Our Judiciary
- Feb 21
- 4 min read
Updated: 2 days ago
The Judiciary Under Scrutiny
Judicial independence is crucial. Long appointments and the absence of judicial elections are essential to insulating these methodical roles from the rapid twists and turns of politics. Yet this insulation demands that we be even more selective about who occupies the halls of justice than in any other branch of government, because the judiciary lacks traditional enforcement mechanisms and depends instead on public acceptance of its authority.
Partisan nomination has led us down a path of judicial polarization, and as this political maneuvering has intensified, the reputation of the courts has begun to tarnish in a uniquely damaging way. In the judiciary, reputation is everything. As described in Judicial Reputation: A Comparative Theory by Nuno Garoupa and Tom Ginsburg, judges possess neither the power of the purse nor the sword; instead, courts derive their authority from accumulated institutional credibility and the belief that judges act in good faith. When judges are perceived primarily as political actors, that credibility erodes. As public faith declines, so too does the judiciary’s practical authority to resolve disputes and maintain social order. The Supreme Court’s 42% approval rating stands as a stark indictment of this loss of legitimacy. 1
Forum shopping exemplifies this reputational problem in practice. Plaintiffs, defendants, and prosecutors alike seek out courts they believe will treat their claims most favorably, behavior that only makes sense in a system where outcomes vary predictably by jurisdiction or judicial ideology. Without vast disparities in jurisprudence, such tactics would be pointless. Their prevalence therefore signals not merely strategic lawyering, but a judiciary fractured enough to invite manipulation rather than command uniform respect for the rule of law. 2
Ready to take the next step? Be the change this country needs. Join our volunteer team and become a vital asset to our mission.
Excessive insulation also creates an environment that can shield judges who age ungracefully or venture beyond the bounds of their institutional role, no longer serving the public good. Because impeachment is an impractical and rarely used mechanism for accountability, society has little meaningful recourse to address judicial incapacity or misconduct short of extraordinary circumstances. Historically, only eight federal judges have been removed through impeachment since 1789, illustrating how life tenure, while protective of independence, can also entrench dysfunction when reputational constraints fail. 3
As judicial prestige drains away, the once-hallowed doctrine of stare decisis is increasingly undermined. Sitting Supreme Court justices now suggest they need not be bound by precedent, even though adherence to prior decisions underpins legal regularity and the predictability upon which a functioning civilization depends. When precedent is treated as optional rather than foundational, the judiciary’s claim to neutrality weakens further, reinforcing public perceptions of ideological decision-making. 4
Yet this erosion also exposes a deeper structural tension: when courts layer precedent upon precedent in the absence of legislative clarification, they can generate doctrinal paradoxes that courts themselves are ill-equipped to resolve. In such moments, legislative intervention is not a threat to judicial independence but a necessary complement to it. Instead, deep structural problems are repeatedly kicked down the road by an apathetic legislature unwilling to exercise its constitutional role, leaving courts to shoulder responsibilities that properly belong elsewhere. 5
The judiciary’s turtle-like pace can be mind-numbing at times, though it exists for good reason. The process is intended to be deliberative and thorough, ensuring fairness and accuracy. However, that same slowness can be weaponized. Legal strategies increasingly exploit procedural complexity through dilatory tactics designed to exhaust the financial and emotional resources of opposing parties. When combined with legal formalism that obscures underlying value judgments behind technical reasoning, these practices deepen public skepticism, reinforcing the perception that judicial outcomes reflect power and strategy rather than impartial justice. 6
References:
Gallup. (Sept 2-16, 2025) Do you approve or disapprove of the way the Supreme Court is handling its job? Available From: https://news.gallup.com/poll/4732/supreme-court.aspx [Accessed February 20, 2026]
Wex @ Legal Information Institute (Dec, 2022) forum shopping. Available From: https://www.law.cornell.edu/wex/forum_shopping [Accessed February 20, 2026]
ProPublica. (January 18, 2011) Life Tenure for Federal Judges Raises Issues of Senility, Dementia. Available From: https://www.propublica.org/article/life-tenure-for-federal-judges-raises-issues-of-senility-dementia [Accessed February 20, 2026]
Ryan Adamczeski (Sep 29, 2025) Clarence Thomas says past SCOTUS rulings, like marriage equality, aren't 'the gospel' and can be overturned. Available From: https://www.advocate.com/politics/clarence-thomas-precedent-marriage-equality [Accessed February 20, 2026]
Harv. L. Rev. (Jan, 2025) The Paradox of Precedent About Precedent. Available From: https://harvardlawreview.org/print/vol-138/the-paradox-of-precedent-about-precedent/ [Accessed February 20, 2026]
Eric Segall (July 07, 2025) Posner, Chemerinsky, and the Perils of Dishonest and Dangerous Formalism. Available From: https://www.dorfonlaw.org/2025/07/posner-chemerinsky-and-perils-of.html [Accessed February 20, 2026]
You are receiving this email because you are subscribed to the 1776 Newsletter. Your privacy is important to us. The 1776 Inc. does not sell, trade, or share subscriber lists with third parties. The information you provide is used solely to deliver updates and news regarding our mission. The information provided in this newsletter is for general informational purposes only. While we strive to provide accurate and up-to-date content, The 1776 Inc. makes no representations or warranties of any kind regarding the completeness or accuracy of the information herein. Any reliance you place on such information is strictly at your own risk. This newsletter may contain links to external websites that are not provided or maintained by The 1776 Inc. Please note that we do not guarantee the accuracy or relevance of any information on these external sites.
Copyright © 2026 1776 Inc.
All rights reserved.
Comments