Discretion v. Independence: Distinguishing Two Forms of Autonomy in Models of Judicial Behavior

Abstract

Existing scholarship offers competing accounts of judicial independence, alternatively seeing it as a by-product of the number of veto players in a political system, its electoral competitiveness, or its use of common law. This paper tests directly these three prominent models of judicial independence against one another in both a cross-national context and across the American states. Results suggest that the veto players approach better accounts for the discretionary power judges possess in a cross-national context, while the interest group model explains when judges will operate independently of other political actors, particularly in the American states. I demonstrate how scholars can better explore the liberty afforded judges by separating the concepts of judicial discretion and judicial independence.