confir-

mation, this supports the assertion of judicial independence.

While there have been previous examinations of recess appointments

and voting (Graves, Howard, and Corley 2009), as we explain in more

detail later on in this manuscript, among other things, this manuscript is

the first to present a theoretical justification for differences in voting pre- and

postconfirmation of recess appointees and the first to offer a control model

to test for acclimation effects.

JUDICIAL INDEPENDENCE

We do not argue that judges are completely independent after they have been

confirmed. The other branches have control over jurisdiction, court creation,

appointment, enforcement of court rulings, appropriations for the operation

of the courts, and can impeach judges. Thus, there are many ways in which

Congress and the president can exert influence over the federal judiciary. This

has led many scholars to test the separation of powers (SOP) model, which

holds that judges are constrained in their decisions by the policy preferences

of Congress and/or the president (see Bergara, Richman, and Spiller 2003;

Cross and Nelson 2001; Ferejohn 1999; Spiller and Gely 1992, finding

support for the SOP model; but see Sala and Spriggs 2004; Segal 1997, finding

no support for the SOP model). While avoiding this debate, we do argue that

the structural protections of the Constitution provide some degree of judicial

independence to the federal judiciary. Specifically, we argue that while there

might be constraint imposed by the other branches of government, indepen-

dence means that there is at least some freedom to impose voting preferences

inconsistent with the preferences of the electoral branches of government.

We recognize that there are different conceptions of judicial independence.

For example, one particularly expansive conception of judicial independence

claims that not only are judges able to make decisions free of influence from

coordinate branches of government, but they are free also from the private

sector and even from within the judiciary (see Kornhauser 2002). Let us

emphasize that our definition of judicial independence in the context of our

Graves et al. JUDICIAL INDEPENDENCE 69

© 2013 The Authors

Law & Policy © 2013 The University of Denver/Colorado Seminary