Our courts are increasingly under political siege. Defenders of judicial independence should be heeded.
In The Federalist, No. 78, Alexander Hamilton insisted that "[t]he complete independence of the courts of justice is peculiarly essential in a limited Constitution." The courts were "the bulwarks … against legislative encroachments." Hamilton understood judicial independence as a function of the judiciary’s relative impotence as an institution: "from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its coordinate branches." Hamilton endorsed Montesquieu’s observation that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."
Political criticism of our courts is precisely the danger of which Hamilton warned. The judiciary’s only safeguard from institutional encroachment, much less irrelevance, is refusing to pay homage to political motives and asserting its independence from both the executive and legislative branches. As Hamilton suggested, "liberty can have nothing to fear from the judiciary alone."