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Ohio State Law Journal

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It is well settled that independent courts play a vital role in promoting rule-of-law and separation-of-powers norms. At the same time, judicial independence must be reconciled with other values that we also wish to recognize as foundational. Professor Brudney addresses two areas of controversy that are associated with the celebration of judicial autonomy in our legal culture. He first discusses the role of political and personal background factors in shaping judicial selection and influencing judicial outcomes. He explains why both the President and Congress have come to rely increasingly on such background factors when seeking to anticipate the broad contours of judicial performance. While critical of occasional excesses in that monitoring effort, Brudney argues for greater awareness of—and sophistication about—the ways in which such pre-judicial background and experiences contribute to the development of legal doctrine. Brudney then turns to the realm of statutory interpretation, exploring the relationship between the norm of legislative supremacy and the professed aspiration for a more dependent judiciary. In examining three major theories of statutory construction, Brudney suggests that two of them—textualism and dynamic interpretation—are more likely to view independent courts as acceptable if not preferred agents of social progress, while the third theory—intentionalism—is inclined to be more respectful of Congress’s authority and perhaps also more skeptical about the role of courts as independent players in this particular policymaking arena.