535ARTICLETWO CONCEPTS OF JUDICIALINDEPENDENCEPAMELA S. KARLAN*Forty years ago, Isaiah Berlin delivered an extraordinarily influentiallecture called Two Concepts of Liberty.1 As the title suggests, Berlin iden-tified two different kinds of freedom. “Negative liberty” is “liberty from;absence of interference beyond the shifting, but always recognizable, fron-tier.”2 It involves “warding off interference”3 from external forces or otherindividuals. “Positive liberty,” by contrast, consists in freedom to; it refersto the ability to be “a doer—deciding, not being decided for, self-directed . . . [and capable] of playing a human role, that is of conceivinggoals and policies of [one’s] own and realizing them.”4Two Concepts of Liberty offered a rich and complex argument, butseveral of its central points can be stated relatively simply. First, liberty isbut one of a constellation of important and distinct values. There are othervalues—for example, “equality or fairness or justice or culture, or humanhappiness or a quiet conscience”5—to which liberty must sometimes giveway. Second, the positive conception of freedom can become quite illib-eral when it turns from the question of “a man’s inner life . . . to his rela-tions with other members of his society.”6 The equation of liberty with* Professor of Law, Stanford Law School. B.A., 1980, Yale University; M.A., 1984, YaleUniversity; J.D., 1984, Yale Law School. I thank Tom Grey, Eben Moglen, Deborah Rhode, andKathleen Sullivan for a variety of helpful comments and suggestions.1. The lecture is reprinted in ISAIAH BERLIN, FOUR ESSAYS ON LIBERTY 118-72 (1970).2.Id. at 127.3.Id.4.Id. at 131.5.Id. at 125.6.Id. at 145.536 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 72:535“rational self-direction”7 tends toward the assumption that there are politi-cal truths, that these truths can be discovered by reason, and that those inpossession of them are entitled to employ a striking amount of coercion inorder to turn other people into truly free individuals. Negative conceptionsof freedom, by contrast, tend to be more modest and pluralistic, since theycarve out spaces within which each individual governs herself withoutdelving too deeply into what choice she makes within this protectedsphere.Two Concepts of Liberty is quite useful in thinking about judicial in-dependence. It reminds us that, like other forms of liberty, judicial inde-pendence has both negative and positive aspects. Judges must be both freefrom certain kinds of pressures or influences and free to envision and real-ize certain goals. Berlin’s analysis also suggests why it is easier to de-velop a strong consensus for the negative conception of judicial independ-ence than for the positive one. It explains why a positive conception ofjudicial independence ultimately cannot escape substantive judgments.Finally, Berlin’s work cautions us about having too unconditional a com-mitment to judicial independence, particularly in its most positive forms,at the expense of other values. Sometimes, factors that look like structuralthreats to judicial independence from the positive perspective can beequally explicable as structural protections for other values that an un-qualified embrace of judicial independence undervalues. Just as “judicialindependence” may be too loaded a term to refer to all the ways in whichjudges may “ward[] off interference,”8 so too “threats” may be too loadeda term to describe all the constraints on that freedom. Judicial independ-ence is not an end in itself.This Article offers a tentative taxonomy of judicial independence.We might align the various potential constraints judges face on their free-dom to make a particular decision along a continuum. At one end, theconception of judicial independence is entirely negative: It consists of theability to avoid a distinct source of coercion. At the other end, the con-ception may be categorically positive: Judicial independence consists of ajudge’s freedom to pursue her own conception of some desideratum (thetruth, the good, the just, the law) wherever it goes. Sometimes, as Berlinsuggests, it may be difficult to categorize a particular exercise of freedomas negative or positive. I have also found that sometimes it is difficult todistinguish the boundaries between different claims or to decide whichclaim is more expansive. Nonetheless, the effort to catalog the forms of7.Id. at 154 (emphasis added).8.Id. at 127.1999] TWO CONCEPTS OF JUDICIAL INDEPENDENCE 537judicial independence is worthwhile because it allows us to think moreclearly about the inevitable conflict between some forms of judicial inde-pendence and other values we hold.I. FREEDOMS FROMSome of the pressures that might prevent a judge from ruling the wayshe would in an ideal world can be characterized in purely negative terms.As the discussion in this Part suggests, to the extent that a threat is con-ceived of this way, not only do we enjoy a consensus that independence isa paramount goal, but all the structural elements of the sociolegal systemtend to protect, rather than to threaten, judicial freedom of action. We seepotential structural threats to judicial independence emerge roughly at thepoint where judicial independence begins to conflict with other importantgoals of the legal and political systems.A. PHYSICAL COMPULSIONThe simplest case involves the danger that a judge’s independencemight be compromised by fears for her physical safety. If judges weresubject to pressures like the ancient writ of attaint9 or physically coercedinto reaching particular results,10 they would lack the minimal safe spacewithin which to perform their judicial role.I certainly do not dismiss the dangers that some judges have faced asa result of their decisions. Justice Blackmun, for whom I clerked, was thetarget of repeated death threats for having written the opinion in Roe v.Wade,11 and once had a bullet fired into the room where his wife was sit-ting.12 The assassinations of federal judges Robert S. Vance, Richard J.9. At early English law, if a judge or other royal authority disagreed with a jury verdict, hecould seek a writ of attaint. Under attaint proceedings, a second jury of twenty-four jurorswas empaneled to hear the original dispute again. If their verdict differed from the verdict ofthe first jury, the twelve original jurors were immediately arrested and imprisoned, theirlands and property were