Separation of Powers Under The United States Constitution - Judicial Independence

Judicial Independence

Separation of powers has again become a current issue of some controversy concerning debates about judicial independence and political efforts to increase the accountability of judges for the quality of their work, avoiding conflicts of interest, and charges that some judges allegedly disregard procedural rules, statutes, and higher court precedents.

It is said on one side of this debate that separation of powers means that powers are shared among different branches; no one branch may act unilaterally on issues (other than perhaps minor questions), but must obtain some form of agreement across branches. That is, it is argued that "checks and balances" apply to the Judicial branch as well as to the other branches.

It is said on the other side of this debate that separation of powers means that the Judiciary is independent and untouchable within the Judiciaries' sphere. In this view, separation of powers means that the Judiciary alone holds all powers relative to the Judicial function, and that the Legislative and Executive branches may not interfere in any aspect of the Judicial branch.

An example of the first view is the regulation of attorneys and judges, and the establishment of rules for the conduct of the courts, by the Congress and in the states the legislatures. Although in practice these matters are delegated to the Supreme Court, the Congress holds these powers and delegates them to the Supreme Court only for convenience in light of the Supreme Court's expertise, but can withdraw that delegation at any time.

An example of the second view at the State level is found in the view of the Florida Supreme Court, that only the Florida Supreme Court may license and regulate attorneys appearing before the courts of Florida, and only the Florida Supreme Court may set rules for procedures in the Florida courts. The State of New Hampshire also follows this system.