1. Defining independence:
Two dimensions of independence, and their sources

2. Control vs. Independence
Autonomy/Control: the degree of uncertainty we will tolerate in judicial decisions; the amount of discretion left to individual judges
Independence/Partisanship: the extent to which the decision-maker is identified with one of the parties to the dispute.

3. Control over preferences vs. control over decision-making
lack of preference independence: the over-identification of judges with a party that has an interest in the dispute (often, the executive)
E.g., the Menem court in Argentina, the Constitutional Court in Kyrgyzstan under Akayev
lack of decisional independence: the capacity of an interested party (often, the executive) to interfere with judicial decision-making
E.g., “telephone justice” in Bahia and across the region

4. The source of control: institutional design
Mechanisms of appointment produce different levels of control over the preferences of appointees
Compare simple majority of Senate, to simple majority with filibuster rule, to 2/3 majority
Mechanisms that control decision-making (discipline, promotion, compensation, appellate oversight) produce different levels of control over decision-making
Compare impeachment, to discipline and promotion by an oversight body
Variation in degrees depends on capacity: access to information, available sanctions, ease of use

5. The source of partisanship: politics
Factional dominance of mechanisms of appointment and control
Open and public mechanisms force the use of more consensual standards, so reduce any one faction’s capacity to bias outcomes
Internal mechanisms typically have more information than external mechanisms and are more effective, but harder for outside factions to control
When these mechanisms are controlled by an identifiable faction, the courts lose (at least the perception) of independence.
Political Partisanship
Other kinds of factions: e.g. economic elites (São Paulo, Brz); conservative social elites (Córdoba, Arg)

6. In short:
Politics interacts with institutional design to produce varying levels of independence and control.

7. Independence vs. Uncertainty