John A. Ferejohn


Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint

John A. Ferejohn, Larry D. Kramer

Many commentators believe that judicial independence and democratic accountability stand in irreconcilable tension with each other. Professors Ferejohn and Kramer suggest that these competing ideals are not themselves goals, but rather are means to a more important end: a well-functioning system of adjudication. Either or both may be sacrificed in the pursuit of this overarching objective. The United States Constitution seeks to achieve this objective by giving individual judges enormous independence while placing them within an institution that is highly susceptible to political control. The resulting vulnerability creates a dynamic that makes federal courts, and especially the Supreme Court, into effective self-regulators. The Authors argue that, seen in this light, the system of institutional self-restraint encompasses a broader range of judicial doctrines than has been understood previously. The Article concludes that reconciling the judiciary’s twin goals of democratic legitimacy and legal legitimacy requires a more balanced view, for maintaining the judicial branch’s independence lies as much or more in the judge’s own hands as in external political pressures.