Reassessing the Role of the Independent Judiciary in Enforcing Interest-Group Bargains
Abstract
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 of judicial independence because it ignores collective-action problems plaguing both the legislature and the judiciary in fostering judicial independence. 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 independence was designed by the Constitution's framers as a means of furthering sound government.