This paper comparatively analyzes the US judicial branch and investigates how to improve the the quality of judiciaries in general.

1. Judicial Legitimacy
Creating a constitution is an imposing task. There are many components to consider, and even
then, a constitution cannot fully account for the stability of a nation. The constitution can only set the
fundamental groundwork. That is why in some countries, like the US, components may exist completely
outside the mainstream understanding of what works today. Nonetheless, it is worth attempting to
improve these elements as they are fundamental to the existence of the state. The US judicial branch is
one of these components. As Jacobs indicates, “many students remain unaware that the American legal
system is an exception to what prevails in most of the rest of the world” (vii). Although the US
constitution has stood the test of time, its ideals with regards to the judiciary are in no way a model for the
modern world. This paper will comparatively analyze the US judicial system with various nations such as
Russia, Germany, and South Africa to create a normative design of the American judicial branch. This
normative model will address the inherit flaws that exist within the American judicial branch, which make
a constitutional nation less sustainable. In order to address these issues, one must first understand why the
judicial branch exists; then how it can best fulfill these ends; and lastly what cultural, structural, and
appointment mechanisms in a normative US model would look like.
A Brief Introduction to the US Model
Th4e American Paradox
The American model is paradoxical in many ways; although its conception made it seem as
though it was the weakest of the three branches, time has proven it to be a major part of the American
polity. The constitution itself, the establishment of judicial review, and the Federalist Papers led to this
initial perception of weakness. In the US constitution, articles I, II, and III outline the three branches.
The legislative and executive branch are the topic of the first two articles; both have more sections, clearly
enumerated powers/responsibilities, and specific outlines of who can occupy the position(s). The judiciary
!1

2. on the other hand is the last of the three articles, has the least sections, is written vaguely, and does not
even outline who is able to be a justice. It seems that the judicial was simply thrown on as an afterthought.
Even the concept of judicial review, an underpinning of how we understand courts today, was established
by the court itself (not the constitution). This further highlights the vagueness and weakness of the judicial
branch as written in the constitution. Moreover, in the famous Federalist 78 , Hamilton outlined that the
court is the weakest of the three branches, because it does not have the power of “the sword or the
purse” (“Federalist no. 78”). How then does this court’s decision have “power” in the checks and balances
system? Through legitimacy. Legitimacy will be defined more extensively later in the paper — however, it
is achieved both from the branch’s conception and its behavior as an actor in the constitutional system.
Common Law Conundrum
As one looks to the US model, it is hard to avoid the elephant in the room: the comparatively rare
common law system. Although an entirely different paper could be written on the various merits of the
common law and Kelsenian system in structuring of the courts, both methods are sustainable. Regardless
of these disputes, even if the US changed to a civil law system, the institutional and structural costs would
outweigh the net benefits from the new system. Therefore, this paper will assume efficacy of the common
law system. Furthermore, another detail to consider is the simple principle that constitutional courts,
judges, and decisions occupy a ‘constitutional space’ that is neither ‘judicial’ nor ‘political’ (Sweet,
“Constitutional Courts and Parliamentary Democracy” 80; “Constitutional Courts” 818). This framing of
a somewhat ambiguous nature of a judicial branch will be an important theme to note throughout this
paper and will be, in part, justification for use of the common law system. For these reasons, this paper
will aim to solve the problems of the judicial branch in the lens of US common law system. If these issues
are going to be addressed, let us start by simply understanding why courts exist.
!2

3. Why Do Courts Exist?
At their very core, courts exist to interpret the law and issue judgements. Since WWII, in judicial
models around the world, courts interpret the law by checking it against the constitution — the document
which underpins all legal texts. It is through this interpretation of the law that they can then check the
powers of the other two branches. This is because of the way balance of powers is conceptualized with
the constitution. Because the polity “agreed” on the constitution, they created two agents: the executive
and legislative, both with positive lawmaking capabilities of whom “the people” are the principals. The
courts in a way keep those agents honest to the principles of their creation enumerated in the constitution
— behaving as a trustee. Their nature as overseers of the system leads to a simultaneous responsibility for
protecting citizen’s rights. There are two flawed assumptions to note with this traditional model. First,
because the courts adjudicate based off the constitution, their decisions are assumed to be bound by the
breadth of the constitution. Second, courts are assumed to have the final say in preventing the abuse of
power by keeping the branches of government horizontally accountable and hence protecting the citizens’
rights. These assumptions and their errors will help us understand what makes a court fall short of issuing
a good judgement so we can work to ameliorate it.
Constitutional Limitations & Judgement
Let’s look at the first piece: the idea that judges are bound by the text of the constitution. Because
a court’s decision relies on well reasoned arguments, polities desire that a court references some sort of
legal base for their decisions — the constitution. However, because constitutional drafting has high costs
of agreement for a final, enumerated decision, the final document tends to be too ambiguous and
inadequate to handle all constitutional disputes. Sweet observes how “difficulties associated with
negotiating rules for all possible contingencies, and given that, as time passes, conditions will change and
the interests of the parties to the agreement will evolve, all contracts [constitutions] are incomplete in
some significant way” (“Constitutional Courts and Parliamentary Democracy” 86). Because judges are
!3

4. reliant on an incomplete document for the basis of their decisions, they must to some extent rely on their
judgement and interpretation of law or fall victim to the inherit limitations of a constitutional text. This
judgement leads to a gray-area where cases are no longer strictly law-based. There is now another salient
variable to consider: “constitutional courts are understood as institutions whose function is fundamentally
political” (Hilbink 230). In order to best handle this variable, courts must build legitimacy by being
independent, professional, and impartial. These variables will be defined in the “How Can Judiciary
Legitimacy Be Enhanced” section ahead. However, the underlying understanding is that even though
judges’ decisions can no longer be grounded in strictly legal terms, by bolstering the legitimacy of the
court the decision can still be considered credible.
Now Let the Court Enforce It
Another issue with the currently pervading understanding of the judiciary is the errant
assumption that a court’s decision is binding. This assumption is incorrect because the courts generally
have no way of enforcing their decision. Hamilton indicated that “the judiciary, […] has no influence over
either the sword or the purse; no direction either of the strength or of the wealth of the society; and can
take no active resolution whatever. “It may truly be said to have neither force nor will, but merely
judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its
judgments” (Hamilton). In fact, in the current model, if congress wanted to, they could overturn the
decisions of the court by amenfding the rigid constitution. This may not be very evident because in many
nations, and especially western nations, courts’ opinions seem binding. This is because the judiciary is
viewed as a legitimate institution across the polity. As stated before, courts can be designed to build
legitimacy by being independent, professional, and impartial; moreover, their behavior as an actor can
also serve to enhance their legitimacy. As is the case for the US judiciary. Another reason, specific to the
US, for perceived bindingness of the decision is that “rigidity of the constitution enhances judicial
supremacy” (Hilbink 234).
!4

5. Conclusion
This overview determined that a court exists in order to issue judgements. These judgements
prevent the abuse of power from other branches of government, as well as simultaneously protecting the
rights of the citizen. The more likely the parties involved in a decision are to follow along, the “better” the
decision. Following this, two issues arose damaging the quality of a decision — what makes these
judgements valuable, and how can the court’s decisions be enforced? Because these two issues are
interrelated, so is their solution. By building legitimacy in its institution, the court can issue “legitimate
judgements” that secure compliance and respect from the parties involved.
How Can Judiciary Legitimacy Be Enhanced?
The court’s main end is to issue legitimate judgements, which will secure compliance and respect
from the parties involved. How this end of a legitimate judgement can be persevered is through ensuring
the court is a legitimate institution. A legitimate court will lead to all actors in the polity accepting these
legitimate judgements, regardless of how much they disagree. A less legitimate court can lead to situations
like Andrew Jackson saying “John Marshall has made his decision, now let him enforce it,” the Russian
Constitutional Court getting initially dissolved, or simply a decision getting ignored. Legitimacy for the
court exists across a spectrum — upon which I would argue it is difficult to predetermine a point where a
court starts to be considered “legitimate.” Therefore, this section will look at how legitimacy is assessed and
maximized. The courts, and in turn their decisions, gain legitimacy in two ways. First, through the
conception and design of a society’s institutions; and second, through its behavior as an institutional actor.
Institutional Design
Smilov provides a good model to start understanding legitimacy, arguing that “in contemporary
constitutional regimes, courts and the judiciary draw their legitimacy and their normative power from at
least four different sources” (862). These “four sources, [he argues], form a universally valid (for
!5

6. constitutional regimes) set of values, which models—institutionally very different from each other—try to
optimize, although they may balance the basic values in different ways. Societies have specific—sometimes
unique—histories and experiences, which explain the stronger emphasis on one value or another” (Smilov
862). To better understand what Smilov is saying, know that he holds a very loose “interpretive” point of
view which rejects the premise of “pluralists” who claim “there is no overall best solution” (862). He
loosely believes “all legal systems follow basically the same (or very similar) sets of normative principles or
values” (862). So, his loose interpretive model creates four fundamental and interrelated variables which
can vary in importance across polities: “separation of powers; the rule of law; adjudication as a mark of
sovereignty; and the need for independent arbiters in disputes between two parties” (862). In order to
maximizes these variables, we must first seek to understand them.
Let us begin by looking at the separation of powers. Smilov argues that “it prevents the
concentration of powers in the hands of one holder, and ensures a minimum degree of pluralism at the
highest level of government” (864). The primary ancillary for ensuring separation of powers is judicial
independence, which “guarantees that there is at least one other branch of power, different from the other
(political) holders of power” that “check[s] the political branches of power through some sort of judicial
review” (Smilov 864). Not only do judicial independence and review enhance the separation of powers,
but through a quantitative analysis, La Porta demonstrates that these principles succeed in achieving both
political and economic freedom across the polity through their guarantees of various rights (La Porta 1-3).
Because judicial review depends on judicial independence, let us take a closer look at judicial
independence. As Macdonald and Kong outline, “because empirical evidence demonstrates that judges do
not make decisions based exclusively on existing formal legal considerations, the notion of judicial
independence is a myth” (Macdonald and Kong 837). In a way, absolute judicial independence is not
possible. However, Macdonald and Kong make sure to note that “one can accept the empirical claim and
still have productive discussions about judicial independence” (837). Even though judicial independence is
!6

7. ultimately unattainable, society can decrease external influences in many ways, enhancing independence
and thereby judicial review and separation of powers. The three mechanisms which improve legitimacy
through independence by decreasing external influence are appointment procedures that decrease bias
towards any party/group, an age limit introduced to judicial tenure, and incentives to improve culture.
The second variable for enhancing legitimacy is the rule of law. The rule of law is an important
value to uphold in a society because it is “important to guarantee law-governed and rule-bound behavior
in society” (Smilov 866). Because judges are “professional experts on rules and following the law,” they are
the ultimate gate keepers of stability in a rule of law system (Smilov 866). The assumption made in
Smilov’s argument is that judges are regarded as professionals. Therefore the appearance of
professionalism is the route to maximize legitimacy through rule of law. This appearance can be cultivated
in two ways: the independence of judges and the right to judicial review..
The first component, independence, is so fundamental that Epstein et. al argues “without judicial
independence, there is no rule of law, and without rule of law the conditions are not in place for the
efficient operation of an open economy” (Epstein et al. 119). Judicial independence is significant because,
as seen in the last paragraph, it also guarantees separation of powers and gives way to judicial review —
the second component of professionalism. Macdonold and Kong’s analysis highlights this interconnection
between judicial independence and review, also showing their contribution to the rule of law. They argue
that a “judge makes appropriate use of her independence when she properly fulfills her role as a judge
[…] One might say that judges most fully occupy their institutional role when they engage in principled
reasoning” (Macdonald and Kong 837). When thinking about review, remember that courts occupy a
unique ‘constitutional space,’ which means “those governed must accept that constitutional meaning is (at
least partly) constructed through judge’s interoperation and rule making” (Sweet 825). Because decision
making power lies with these individuals and their judgments, the legitimacy of their decision must be
!7

8. enhanced. This can be done by modifying appointment procedures to get judges whose decisions we
respect, adjusting structure to improve professionalism, and lastly incentivizing cultural improvements.
Now let us turn to another piece of legitimacy: the need for impartial arbiters in disputes between
two parties. There is no way to absolutely measure or prevent bias; in a way a court can only work to
improve the degree to which it is considered impartial. A court that is impartial will generate trust and
thereby compliance. This legitimacy claim is the closest to the understanding of why courts exists — to
issue respected and complied judgements. Smilov acknowledges the court fulfills this end as he indicates
“courts generate trust when they become instrumental to broad sections of society in series of concrete
disputes between two parties,” or in other words is impartial (Smilov 870). He says impartiality has three
grounds of legitimation. First, “attempt to limit the exposure of the judiciary to partisanship and open
politicization in order to make it attractive as a neutral arbiter,” or in other words, make the judicial
branch independent. Second, because courts are “handicapped as endorsers of comprehensive political
programs and doctrines,” they must rely on the rule of law. Third, courts must “correctly balance the
competing values of accessible justice and manageable caseload,” both of which enhance legitimacy in
different respects (870). Because impartiality is so reliant on the other two principles, improving their
instruments of legitimacy through appointment, structure, and culture will improve this one as well.
Moreover, balancing accessibility and caseload is a structural issue that can be addressed through an
analysis of review procedures, and a change in appointment with regards to diversity as well.
Lastly, we explore adjudication as a mark of sovereignty. Sovereignty is an odd concept because
“historically, the claim of resolution of disputes through adjudication has been the mark of
sovereignty” (Smilov 869). On this simple understanding, “courts normally claim exclusive and final
authority over the resolution of legal disputes” (Smilov 869). This principle is a circular argument that
essentially says the court is sovereign because it is sovereign — it also stands separate from the
interconnection between all the previous concepts. Furthermore, this principle is very weak because its
!8

9. only possible argument for existence is historical context — which the same author warns about when he
claims that history makes a standard normative design difficult. Lastly, Smilov’s length of this section in
comparison to its counterparts showed the lack of care and justification that was put into this principle.
Earlier this paper it was determined that sovereignty actually does not even exist insofar that a court’s
decision can be ignored and not implemented, or that legislature can pass an amendment nullifying the
decision of a judiciary. So for this last principle, we will instead seek to understand what the court’s place
in the balance of powers should be. Should it be reliant on this old model of assumed supremacy? Or
should we look to a more modern system, one that creates an open dialogue of constitutionalism between
the judiciary and the legislature? Rather than see adjudication as a mark of sovereignty, we can see it as an
important, and in many ways, essential members of a cooperative discussion of constitutional issues. This
claim is legitimized through structural changes.
Institutional Design — The Takeaways
In this segment of the paper we looked at Smilov’s arguments of how a court system draws its
legitimacy and normative power from at least four different sources: the separation of powers, the rule of
law, impartiality of the court, and a cooperative discussion of constitutional issues (a rejection of Smilov’s
argument of judicial sovereignty). The exploration of these four variables identified an interrelation of
many of the concepts and variables, so influencing one area can impact many; this helps standardize
mechanisms for improving legitimacy into categories of appointment, structure, and culture. What we will
do to execute upon these mechanisms is outlined more extensively in the final section but an overview is
given now.
We will begin with the hardest to encapsulate, yet in many ways the most broadly influential of
the three mechanisms: culture. Culture is the most can be enhanced if we focus on the importance of
values like judicial independence, judicial impartiality, and rule of law in the dialogue across all
institutions related with the judicial branch, both internally and externally. This isn’t something that can
!9

10. be directly influenced, but can be incentivized. As for structural changes, we will seek to redefine the
traditional notion of judicial sovereignty into one of open discussion, meaning compliance with the courts
is only as strong as their general legitimacy — because the change acknowledges this reality, it will force
courts to focus on building it. The remaining structural changes are then: enhancing judicial tenure to
improve impartiality and independence; and professionalizing the court by specializing the appellate
jurisdiction. In terms of appointment, an independent commission with various stakeholders from the
political, judicial, professional, and academic fields will be utilized to increase consensus for for the
supreme court judges, enhancing all sources of legitimacy. Furthermore, appointment should ensure
judges should in some way be demographically representative of the nation to build impartiality.
Behavior as an Actor
The institutional mechanisms that have so far been discussed are only one piece of the puzzle —
they give courts an initial step of legitimacy. The final impact of a court, to some extent, is determined by
its behavior after creation. Building legitimacy through behavior is done over time and to some extent it is
done so well that modern jurists cannot even conceive of a model where their decisions would be ignored.
This can be seen “when members of the Russian Constitutional Court asked their U.S. counterparts
about how they ensured compliance with their decisions, they were taken aback with the American
Justices' response: ‘They simply did not understand us,’ the Russians bemoaned. ‘It simply had not entered
their heads that the decisions of the Court would not be implemented’” (Epstein et. al 126). However, the
US model was not always like this. Through his leadership, Marshall’s court established the principle of
judicial review overturning law. He further worked in many ways to enhance the court’s legitimacy though
behavior: unanimity, enumerating decisions that wouldn’t upset the parties involved, etc. Behavior can be
improved by enhancing culture. Ultimately, this section will explore behavior because it is a key part of
our constitutional history as well as an important factor to consider in many emerging nations.
!10

11. Generally, courts are understood to have binding decisions (sovereignty). However, in reality, they
are “constrained actors,” meaning they consider other actors to “lend force to their decisions” (Epstein et.
al 125). The more effectively they make these considerations and limit their decisions within the scope of
other actors per decision, the further they broaden their scope of acceptable decisions in the future,
ultimately becoming “unconstrained actors” (125). This scope of decision is otherwise known as the area
where tolerance intervals of institutional actors overlap. A “tolerance interval” is an interval that exists for
every actor (branch of government) and is the extent,
ideologically, of decisions upon which the respective actor
would not challenge the court. This is modeled to the right.
“Those intervals […] represent the elected actors' ex ante
assessment of the relative costs and benefits of attempting an ‘attack’ on the Court”, for which “these
actors take into account four factors” (129). Case salience, the extent to which this issue involves or is
relevant to the actor. Case authoritativeness, which is simply the weight of the precedent (have there been
multiple decisions, has the court been unanimous, etc.). Policy-specific public support, what the general
public thinks about the issue at hand. Lastly, diffuse public support, the legitimacy the court has built up
across society (129).
The Russian court demonstrates this model perfectly. The only notable drawback is that the
analysis utilizes mainly qualitative data. However, I would argue that for this model qualitative analysis is
in a way beneficial because it is most similar to the ways actors would make their assessment. During
Russia’s tumultuous start as a nation its court was suspended, the constitution rewritten, and a new court
took its place. These two courts behaved very differently, resulting in different levels of legitimacy and
permanence. The Russian court had three large categories of decisions: separation of powers, federalism,
and individual rights. On cases of separation of powers and federalism, tolerance intervals of the actors
rarely coincided; however, they were almost always in agreement on the individual rights of the branches.
!11
Pres.
Senate
House
Scope

12. In its first court era, over 62% of decisions were not considered “safe.” BY issuing unsafe decisions they
opened themselves to conflict from the other branches and also increased the chance this conflict would
occur in the future by decreasing tolerance intervals. In its second era, the court seemed to learn from its
mistakes as judges claimed they sought to avoid “acute political questions” (Epstein et. al 153). In this
period we saw that 90% of the court’s decisions were in the safe area of overlap in tolerance intervals.
Judges ruled mainly on topics of individual rights, broadening all tolerance intervals and creating an area
of overlap in federalism decisions, which the court then ruled on. Ultimately the court was able to increase
its legitimacy across the polity.
Conclusion
This section outlined two complex, interrelated models for achieving judiciary legitimacy. The
“basic framework for the democratic system is initially established by the enactment of a constitution,”
which through consideration of cultural, structural, and appointment factors can be institutionally
designed to enhance legitimacy. Second, “the fine-grained institutional structure evolves over time as the
product of the legal and political interactions among various political actors" — being aware of this can
impact the court’s role in those interactions (Epstein et. al 155). Although establishing a stable, effective,
democratic state is a complex process that takes a long time, the judiciary is a very important piece of this
establishment. In summary, the purpose of the judiciary is to produce complied and respected
judgements, and it can do this by maximizing legitimacy through various design changes and behaviors.
Let us now look to what exactly these changes will be.
What Will Changes to US Normative Model Look Like?
In the previous section, we conclusively indicated the three areas for improving legitimacy:
culture, structure, and appointment. In this section we will investigate what changes will cause these
!12

13. mechanisms to generate more judicial legitimacy. Let us begin by looking more specifically at culture, in
many ways the most crucial of the three but also the hardest to capture.
Culture
Culture is a unique mechanism as many scholars seem to mention the need for changes in culture,
but usually as part of a broader set of suggestions. It tends to be under-defined; however, it can be roughly
understood as “virtue” or “good understanding.” Culture relates to how the judiciary and related
institutions understand the nature of the judicial branch. Macdonald and Kong really give the best
understanding of culture when they outline that ideas like judicial independence should be a judicial
virtue. A virtue is something we strive towards, an ideal, a final understanding. Throughout the paper they
explain it as something that justices, society, and other institutions should acknowledge. For instance, they
argue “whether the rule of law thrives is dependent on a range of factors, including a culture of public
commitment to the institutions that support the rule of law and a system of separation of
powers” (Macdonald and Kong 845). This same thought applies to all the various ideals and members
involved. However, only incentives can improve culture. How can we incentivize thinking about these
ideals? By structuring the institutions in such a way that judges consider these virtues, as we will see in
some of the changes in the section. By bringing these issues to the forefront for judges, they can diffuse
into other areas of society like academia, public discussion, and other branches. Thereby further
enhancing the understanding and quality of these virtues, again strengthening the judiciary and its
legitimacy — creating a self-enforcing feedback loop. In the end, culture is an important part of ensuring
courts have longevity and behave properly.
Structure
To make changes in structure, we must start with its core. This means replacing the traditional
notion of judicial sovereignty with one of open discussion. Because courts will no longer have this circular
!13

14. sovereignty claim to legitimacy, and instead are a part of an open discussion between the legislature and
judiciary, judges are consciously and constantly reminded that their opinions are only as strong as their
legitimacy. This structural change not only reflects the reality of the system, as we had seen earlier judges
have no way of enforcing their decisions; it also bolsters culture in the most direct way. Because the society
is now consistently and consciously aware that judiciary power stems from the institution’s legitimacy,
culture improves. They will have to keep in mind the goals of enhancing impartiality, independence, and
the rule of law when structuring the branch. With this frame of mind the following structural changes will
be with implemented: reworking judicial tenure, and specializing the appellate jurisdiction. Judges more
specifically will be culturally aware of behavior, as it is their most direct way of increasing legitimacy. Let
us understand this structural change by looking at the debates around it.
The debates for structuring of power among institutions have two extremes — legislative and
judicial supremacy, argued by Waldron and Dworkin respectively. Dworkin argues that courts have
sovereignty because they can guarantee rights protection impartially “with equal concern and
respect" (Dworkin 17). As we saw earlier in the paper, this claim is false. We can strive for these virtues;
however, when it comes to meeting them and building a model off it, this is somewhat unrealistic. We then
look to Waldron, who says the opposite. Essentially because judges will never be impartial, it is
“unpleasantly condescending” that these unelected officials are then given sovereignty. Waldron instead
proposes a model of legislative supremacy (Waldron 303). The main flaw with this model is that it relies
heavily on society understanding debates that of a constitutional nature, such as rights, are inherently
different from simple discussions of what law to pass. They should be discussions grounded in a “political
culture of mutual respect” (310). He essentially makes the same mistake as Dworkin here, assuming that
his proposed justification will be inherently true and that the society will instantly and holistically adjust
political culture to one that Waldron describes.
!14

15. Gardbaum on the other hand provides an alternative to either model of supremacy, solving the
issues with both and curing “the over-legalization or judicialization of principled public discourse” and
preventing “the legislative and popular debilitation that has long been identified as a major institutional
cost of constitutionalization” (Gardbaum 173). This model gives the legislature power to overturn a
court’s constitutional decision, in effect opening and enhancing a culture and dialogue of rights and
constitutional issues. Hilbink outlines that this model rejects “a strict distinction between law and politics,
[which] grants supreme authority to the judiciary in constitutional decision making and sets up the
relationship between the judiciary and legislature in binary and oppositional terms” (Hilbink 233). If the
courts are restructured this way, we can more consciously think about mechanisms of achieving legitimacy.
Especially with instruments that are based on merit and theory rather than based off a circular
assumption.
The next structural implement we will explore is judicial tenure. Judicial tenure is an important
factor to achieve independence and, in turn, impartiality. If a justice is tenured they don’t have to worry
about political pressures to those who appointed them, and they also don’t have to worry about losing a
position because of a ruling. Furthermore, “commitment theorists predict an inverse relationship between
legislative tenure and judicial tenure” (Macdonald and Kong 845). However, tenure can’t be indefinite like
it is currently in the US model — this can lead to a judge’s opinions being “grossly out-of-step with the
rest of the political system,” in other words, unprofessional (Hilbink 231). Instead, judges should be
tenured until age 75, as in the Canadian and UK models, ensuring a wholly legitimate term. This allows
them to behave freely, professionally, and in accordance to the principles reinforced by their surrounding
culture.
Now we’ll look to change the structure of the appellate courts to enhance the rule of law and
impartiality. The appellate court’s judges should be specialized in a model similar to that of Germany’s
constitutional court. The German model of specialization splits the supreme court into two “senates” that
!15

16. pick issues from various legal subjects at the start of the session based on caseload (Damle 1297).
Furthermore, based on the issues their senate selects, each judge becomes a “rapporteur,” with an
expertise in a specific area of law (1298). These judges are then responsible for creating “votum[s]” for
cases in their legal area — a votum is essentially a “major research report. [The judge] describes the
background and facts of the dispute, surveys the court’s own precedent and the legal literature, presents
fully documented arguments advanced on both sides of the question, and concludes with the personal
view of how the case should be decided” (1299). The reason we look to the German constitutional court’s
specialization is that in the Kelsenian legal system, the constitutional court most closely resembles a court
in the US jurisdiction. Also, since the US supreme court hears at most 1% of cases appealed to it, we seek
to apply the specialization at an appellate level to have a more immediate impact on the law. Moreover,
the precedent and values of this more precise decision making will simply diffuse upwards.
Fusing this model into the US system is very straightforward — at the start of a legal term justices
can pick a few topics based off caseload. Then when an issue comes to the court and a panel of three is
chosen to adjudicate, it can be formed based on the issues involved and then justices randomly chosen
from other, non-related, topics; the most relevant justice(s) will be tasked with preparing a votum for the
panel which will ultimately adjudicate. This approach is interesting because it capitalizes upon the benefits
of both a generalist and specialized court. The more specialized justice(s) get to voice their opinion and
expertise, while the ultimate decision is more generalist because there are multiple judges involved.
Additionally, because the way topics are chosen helps manage caseload, this model also improves the
perception of impartiality because it allows the courts to remain efficient and low-cost, hearing every case.
Ultimately through this model, decision making will be more legitimate because law is more uniform and
professional across the polity, caseload is managed effectively, and the final opinions tend to be more
unanimous.
!16

17. Appointment
Appointment is specifically covered last because it enhances all claims of legitimacy, and in many
ways draws upon the impacts of the mechanisms proposed in this section. Akkas argues the
“appointment system has a direct bearing on the impartiality, integrity and independence of
judges” (Akkas 200). This “direct bearing” is because as much as a society structures institutions and
enhances culture — if they pick the wrong people, decisions will suffer. Judicial appointment can be
improved if judges are selected by an independent commission that accounts for the various stakeholders
we have discussed so far. A pluralist approach similar to South Africa’s will be taken, their commission
“consists of judges, the Minister of Justice, practicing and academic lawyers, members of the National
Assembly including a substantial number of opposition members, members of the Provincial parliaments,
persons nominated by the President of South Africa after consulting leaders of all political parties
represented in the National Assembly and in some cases the Premier of the Province or the Premier’s
nominee” (Akkas 209). The independent commission increases the number and background of
stakeholders. The political, judicial, professional, and academic fields will be utilized to increase consensus
for for the supreme court judges: enhancing independence and in turn impartiality, and the rule of law. It
is important to keep in mind that culture will in many ways influence the decisions this commission makes.
For instance, if the commission wants to strive towards creating an impartial court and is much more
culturally aware of the value, they would try to make the court roughly representative of the
demographics in the nation. In the end, similarly to the South African model, the commission would slate
three more appointees than are needed. Following the idea that judiciary is inherently political, and
constitutional courts will represent a back-and-forth dialogue between the judicial and the political, the
appointees are ultimately proposed by the executive and voted in by the legislature. This political portion
of appointment will further enhance legitimacy of the courts by giving them more credibility in the open
dialogue system.
!17

18. Conclusion
To finish off this section, we went through three areas to improve — culture, structure, and
appointment. Through these we were able to create a final normative model that captured the reality of
the judicial branch by replacing sovereignty with a model of open discussion. This underlying framework
enhances culture by making the judiciary and society more aware of how to improve judicial legitimacy.
Judicial tenure, which enhances independence and impartiality, was reformed to include a retirement age
of 75 to also ensure professionalism and thereby rule of law. Legitimacy through rule of law and
impartiality were further built upon by specializing the US appellate jurisdiction, making it more
professional and efficient. Lastly, appointment was redesigned to enhance all the scores of legitimacy. By
increasing the stakeholders, justices become more independent and impartial, and more professional. The
changes proposed to institutions in this section only capture one portion of our normative model — to
fully enhance legitimacy in the judicial system we must understand and advance the culture in recognition
of these values.
Conclusion
A normative model was designed that started with understanding that the purpose of a court is to
create complied and respected decisions. This can be done by increasing legitimacy. Legitimacy was
understood to be built institutionally, and behaviorally. Through investigating legitimacy, three areas of
improvement were determined: culture, structure, and appointment. By focusing on these areas of
improvement, a comprehensive normative model grounded in the US system that enhanced legitimacy
was created.
!18

19. Works Cited
Akkas, Sarkar Ali. "Appointment of Judges: A Key Issue of Judicial Independence." Bond Law Review 16.2
(2004): 200-210. Web. 18 Dec. 2015
Damle, Sarang Vijay. “Specialize the Judge, Not the Court: A Lesson from the German Constitutional
Court”. Virginia Law Review 91.5 (2005): 1267–1311. Web. 18 Dec. 2015.’
Dworkin, Ronald. Freedom's Law: The Moral Reading of the American Constitution. Cambridge, MA:
Harvard UP, 1996. Print.
Epstein, Lee, Jack Knight, and Olga Epstein et. al. "The Role of Constitutional Courts in the
Establishment and Maintenance of Democratic Systems of Government." Law & Society Review
35.1 (2001): 117. Web. 18 Dec. 2015.
Gardbaum, Stephen. "Reassessing the New Commonwealth Model of Constitutionalism." International
Journal of Constitutional Law 8.2 (2010): 167-206. Print.
Hamilton, Alexander. The Federalist: A Collection of Essays. New York: n.p., 1788. The Federalist #78.
Web. 18 Dec. 2015.
Hilbink, Lisa. "Assessing the New Constitutionalism." Comparative Politics 40.2 (2008): 227-45. Print.
Jacob, Herbert et. al. Courts, Law, and Politics in Comparative Perspective. New Haven: Yale UP, 1996. Print
La Porta, Rafael, Florencio López‐de‐Silanes, Cristian Pop‐Eleches, and Andrei Shleifer. "Judicial Checks
and Balances." Journal of Political Economy 112.2 (2004): 445-70. Web. 18 Dec. 2015.
Laski, Harold J.. “The Technique of Judicial Appointment”. Michigan Law Review 24.6 (1926): 529–543.
Web. 18 Dec. 2015
!19

20. Macdonald, Roderick A., and Hoi Kong. "Judicial Independence as a Constitutional Virtue." Oxford
Handbooks Online. 2012-11-21. Oxford University Press. Web. 18 Dec. 2015.
Smilov, Daniel. "The Judiciary: The Least Dangerous Branch?." Oxford Handbooks Online. 2012-11-21.
Oxford University Press.
Sweet, Alec Stone. "Constitutional Courts." Oxford Handbooks Online. 2012-11-21. Oxford University
Press. Web. 18 Dec. 2015.
Sweet, Alec Stone. "Constitutional Courts and Parliamentary Democracy." West European Politics 25.1
(2002): 77-100. Print.
Waldron, Jeremy. Law and Disagreement. Oxford: Oxford UP, 2001. Print
!20