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5 Const. Pol. Econ. 1 (1994)

handle is hein.journals/constpe5 and id is 1 raw text is: CONSTITUTIONAL POLITICAL ECONOMY, VOL. 5, NO. 1, 1994 REASSESSING THE ROLE OF THE INDEPENDENT JUDICIARY IN ENFORCING INTEREST-GROUP BARGAINS Donald J. Boudreaux and A.C. Pritchard* William Landes and Richard Posner contend that judicial independence maximizes the value of legislative deals with interest groups by enhancing the durability of those deals. Despite its acceptance among economics-minded scholars, we argue that this theory is seriously deficient. The 'strong' positive version of this theory fails as an attempt to explain the origin and maintenance ofjudicial independence because it ignores collective- action problems plaguing both the legislature and the judiciary in fostering judicial inde- pendence. The 'weak' descriptive version inadequately describes the full historical record. We re-interpret some empirical findings-previously thought to support the Landes-Posner theory-in light of our analysis. We conclude that the United States federal judiciary is truly independent of Congress and the President, and that this indepen- dence was designed by the Constitution's framers as a means of furthering sound govern- ment. JEL classification: K40. Introduction Judicial independence is a critical feature of the United States Constitu- tion. The Constitution provides for selection of federal judges by the President, subject to the concurrence of the Senate, with provision for life tenure and no reduction of salary during that tenure. (U.S. Constitution, art. II, sec. 2; art. III, sec. 1.) Traditionally, constitutional theorists have emphasized that life tenure and salary protections bar political control of the federal judiciary, thereby making the judiciary a genuine third and co-equal branch of the national government. In this scheme, the independent federal judiciary serves the long-term public *Associate Professor of Legal Studies, Clemson University, and Attorney, Office of the Solicitor General, U.S. Department of Justice. We thank Lynn Baker, Lillian BeVier, Karol Ceplo, Mike DeBow, Jack High, Randy Holcombe, Saul Levmore, Roger Meiners, Erin O'Hara, Richard Posner, Bob Scott, Bill Shughart, Dick Wagner, J. Harvie Wilkinson, Bruce Yandle, Leland Yeager, and two anonymous referees for helpful comments on earlier drafts. The Institute for Humane Studies and the Olin Foundation provided much appreciated financial assistance. We alone are responsible for all remaining flaws. The views expressed here do not necessarily reflect those of the U.S. Department of Justice. 1

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