The Supreme Court and the New Judicial Independence

In this article, the author argues that the establishment of the Supreme Court imported a new and much broader conception of judicial independence into the constitutional landscape that goes beyond protecting judicial decision-making in individual cases from direct interference by the executive and the legislature: the Supreme Court now interacts with the other branches of government as a distinct institution instead of working alongside them as a component of Parliament. It is argued that the new judicial independence demands institutional autonomy and increasingly formal interactions between the judiciary and the other branches. The article then considers the implications of the new judicial independence in terms of the legitimacy of judicial lawmaking by the Supreme Court, offering a comparison with the experience of the apex courts of Canada and the United States.