Copyright (c) 1993 Southern California Law Review
University of Southern California
A REPORT ON THE INDEPENDENCE OF THE JUDICIARY
Southern California Law Review
66 S. Cal. L. Rev. 2209
J. Clark Kelso *
An independent judiciary is as important today as it was two hundred years ago at the inception of our nation. "The complete independence of the courts of justice is peculiarly essential in a limited Constitution" 1 is an assertion that probably still commands general assent, certainly among judges and lawyers. But what does the statement really mean? The judiciary cannot be a self-sustaining entity; it depends critically upon the support of the other branches of government and upon the trust of the people for its sustenance. Thus judicial independence cannot mean judicial isolation. So in what way and for what purposes should the judiciary be independent?
The necessary scope of the judiciary's independence can be determined by considering its core functions. Understanding the judiciary's essential role in government and society fosters an understanding of the precise ways in which the judiciary must remain independent.
The judicial branch of the State of California performs certain critical sovereign functions. It has exclusive responsibility for hearing and resolving criminal trials, a key component of the criminal justice system. It resolves civil actions brought by state government entities against private persons. It protects civil liberties from governmental encroachment by resolving suits brought by private persons against government. It resolves large numbers of purely private, civil disputes. Finally, by virtue of its power of judicial review of legislative enactments and executive actions, the judiciary is the final word in interpreting the California Constitution. 2
In performing these functions, the judiciary comes ...
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