Judicial Independence and the American Constitution

The Framers of the American Constitution took special pains to ensure that the governing principles of the republic were insulated from the reach of simple majorities. Only super-majoritarian amendments could modify these fundamental constitutional dictates. The Framers established a judicial branch shielded from direct majoritarian political accountability to protect and enforce these constitutional limits. Paradoxically, only a counter-majoritarian judicial branch could ensure the continued vitality of our representational form of government.This important lesson of the paradox of American democracy has been challenged and often ignored by office holders and legal scholars. Judicial Independence and the American Constitution provocatively defends the centrality of these special protections of judicial independence. Martin H. Redish explains how the nation's system of counter-majoritarian constitutionalism cannot survive absent the vesting of final powers of constitutional interpretation and enforcement in the one branch of government expressly protected by the Constitution from direct political accountability: the judicial branch. He uncovers how the current framework of American constitutional law has been unwisely allowed to threaten or undermine these core precepts of judicial independence.

"Unyielding and provocative, Judicial Independence and the American Constitution is a special kind of book. Redish's rigid approach to constitutional analysis challenges accepted wisdom and forces the mainstream to reconsider its assumptions. Ignore Redish at your peril. This well-written and surprisingly accessible book is sure to be oft-cited for decades.", "This book cements Martin Redish's standing as the foremost scholar and theorist of American judicial independence. The book defines the requirements of judicial independence in light of a broader theory of American constitutionalism and its commitment to 'countermajoritarian' individual rights. It offers a tour de force of learning, close argumentation, legal imagination, and—as one has learned to expect from Redish—occasional provocation to rethink conventional wisdom."

Martin H. Redish is the Louis and Harriet Ancel Professor of Law and Public Policy at the Northwestern University Pritzker School of Law. He is the author of The Adversary First Amendment (2013), Wholesale Justice (2009) and The Logic of Persecution (2005), all with Stanford University Press.