Constitutional Conventions and the Judiciary

Analyses of constitutional conventions tend not to include those conventions that concern relations between the judiciary and other arms of government. The focus is generally on the conventions concerning the monarch, executive and legislature. This article argues that a study of the constitutional conventions relating to the judiciary reveals three insights about the nature of constitutional conventions and the nature of the judiciary. First, significant aspects of the judiciary’s authority, independence and impartiality are often secured by means of constitutional convention. Second, these conventions help understand the simultaneous strength and fragility of the judiciary’s constitutional position. Third, they highlight that, contrary to suggestions in the literature on democratic decay, it is not always problematic for constitutional conventions to be modified or even destroyed. To illustrate these insights, the article compares the executive’s duty to defend the judiciary from public attack in Australia, the UK and the United States.