Volume 168

Did the longest government shutdown in United States history this past winter constitute a severe threat to a functioning and independent federal judiciary? In short, yes. From the vantage point of a district court’s chambers, we experienced firsthand the uncertainty that almost weakened the federal judiciary when Congress and the President were at odds over the budget, threatening the judicial branch of the government with shrinkage or closure. This Essay asserts a viable legal theory—we call it a “theory of necessity”—to prevent any constitutional crisis caused by a future government shutdown. This theory invokes four building blocks of well‐established legal doctrines that, when connected, pave a path to secure the judicial branch’s autonomy. The theory of necessity requires the legislative and executive branches to recognize their constitutional obligations to fund the judicial branch, without interruption.

The University of Pennsylvania Law Review Online presents the first installment of “Independent and Accountable Courts in Perilous Times: Perspectives from the Academy, the Bench, and the Bar,” a series of articles, essays, and commentaries addressing the current state and direction of the judiciary. Contributors include scholars, judges, and practitioners whose extensive experience and diverse perspectives illuminate the relationship between judicial independence and accountability, as well as the forces which shape that relationship. Contributions to the series will be published throughout the summer and fall. The series begins with Professor Stephen B. Burbank's “Reconsidering Judicial Independence: Forty Years in the Trenches and in the Tower.” From his experiences as a Supreme Court clerk during Watergate, as a reporter on the judicial committee implementing the Judicial Conduct and Disability Act, and finally as a law professor deeply engaged in the study of judicial power, Professor Burbank suggests several lessons on how judicial accountability is essential to maintaining an independent judiciary.

Trusting in the integrity of our institutions when they are not under stress, we focus attention on them when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this Essay, I aim to provide practical context for some of the important lessons to be learned from the periods of stress for the federal judiciary that I have observed as a lawyer and concerned citizen and to provide theoretical context for lessons I have deemed significant as a scholar.

The University of Pennsylvania Law Review Online presents the second installment of “Independent and Accountable Courts in Perilous Times: Perspectives from the Academy, the Bench, and the Bar.” The series continues with Professor Charles Geyh’s response, “Considering Reconsidering Judicial Independence.” Professor Geyh draws on Professor Burbank’s idea that judicial independence and judicial accountability are merely “two sides of the same coin” and goes further, positing that the two‐sided coin and its expected cyclical return to equilibrium is a “Hallmark after‐school special” version of the reality, and that curbing the erosion of the public perception of the judiciary will take more than reliance on that cycle perpetuating.

Primarily, Professor Geyh shows that in order to slow and stop the downward spiral, we must wean ourselves off the “antiquated” approach to judicial independence and accountability—the rule‐of‐law paradigm—by turning toward of a more robust “legal culture” paradigm which takes into account the fact that, indeed, judges’ decisions are necessarily subject to extra‐legal influences.