The Executive Branch and the Origins of Judicial Independence

by Kevin Arlyck

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The early history of the federal judiciary as an independent branch of American government presents a puzzle. How did an institution that barely existed as a separate entity before the American Revolution become coequal, and in some ways preeminent? Most accounts of the judiciary’s rise tell a story in which the courts consolidated their authority—especially the power of judicial review—by tacitly agreeing to withdraw from partisan politics. This article considers early judicial independence through a different lens—the idea that the executive and legislative branches cannot interfere with judicial proceedings. This notion, which seems self-evident to us now, was less clear at the Founding. State legislatures in the 1780s routinely overrode judicial decisions, and it was not until the 1820s that courts seriously began to question the practice. As this article shows, the most insistent assertions of judicial inviolability came not from courts, but instead from the executive branch officials—in large part because they had little other choice. With a threadbare bureaucracy and no meaningful army, the early federal government existed more in theory than in fact. What it had was courts, which sat in every major port city and enjoyed broad jurisdiction over maritime matters. Forcing foreign disputants to adjudicate their claims in court spared the executive from making decisions that risked angering powerful European empires, and enabled it to leverage judicial resources to solve problems it could not manage on its own. In so doing, executive officers helped transform a still undefined concept of judicial independence into a putatively hard barrier between the branches.