Is there such a thing as a truly independent judiciary?

I sat on the bench for nineteen years. I want to be honest about what that experience teaches you about the question of judicial independence, because the honest answer is more complicated than either its defenders or its critics usually allow.

The institutional independence is real. I could not be dismissed for a judgment the government disliked. I could not be directed by a minister. I could not be pressured, in any formal sense, to reach a particular conclusion. In that sense, and it is a genuinely important sense, the independence that matters most is there.

But the article is right that appointment is political, and it would be dishonest to pretend that doesn't matter. Every judge is the product of a professional and social world that shapes what seems obvious, what requires argument, what counts as common sense. You do not arrive on the bench as a blank slate. No one does. The training, the culture of the profession, the cases you have argued, the lives you have lived, all of this is present in the room when you deliberate.

What the institutional structure does is discipline that. Stare decisis, the obligation to follow precedent, constrains the degree to which personal conviction can drive outcomes. The requirement to give reasons, which can be appealed and criticised, creates accountability. The appellate structure means no single judge's biases go unchecked indefinitely. These constraints are real and they matter.

The most honest thing I can say is this: judicial independence is not a state you achieve. It is a practice you sustain, imperfectly, through institutional structures that make the worst departures from it visible and correctable. A judge who is never wrong is a judge who is not being watched. The best argument for judicial independence is not that judges are impartial, we are not, entirely, but that the institutional design makes our partiality harder to exercise and easier to correct than the alternatives.

The alternative is judges who can be fired for inconvenient rulings. I have sat in jurisdictions where that was effectively the case. It is not better. It is significantly worse.

I have stood in courts where I knew the judge agreed with the prosecution before I had opened my mouth. I have also stood in courts where the judge ruled against a government minister in a case that was, politically, extremely sensitive, and did so without apparent hesitation. Both of those experiences are part of my answer to the question of whether judicial independence exists.

The honest answer from the courtroom is: it exists, it is imperfect, and it is fragile in ways that depend heavily on the quality of the individuals in the system at any given moment.

The article describes independence as the ability to remove leaders without bloodshed. From where I stand, judicial independence is something more specific: it is the ability of a client, any client, including ones the state despises, to have their case heard by someone who is genuinely trying to apply the law rather than deliver a predetermined outcome. That is what I am asking for every time I stand up. Sometimes I get it. Sometimes I do not.

What I have noticed over twenty years is that the independence is most robust at the appellate level and most fragile in routine criminal proceedings where the institutional pressure to process cases quickly overwhelms the individual judge's capacity for careful attention. The grand principle of independence is strong. Its daily application is variable.

The question of whether it is truly achievable is, I think, the wrong question. The right question is whether the structures in place are sufficient to make it work well enough, often enough, that it is better than the available alternatives. By that standard, the answer in most common law jurisdictions is yes. Not yes with confidence. Yes with reservations. But yes.

My clients, the ones who needed a fair hearing most desperately, generally got one. That is more than they would have got in the absence of the principle, however imperfect its application.

I want to be clear about what I actually believe, because this debate tends to get muddled by people pretending the question is more complicated than it is.

When a Supreme Court rules that a law passed by an elected parliament is incompatible with a constitution or a convention, it is making a political decision. It is choosing between competing values. It is substituting its judgment for the judgment of the people's representatives. And the people on that court were not elected, cannot be removed for their decisions, and are drawn overwhelmingly from a narrow professional and social class with its own values and assumptions.

I am not arguing for corrupt courts. I am arguing that the current settlement, in which unelected lawyers can strike down the democratic choices of elected governments, and call this process something other than political, is dishonest. It is political. The question is whose politics, and who chose the people exercising it.

The standard response to this argument is that judicial independence protects minorities from majorities. That is true. It is also true that it protects particular minority interests more reliably than others, specifically the interests of property owners, corporations, and people whose lawyers can afford to reach the Supreme Court. The ordinary criminal defendant's experience of an independent judiciary is considerably different from the corporate litigant's.

I believe in the rule of law. I believe in courts. What I do not believe is that the current system of judicial appointment and judicial review is as politically neutral as its defenders claim. The independence is real in the limited sense that judges cannot be fired for individual decisions. It is less real in the sense that the people making those decisions were selected, trained, and socialised in a process that is thoroughly political before they ever sit on the bench.

Name it honestly and we can have an honest conversation about how to improve it. Call it independent and the conversation never really starts.

The question is badly framed, and the bad framing is itself revealing.

'Truly independent' sets a standard that nothing in human governance achieves. Parliaments are not truly independent of lobbyists. Executives are not truly independent of electoral pressure. Central banks are not truly independent of governments that appoint their governors. The question is not whether judicial independence is perfect but whether, given the available alternatives, it is achievable to a degree sufficient to do the work we need it to do.

Comparative constitutional design gives us useful data here. The United States Supreme Court, with its lifetime appointments and increasingly partisan confirmation process, provides one model. The German Federal Constitutional Court, with its eight-year non-renewable terms and requirement for two-thirds parliamentary majority for appointments, provides another. The United Kingdom's Supreme Court, with its Judicial Appointments Commission and statutory independence from the Lord Chancellor, provides a third. These are not equivalent systems. They produce meaningfully different patterns of judicial behaviour and meaningfully different degrees of de facto independence from political pressure.

What the comparative record suggests is that independence is not binary. It is a spectrum, shaped by institutional design choices that can be made better or worse. Term length, appointment process, scope of review, salary protection, security of tenure, each of these variables affects where a court sits on that spectrum. The question for constitutional designers is not whether perfect independence is achievable (it is not) but which design choices push the system furthest toward the end of the spectrum where judicial reasoning dominates political calculation.

The answer, based on the available evidence, is: shorter non-renewable terms, appointment processes that require cross-partisan agreement, transparent criteria for selection, and strong norms against post-judicial political careers. None of these make courts truly independent. All of them make them more independent than they would otherwise be. In a domain where perfection is unavailable, more is the relevant standard.