Alexander Hamilton once described the judiciary as the least dangerous branch of government, since it controlled no armies and lacked spending power. This has inspired constitutional designers to try to empower independent courts to check other branches.
Judicial independence, it has been said, is like freedom: everyone thinks it is desirable, but it is hard to pin down and perhaps easiest to observe in its absence. We can all agree that a judge who takes instruction from politicians or receives bribes is violating their duty. But it is hard to figure out how to make judges more independent.
One thing is for sure: Judges have become much more important in governing than in earlier eras. Judges in various jurisdictions may decide how citizens rights are exercised, how branches of government interact, and even who holds office in some countries. This has led to a lot more attention to how judges obtain and wield power.
Given contemporary attention to the rule of law, constitutional drafters increasingly are incorporating provisions that insulate the judiciary from external interference. A separate dimension concerns the extent of judicial power. Constitutional review, the power to review legislation for constitutionality, has spread to nearly three-fourths of all constitutional systems, including many nondemocracies. More than half of these countries have a special constitutional court to exercise this power. Some scholars have suggested this gives rise to “juristocracy” or rule by courts. And with the expansion of the judicial role, new powers have been granted to courts.
Two dimensions: independence and power
In our analysis, we construct an index of six different determinants of independence: whether or not the constitution declares judicial independence as a value; whether or not judges have protections from salary reductions; whether they have life tenture; whether their appointments are insulated; whether they can be removed only for cause; and whether multiple bodies are involved in removal. Such provisions were relatively rare in constitutions written just a few decades ago.
We also construct a six-element index of judicial powers, including judicial review in general, the power to supervise elections, the power to declare political parties unconstitutional, a role in removing the executive, an ability to review declarations of emergency, and the power to review treaties.
Shifts over time and space
As the figures on this page show, constitutions vary in terms of how many different elements of these indices they have. Figure 2 shows the average values across time, while Figure 3 below examines variation across space. Studies by Ginsburg and Versteeg (2014) and Brinks and Blass (2018), show that formal judicial powers tend to flow from extra-constitutional factors such as the political configuration at the time of drafting. And how these powers are exercised depends in part on how independent the courts are.
The effectiveness of constitutional provisions for judicial independence is debated. Hayo and Voigt characterize the problem as being about a gap between de jure and de facto judicial independence, but measuring de facto independence is a tricky task. They examine the relationship between de facto judicial independence and economic development. Melton and Ginsburg (2014) show that the combination of insulated appointments and protection from removal is the most reliable determinant of de facto judicial independence.
Judicial power can rise, but also fall. Recent years have seen attacks on courts in many countries, especially by politicians who are trying to take over their systems. The story of judicial power and independence continues to evolve.
Figure 3. Grid Map of Judicial Independence
Tom Ginsburg is co-director of the Comparative Constitution Project and Leo Spitz Professor of Law and Ludwig and Hilde Wolf Research Scholar at the University of Chicago Law School.