Famously, the U.S. Constitution provides that the judicial power of the United States is separate from its executive and legislative powers, with a caveat. That is, the power of the President to nominate justices to the Supreme Court, for the Senate to confirm their appointment.[1] It is this enduring issue of constitutional governance, relevant even today,[2] which I wish to briefly consider. The U.S. has the longest lasting practice of the separation of powers and I believe it is instructive for us all to look carefully at the practice of government there, to learn how that democratic system continues to endure under the pressures of the present day. I will first present examples of some of the views of the Presidents in the past as to judicial independence, which seem to be united and represent bipartisan agreement. I will then consider the meaning of the word “independence” as applied to the branches of government as understood during the era of the Framers. Finally, I will briefly consider the aggrandizing tendency of government where judicial independence, and independence of the three branches generally from each other, does not exist or exists imperfectly.
First, before I address the more recent matters, it is instructive to consider briefly the bipartisan views in previous times. President Obama, in his speech before nominating Justice Kagan, observed that a Justice must be “an impartial guardian of the law”.[3] His immediate predecessor, President Bush likewise said upon the nomination of the present Chief Justice that a Justice must be of “superb credentials and the highest integrity”, [4] which President Biden echoed when he said that a Justice must have a “brilliant legal mind with the utmost character and integrity”.[5] President Reagan recognised the role of the Supreme Court as the “final arbiter” of constitutional and legal litigation, whose Justices must, among other things, “be attentive to […] the proper role of the courts in our democratic system”.[6] Such views are no postwar development, but ones which are firmly established in the history and practice of American government. Indeed, during the nineteenth century, the ideas of “impartiality” and “independence” were repeated ad nauseum by Congressmen, Presidents and other public figures, even if the reality of judicial politics at that time was grayer,[7] as infamously illustrated by the “impropriety” of Chief Justice Taney in the Dred Scott case.[8] Whereas judicial impartiality and independence is well established in the understanding of the Constitution across the ages, the results of departing from it, preceding the Civil War, appear catastrophic. While the statements I have compiled from Presidents past and my overview of the history are not exhaustive, they do give a representative view across time, particularly in recent times, that the independence of judgment exhibited by a Justice has been a key virtue sought for when nominating a person to the Supreme Court, which as we shall see, is supported by the evidence from the founding era. It might well be that the Justices were nominated because the President perceived that they would be inclined, by dint of their judicial philosophy and practice, towards rendering judgments more favourable to the President’s policies. Nevertheless, the hope of alignment, and actual alignment because of merely judicial reasons, are distinct and separate from partisan adjudication. There seems to be no indicia suggesting anything other than the desire for legal adjudication on the part of nominees.
Now, using words like “impartial” and “independent” and alluding to “the proper role of the courts in our democratic system”[9] must be coupled with properly grasping what these terms mean. Here, considering the documents of the framing of the Constitution might yield some lights for us, in thinking about the need for the separation of powers. Besides Federalist No. 78, I have in mind, in particular, a speech James Madison gave on Tuesday, July 17th, 1787, during the Constitutional Convention. Madison began by saying:
“If it be essential to the preservation of liberty that the Legisl: Execut: & Judiciary [sic.] powers be separate, it is essential to a maintenance of the separation that they should be independent of each other”.[10]
It is clear from this that Madison considered the formal separation of the three powers of the federal government alone inadequate without those branches also being “independent of each other”.[11] What, then, does independence mean? In this speech, Madison’s primary concern was to prevent the executive’s dependence on the legislative power though the principles it relies on our relevant to our discussion too. In illustrating independence, then, Madison observed that if the judiciary were dependent wholly on the legislature for its appointment, judges would be keen to ingratiate themselves with legislators and thus make the legislature “the virtual expositor, as well as the maker of the laws”.[12] One may extend this observation to say that, a dependence of the judiciary on the legislature would allow tyrannical laws to be imposed with impunity, heedless of constitutional constraints. Likewise, if the executive were dependent on the legislature, the latter would be made the de facto “Executor as well as the maker of laws; & [sic.] then […] tyrannical laws may be made that they may be executed in a tyrannical manner”.[13] Madison considered that the great discretion enjoyed by the executive in its decision making made its impeachment by the judiciary difficult because no stable rule to judge discretionary executive conduct in a legal tribunal could be easily formulated.[14] However, he thought that this reason as well as the direct responsibility of the executive as to “the collective interest” and “security” rendered a union between the executive and the legislature all the more dangerous.[15] When the political branches are “unified” under a single party, as has happened 48 times since 1857,[16] it is even more necessary for the judicial branch to maintain its independence, arising from its unique apolitical status, for the federal government to be ruled by law and not by narrow factional interests.
From the foregoing, it seems that for the powers to be separate from each other is a bare formality without the substantial institutional and personal content of being “independence”. I say ‘institutional and personal’ because Madison clearly thinks that a malformed institutional relationship between the separate branches will compromise the independence of actors within the respective branches and thus undermine the constitutional role of the branches themselves. Madison is conscious, therefore, of the fact that the institutions inhere in the persons who form them. So, while these institutions might outlive the particular individuals who form them at any given time, it is necessary that the structure of the institutional relationships themselves must be so constructed as to ensure the longevity of the free government they are intended to support by removing occasions where the separate constitutional actors might be tempted to compromise their independence. This interpretation seems apparent from Madison’s words, where he said that a dependence of the Judges on the legislature might tempt them to “cultivate the Legislature [sic.] by an undue complaisance”.[17] It follows by analogy that if the Justices were beholden to the executive in some way concerning their continuance in office or otherwise, they would be tempted to cultivate it by an undue complaisance also. This is the very thing that Article III is structured to prevent, as I shall explain next.
It appears that the independence of the judiciary from either branch of government is for it to be a neutral expositor of the laws and the Constitution, acting, when necessary, as a sort of neutral referee on certain matters between the political branches.[18] It is true that the President has the power of nomination and the Senate the power of confirmation, as a sort of democratic check on the judicial power. However, the fact that the Justices of the Supreme Court hold their offices “during good behaviour”,[19] which gives them security of tenure, is an effectual balance against political interference in their deliberations. As, Alexander Hamilton noted, for the Justices to have job and income permanency contributes greatly to an “independent spirit in the judges which must be essential to the faithful performance of so arduous a duty”.[20] Indeed, it is the arduousness of the duty itself which makes such measures expedient to ensure the retention of independent judicial judgment. While the political branches have a role in the Justices obtaining tenure, once it is obtained, they have almost no practical role in the Justices maintaining their tenure. Federal judicial impeachment, for example, is very rare. As such, the Justices of the Supreme Court are enabled to exercise free, impartial and independent judgment. This, therefore, is their role in the democratic system, to uphold the free system of American laws.[21]
Given its firm basis in the Constitution and unanimity of views among the various parties across time that the federal judiciary, and especially the Supreme Court, ought to be independent, this independence should be considered a foundational value of the American system of free government. It is not an accurate interpretation of the Constitution which might lead a Chief Magistrate on occasion to criticise the Justices of the Supreme Court for doing their duty by contradicting his actions, even if he were the one to nominate them.[22] Further, it would be an error of constitutional practice to make ad hominem criticisms of some the Justices.[23] Such conduct is based on a twofold error. The first appears to be a desire for policy-based “loyalty”.[24] The second seems to be related, a misconception of the proper relationship between the independent branches of the government.
It has been shown above, in so far as it is necessary in a short piece such as this, that the Constitution and the practice of constitutional government in the United States requires judicial independence as part of securing liberty. It is an obvious fact that the political and legal realms are interrelated, but that they are distinct and operate in different ways is an essential thing to be mindful of. Thus, James Madison drew the distinction between the exposition and the making of the laws.[25] It is for the political branches to make the broad and sweeping determinations of the common good, and it is for the judicial branch to ensure that the rules made by them are properly understood and implemented according to the sense in which they were legislated. On another note, it is for the officers of the judicial branch to stick faithfully to the firm meaning Constitution and the laws themselves, detached from the political concerns of their day, not heeding gratitude to political figures, for this is why they have life tenure: that they might exercise independent judgment. The very idea of independence of judgment between the separate branches of the government admits of the possibility of disagreement, but it is, “emphatically the duty of the Judicial Department to say what the law is” as Marbury v. Madison has it.[26]
How does all this relate to our immediate discussion? Whereas it is for the political branches to make common good determinations, it is not for the judicial branch to interfere there, even if the results might be politically expedient. As Chief Justice Roberts recently remarked: “it’s a new world. It’s the same Constitution”.[27] If the political branches genuinely dislike the result of existing laws or constitutional provisions, it is incumbent on them, as the primary custodians of the common good, to modify the laws or to initiate the process of constitutional amendment. Then it is that the Constitution will reflect the new world, in the way prescribed in Article V. If it is a matter of ordinary federal legislation, the onus is on Congress to make the legislative time available to modify the statutes. In neither instance is it a shortcoming in the judicial power which results in outcomes not conducive to the general welfare.
It is interesting here to consider aspects of a dictum Justice Amy Coney Barrett gave in the CASA, Inc. case.[28] The case was about universal injunctions with the majority holding that a district court could not make them, with Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissenting. Justice Jackson wrote her own dissent, and it is against this that Justice Barrett’s dictum was directed: “Justice Jackson decries an imperial Executive while embracing an imperial Judiciary”.[29] I decline to comment here on the reasoning in the case itself; my interest is in the use of the attributive adjective “imperial” to modify the nouns “Executive” and “Judiciary”. In the context immediately preceding the sentence, Justice Barrett expressed incredulity at the dissenter’s view which would allow the district courts to have the universal power to issue injunctions. Given this, clearly the use of “imperial” as a modifier is first intended to amplify and crown the dismissiveness of the paragraph, reinforcing that the majority do not wish to “dwell” on the dissent and deign to “observe only this”, that Justice Jackson’s argument favours an “imperial Judiciary”.[30]
Second, in the context, “imperial” conveys the sense of unlimited and uncontrolled. Justice Barrett and the majority here decline to directly address Justice Jackson’s concerns about an uncontrolled executive branch by gesturing to the Constitution, noting precedent contrary to the dissent, and by reversing the criticism of the dissent back on itself by saying that in seeking to restrain one branch of government it, without legal or constitutional basis, seeks to make uncontrolled another branch. It is obvious that when Justice Barrett uses the word “imperial” she is not explicitly invoking Roman constitutional law, and yet the word, by reason of its genealogy, at least evokes some sense of it. In its essence, imperial power conceived at its origin is an unlimited power; as the Roman jurist Ulpian says, “whatever pleases the prince to legislate has force”,[31] the prince being the so-called first citizen, the Emperor. Though Ulpian goes on to say that this force is lawful because the people hypothetically “conferred” that power to the Emperor through the lege regia,[32]it is evident that this was an uncontrolled power, which the Roman jurists could provide only a veneer of respectability to. For Justice Barrett to use the modifier “imperial” is to evoke a sense of all this negative cultural baggage associated with absolute power. I am not saying that she is directly tying herself to the Roman legal concept (that would be absurd), but that the use of the word itself thus evokes practically uncontrolled, unlimited power. Given that the executive possesses wide discretionary authority and directive authority, as Madison himself acknowledges,[33] it is strange that the judicial power here should be described as capable of imperial power. Perhaps a more charitable reading of the dictum would be that Justice Barrett intended by gesturing at the possibility of an unrestrained judiciary, to the unprincipled anarchy that would be unleased among the district courts if they were allowed to have a universal injunctive power. Nevertheless, since the power concerned is prohibitive it would tend towards paralysis in government rather than action, and it is action (albeit lawless and uncontrolled) which imperial power properly called such tended towards. At the least, it seems like a poor choice of words to use the modifier “imperial” before “Judiciary”.
I am, of course, concerned here with the notion of judicial independence in general, not the particulars of universal injunctions on which I here take no view. It appears to me that for the Framers of the Constitution, their principal concern was to avoid an imperial executive branch or an all-powerful legislative branch, made such by too close an institutional association of the Chief Executive and the legislature. This, at least, seems to be borne out by the consideration above of Madison’s speech. The judicial branch has the least power of all three, having only the power of exposition, relying on the compliance of the other branches, particularly the executive, to give its judgments effect. It is thus particularly reliant on its own image and prestige among the public at large to convey the sense of authority to its judgments. As Hamilton says, the judiciary “may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments”.[34] I noted above that as it is likely that, given historical experience at least a few times during the lifespan of a single citizen, the executive and legislative branches will be in the hands of a single party. In such a scenario, it is necessary for the judicial power to remain an impartial and independent arbiter of the laws to maintain justice, to prevent the factional interests of the dominant political party from, perhaps inadvertently, undermining the fabric of the Constitution, and to help retain the prestige and authority of the federal government as a lawful and thus republican government which impression in part helps maintain the long continuance of the republic. It is thus the wisdom of the Framers that they sought to establish a form of government which separates the portion sovereign power vested in the federal government among three branches and further provides for the independence of the constitutional actors, particularly, for our discussion, those in the judicial branch.
In establishing a form of republican government which also provides for the separation and independence of the powers, the Framers were consciously acting to prevent the aggregation of power in a single branch or, worse, a single pair of hands. They were, thus, in effect acting to prevent what occurred in the institutions of the Roman Republic, which ended when imperial power was established through the very forms of those old republican institutions. The risk, it seems, which Madison seems to hint at is the coordination of the three branches of government in a lawless manner because their institutional actors have insufficient motives of independence. It is not the coordination towards the constitutional and lawful ends which seems to be at issue, but rather the domination of a single person or faction which would undo the republic. Thus, the separation and the independence of the respective constitutional powers is required that each may perform their duty. The judiciary, being the weakest branch, is in especial need because of its very weakness to have the constitutional safeguards to its independence that it has. “Judicial independence is not conferred so judges can do as they please. Judicial independence is conferred so judges can do as they must”, to quote Justice Kennedy.[35]
It is perplexing that the same Justice who cautioned against an unlimited judicial power and who dismissed concerns of an unlimited executive power would be at the receiving end of veiled criticisms from the Chief Executive of being overzealous in a show of independence.[36] Nevertheless, it is a natural, though collateral, result of judicial review that it should have divergence of opinion as to the correctness of a result or the reasoning of a decision between the branches. “Judicial review makes tensions between the branches unavoidable”.[37] As the issues which come before the Supreme Court are of the highest importance, so the passions generated by the Court’s decisions are correspondingly intense. “And those expressions of public sentiment – whether criticism or praise – are not threats to judicial independence”, as the present Chief Justice has written.[38]
Nevertheless, as the Chief Justice has stated elsewhere,[39] whereas criticisms as to the reasoning of decisions can be “healthy”,[40] it is necessary for personal invective to cease because it is “dangerous”.[41] I suggest that this danger is twofold, first to personal safety, and second, to constitutional stability. The two are interrelated because, as I observed above, the institutions, while they outlive their officers, inhere in their officers and thus to level personal invective against an officer is to correspondingly undermine the efficacy of the institution itself. For the judicial branch, which is unique in that it has neither power over the purse nor the sword, its power lies in a very large measure on the prestige and confidence it enjoys among the public by which the force of public opinion is allied to the judicial power to amplify the risks of either of the political branches not complying with judgments. However, research from Gallup has shown that the Supreme Court now enjoys little confidence overall with 35% of the public expressing confidence in the judiciary overall.[42] What the members of the political branches says has an effect on this because people look to them to interpret events and situations, particularly if they are aligned with them on partisan grounds.[43] As such, the public perception of legitimacy of the judiciary can be undermined by intemperate comments made by members of the political branches, like Senators and Presidents. I am not concerned here with the wider question of public opinion on judicial conduct, which is a matter too wide for our present scope of inquiry into the separation of powers and, in particular, judicial independence.
I said above that the independence of the judiciary depends on them being able to maintain tenure with little to no political interference and thereby retaining their independent judgment. If, however, the prestige and perceived authority of the judicial branch is weakened, particularly by political actors, the prospect of impeachment of judicial officers for political reasons under feigned pretexts may become a realistic possibility in the future. If judicial officers are to fear for the security of their tenure because of their legal judgments, the independence of the judiciary will be critically undermined contrary to the intentions of the Framers. It is necessary, therefore, for political actors to reassert the need for the independence of the three branches and to cease personal invective. The Constitution is a marvellous and precious creation of the genius of the American spirit. Its structural fabric, as Madison perceived, depends on officers of the separate branches to be filled with a lively independence and a degree of mutual respect for the other institutions to work.
[1] U.S. Const. Art. II, §2, cl. 2
[2] President Donald J. Trump (April 1, 2026) quoted in in Peter Charalambous, Meghan Mistry, and Michelle Stoddart, ABC News (April 2, 2026) accessed April 16, 2026.
[3] President Barack Obama, ‘President Obama Nominates Elena Kagan to the Supreme Court’ (May 10, 2010, C-SPAN, 00:25-00:28) <https://www.c-span.org/clip/white-house-event/president-obama-nominates-elena-kagan-to-the-supreme-court/4546376> accessed April 16, 2026.
[4] President George W. Bush, ‘Supreme Court Nomination Announcement’ (July 19, 2005, C-SPAN, 00:56-00:59) <https://www.c-span.org/program/white-house-event/supreme-court-nomination-announcement/144600> accessed April 17, 2026
[5] President Joseph R. Biden, ‘President Biden Nominates Judge Ketanji Brown Jackson to Supreme Court’ (February 25, 2022, C-SPAN, 01:22-01:26) <https://www.c-span.org/program/white-house-event/president-biden-nominates-judge-ketanji-brown-jackson-to-supreme-court/608934> accessed April 17, 2026
[6] President Ronald Reagan, ‘Ronald Reagan nominates Antonin Scalia to Supreme Court in 1986’ (June 17, 1986, CBS News, 01:28-01:48) <https://www.youtube.com/watch?v=XHJUdN7chsA> accessed April 16, 2026
[7] Rachel A. Shelden, ‘“I Shall Not Forget or Entirely Forsake Politics on the Bench”: Abraham Lincoln, Dred Scott, and the Political Culture of the Judiciary in the 1850s’; cf. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)
[8] Paul Finckleman, ‘Scott v. Sandford: The Court’s Most Dreadful Case and How It Changed History’ 82 Chicago-Kent Law Review 3, 46
[9] President Ronald Reagan (n4)
[10] James Madison in Notes of Debates in the Federal Convention of 1787 Reported by James Madison, (Ohio University Press, 1966) 311
[11] ibid
[12] ibid
[13] ibid
[14] Ibid 311-312
[15] Ibid
[16] History, Art & Archives, U.S. House of Representatives, “Party Government Since 1857,” <https://history.house.gov/Institution/Presidents-Coinciding/Party-Government/> (April 17, 2026)
[17] James Madison (n8) 311
[18] See, for example, the case of United States House of Representatives v. Azar No. 14-cv-1967, 2018 WL 8576647 (D.D.C. May 18, 2018)
[19] U.S. Const. Art. III, §1 – the original transcription uses the spelling “Behaviour” and not the modern standard North American spelling of “behavior”.
[20] Alexander Hamilton, The Federalist No. 78 <https://avalon.law.yale.edu/18th_century/fed78.asp> accessed April 16, 2026
[21] I am deliberately evoking the language of the Declaration of Independence here, where it says “free System of English Laws” to imply the affinity between England and America in the liberties their respective systems share.
[22] President Donald J. Trump (n2). The comments of the Chief Executive here referred to are reproduced verbatim in the news article.
[23] See President Donald J. Trump quoted in Matt Loffman, PBS News (February 23, 2026) accessed April 16, 2026
[24] Ibid, see in particular the video footage of the President’s speech on the judgment in the tariffs case embedded in the article at 1:24-1:33, where he makes reference explicitly to party “loyalty”: <https://youtu.be/zprEJrknh04?si=Q9Cj7dccxoYM64Ln> accessed April 16, 2026
[25] James Madison (n8) 311
[26] Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) 177
[27] Chief Justice Roberts, Trump v. Barbara, No. 25-365 (Supreme Court, April 1, 2026) p. 34, lines 30-31 <https://www.supremecourt.gov/oral_arguments/argument_transcripts/2025/25-365_l6gn.pdf> accessed April 16, 2026
[28] Trump v. Casa, Inc. 606 U. S. ____ (2025)
[29] Ibid 23
[30] Ibid
[31] Iustitani Digesta 1.4.1: “Quod principi placuit legis habet vigorem: utpote cum lege regia, quae de imperio eius lata est, populus ei et in eum omne suum imperium et potestatem conferat” (Ulpianus). For an online version, see <https://www.thelatinlibrary.com/justinian/digest1.shtml> accessed April 17, 2026
[32] ibid
[33] James Madison (n8) 311-312
[34] Alexander Hamilton, The Federalist Papers: No. 78 <https://avalon.law.yale.edu/18th_century/fed78.asp> accessed April 17, 2026
[35] A. M. Kennedy, Testimony in Senate Judiciary Committee Hearing on Judicial Independence, 2007 quoted in Chief Justice John Roberts, 2024 Year End Report on the Federal Judiciary, 4 <https://www.supremecourt.gov/publicinfo/year-end/2024year-endreport.pdf> accessed April 17, 2026
[36] President Donald J. Trump (n2).
[37] Chief Justice John Roberts (n35) 4
[38] ibid
[39] cf. The American Law Institute (March 18, 2026) accessed April 17, 2026
[40] Ibid, see the embedded video from Baker Institute, ‘A Conversation with John G. Roberts, Jr., Chief Justice of the United States’ (23:55-23:56) <https://www.youtube.com/live/j8vUUl_vcKc?si=e7E7iCLkRDX5wqtU> accessed April 17, 2026
[41] Ibid (24:10-24:55).
[42] Rachel Houston, LSE United States Politics and Policy blog (April 10, 2025) accessed April 17, 2025
[43] ibid
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