By Anna Harvey
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Extra info for A Mere Machine: The Supreme Court, Congress, and American Democracy
Development economists studying judicial independence have suggested that independent judges may simply be relatively more protected from the pressures inducing legislators and executives to predate economic and political rights. Legislators and executives with uncertain tenures face incentives to give preferential treatment to their supporters, and to silence their opponents; these survival-directed incentives may induce them to expropriate private property and/or suppress dissent. 75 Importantly, this argument does not assume that judges sincerely prefer more robust rights protections than do legislators and executives.
The question of the independence of the federal courts would be settled. For any or all of these reasons, we could conclude that federal judges in the United States are free to decide cases independently of elected branch preferences. The point of this chapter is simply to suggest that we shouldn’t call it a day quite yet. While there is some suggestive evidence supporting each 35 36 SUPREME COURT, ELECTED BRANCHES, AND THE CONSTITUTION of these claims, this evidence is far from conclusive. While the Constitution’s text does provide federal judges with some protections from the elected branches, for example, it also appears to leave considerable room for elected branch majorities to punish divergence from and reward deference to elected branch preferences.
Moreover, the structure of the Constitution’s provisions regulating the federal courts may make it far easier for the elected branches to induce judicial deference than is commonly believed. There may be more periods of divergence between elected branch and judicial preferences than we have previously suspected. And the most frequently cited evidence in support of the claim that elected ofﬁcials do not seek judicial deference, namely that the elected branches rarely attempt to check the federal courts, is consistent with multiple interpretations.