When Courts and Congress Collide: The Struggle for Control of America's Judicial System

by Charles Gardner Geyh

Overview

"This is quite simply the best study of judicial independence that I have ever read; it is erudite, historically aware, and politically astute."
---Malcolm M. Feeley, Claire Sanders Clements Dean's Professor, Boalt Hall School of Law, University of California at Berkeley

"Professor Geyh has written a wise and timely book that is informed by the author's broad and deep experience working with the judicial and legislative branches, by the insights of law, history and political science, and by an appreciation of theory and common sense."
---Stephen B. Burbank, David Berger Professor for the Administration of Justice, University of Pennsylvania Law School


With Congress threatening to "go nuclear" over judicial appointments, and lawmakers accusing judges of being "arrogant, out of control, and unaccountable," many pundits see a dim future for the autonomy of America's courts. But do we really understand the balance between judicial independence and Congress's desire to limit judicial reach? Charles Geyh's When Courts and Congress Collide is the most sweeping study of this question to date, and an unprecedented analysis of the relationship between Congress and our federal courts.

Efforts to check the power of the courts have come and gone throughout American history, from the Jeffersonian Congress's struggle to undo the work of the Federalists, to FDR's campaign to pack the Supreme Court, to the epic Senate battles over the Bork and Thomas nominations. If legislators were solely concerned with curbing the courts, Geyh suggests, they would use direct means, such as impeaching uncooperative judges, gerrymandering their jurisdictions, stripping the bench's oversight powers, or slashing judicial budgets. Yet, while Congress has long been willing to influence judicial decision-making indirectly by blocking the appointments of ideologically unacceptable nominees, it has, with only rare exceptions, resisted employing more direct methods of control. When Courts and Congress Collide is the first work to demonstrate that this balance is governed by a "dynamic equilibrium": a constant give-and-take between Congress's desire to control the judiciary and its respect for historical norms of judicial independence.

It is this dynamic equilibrium, Geyh says, rather than what the Supreme Court or the Constitution says about the separation of powers, that defines the limits of the judiciary's independence. When Courts and Congress Collide is a groundbreaking work, requiring all of us to consider whether we are on the verge of radically disrupting our historic balance of governance.

Charles Gardner Geyh is Professor of Law and Charles L. Whistler Faculty Fellow at Indiana University at Bloomington. He has served as director of the American Judicature Society's Center for Judicial Independence, reporter to the American Bar Association Commission on Separation of Powers and Judicial Independence, and counsel to the Judiciary Committee of the U.S. House of Representatives.

Product Details

ISBN-13:	9780472024568
Publisher:	University of Michigan Press
Publication date:	12/22/2009
Format:	eBook
Pages:	360
File size:	1 MB

Read an Excerpt

WHEN COURTS & CONGRESS COLLIDE

The Struggle for Control of America's Judicial System

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By CHARLES GARDNER GEYH

THE UNIVERSITY OF MICHIGAN PRESS

Copyright © 2006 University of Michigan
All right reserved.
ISBN: 978-0-472-09922-1

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Chapter One

The Origins of American Judicial Independence and Accountability

THERE IS AN INESCAPABLE LOGIC to beginning the story of American judicial independence at the beginning, with the founding of the nation. The "original intent" of those who conceived, drafted, ratified, or implemented the Constitution, however, does not tell us too terribly much about what judicial independence means today. When it came to providing for a judicial branch, the founders of the United States not only painted with an unusually broad brush but left their work in dire need of additional coats, which they assigned Congress to apply. This book is dedicated to demonstrating that our current conception of the judiciary's independence from Congress is the product of a developmental process two centuries in the making. That process began with the framers of the Constitution, who set a tone solicitous of the judiciary's autonomy, but who left so many details to political branch resolution as to require that the contours of the judiciary's independence be developed by subsequent generations. The net effect of describing a system of government in such general terms, with so many questions left unresolved, was to createan opportunity, if not the necessity, for conventions or customs to fill the void. Given their clear, if undeveloped, commitment to judicial independence, the founders created a constitutional climate hospitable to the subsequent development of independence norms, chronicled in later chapters of this book.

Judicial Independence Prior to the Constitutional Convention

The dependence of colonial courts on the English monarch was among the flash points that sparked the Declaration of Independence. English judges had been granted tenure during "good behavior" in the 1701 Act of Settlement, as a means of protecting them against at-will discharge of the crown. Colonial judges, in contrast, were made to serve at the pleasure of the king, an arrangement that, in the words of one scholar, was "met with stiff resistance from colonial legislatures and pamphleteers." In Massachusetts, the English governor insisted that colonial judges remain dependent on the crown-rather than on the Massachusetts legislature for their salaries-prompting the outcry that it would be "unconstitutional for the judges to be independent of the people and dependent on the crown." Such conflicts over tenure and salary ultimately gave rise to a grievance in the Declaration of Independence-that the king "has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries."

On a related front, judicial independence issues were implicated, at least indirectly, by the monarch's repeated rejection of laws enacted by state legislatures to reauthorize judicial systems in North Carolina, Pennsylvania, and Virginia. These episodes brought the administration of justice in the affected states to a grinding halt and precipitated an additional grievance in the Declaration of Independence-that the king "has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers."

One conceivable lesson that the colonists could have learned from these recurrent battles over control of the state judicial systems is that the integrity of the judicial branch and the separate power it exercises can and will be undermined unless the judiciary is afforded a measure of institutional independence. In 1776, John Adams made just such a point in a pamphlet on the Virginia Constitution, when he declared that "the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both."

This view, however, did not immediately win the day. "Despite John Adams's warnings," writes Gordon Wood, "most of the early constitution-makers had little sense that judicial independence meant independence from the people." In other words, the perceived "problem," as articulated in the Declaration of Independence, was not judicial dependence per se but judicial dependence on the monarch. Accordingly, the perceived "solution" to judicial dependence on the executive was not judicial independence but judicial dependence on the legislature or the electorate.

Many of the early state constitutions thus imposed judicial term limits or subjected judges to reselection, while those constitutions that established tenure during "good behavior" often gave the general assembly control over judicial salaries or subjected judges to removal upon a simple address of the legislature. Wood concludes:

These constitutional provisions giving control of the courts and judicial tenure to the legislatures actually represented the culmination of what the colonial assemblies had been struggling for in their eighteenth-century contests with the Crown. The Revolutionaries had no intention of curtailing legislative interference in the court structure and in judicial functions, and in fact they meant to increase it. As Jefferson said to Pendleton in 1776, in relation to the legislature the judge must "be a mere machine."

Against this backdrop, support for judicial dependence on the legislature becomes understandable, but it remains difficult to reconcile such support with the widespread commitment to constitutional separation of legislative, judicial, and executive power. That the judiciary could be wholly dependent on the legislature and still be expected to exercise judicial power in ways that justified separating legislative from judicial power in the first place underscores how supremely trusting the fledgling states were of their legislatures and how little they had actually thought about separation of powers as it applied to the judicial branch. Julius Goebel has observed, "For all the anxieties to make explicit the fundamentals proper to a constitution, the judicial generally came off with little more than an honorable mention because these anxieties were everywhere spent upon making less of the executive and more of the legislative branch."

Despite their good intentions, concluded Goebel, the framers of the state constitutions failed to recognize that "provisions for salary and tenure designed to assure the independence of judges were insufficient safeguards for the independence of the judicial function itself." In the years following the Declaration of Independence, a series of events deflated support for judicial dependence on the legislature and the electorate and created momentum for greater judicial independence. In 1784, a New York court effectively struck down state legislation as contrary to the law of nations, prompting an unsuccessful attempt to remove the opinion writer. In 1786, a comparable exercise of judicial review by the Rhode Island Superior Court culminated in a successful effort by the legislature to remove the judges who decided the case.

These and like events catalyzed considerable support for two discrete forms of judicial independence by the eve of the Constitutional Convention: (1) the decision-making independence of individual judges to resist political branch interference with their rulings in isolated cases and (2) the institutional independence of the judicial branch to resist political branch encroachments on judicial power. On the one hand, in a speech at the Pennsylvania ratification convention in 1787, James Wilson made the case for the former species of independence, arguing that Article III tenure and salary protections were needed to give federal judges the independence state judges lacked, to enforce individual rights impartially.

[I]t has often been a matter of surprise, and frequently complained of even in Pennsylvania, that the independence of the judges is not properly secured. The servile dependence of the judges, in some of the states that have neglected to make proper provision on this subject, endangers the liberty and property of the citizen; and I apprehend that, whenever it has happened that appointment has been for a less period than during good behaviour, this object has not been sufficiently secured.

Thomas Jefferson, on the other hand, had become troubled by the judiciary's incapacity as an institution to resist legislative encroachments on the judicial power. His 1776 pronouncement that the judiciary should be "a mere machine" for the legislature was eclipsed eight years later by the concern (albeit a fleeting one, in a career marked more by hostility to than support for judicial independence) that his state judiciary now lacked the independence needed to exercise judicial power without legislative branch interference.

[Under the Virginia Constitution, t]he judiciary ... members were left dependant on the legislative, for their subsistence in office, and some of them for their continuance in it. If therefore the legislature assumes ... judiciary powers, no opposition is likely to be made; nor, if made, can it be effectual; because in that case they may put their proceedings into the form of an act of assembly, which will render them obligatory on the other branches. They have accordingly, in many instances, decided rights which should have been left to judiciary controversy.

In sum, events leading up to the Constitutional Convention created a perceived need for judges to be independent individually as decision makers and collectively as a separate branch of government. The distinction between these two forms of independence was, however, conflated to a considerable extent, because the one sustained threat to state judicial independence during this period-manipulation of judicial tenure and salary-simultaneously undermined decision making and structural independence. With all eyes focused on threats to tenure and salary, comparatively little attention was paid to other ways in which the legislature could compromise the integrity of the judicial branch, such as by manipulating the courts' duties or nonremunerative resources. To the extent such issues arose among the states, judicial review provided an apparent remedy: judges otherwise secure in their stations could simply invalidate unconstitutional encroachments on their institutional autonomy.

Thus, for example, in January 1788, the Virginia legislature enacted a statute that established district courts by imposing on "the judges of the high court of appeals" the duty to "attend the [district] courts, allotting among themselves the districts they shall respectively attend." In a "Respectful Remonstrance of the Court of Appeals," the Virginia High Court of Appeals declared the act unconstitutional. At the outset, the court observed, "The propriety and necessity of the independence of the judges is evident in reason and the nature of their office." Judges must be dependent on neither the government nor the people, the court continued: "And this applies more forcibly, to exclude a dependence on the legislature; a branch, of whom, in cases of impeachment, is itself a party." The act in question, by imposing on the judges duties that, "though not changed as to their subjects, are yet more than doubled, without any increase of salary," was nothing short of "an attack upon the independency of the judges."

For vain would be the precautions of the Founders of our government to secure liberty, if the legislature, though restrained from changing the tenure of judicial offices, are at liberty to compel a resignation ... by making it a part of the official duty to become hewers of wood, and drawers of water: Or, if, in case of a contrary disposition ..., by lessening the duties, render offices, almost, sinecures: the independence of the judiciary is, in either case, equally annihilated.

Accordingly, the Virginia court concluded that "the constitution and the act are in opposition and cannot exist together" and that "the former must control the operation of the latter."

In the contemporaneous debate over ratification of the U.S. Constitution in Virginia, Patrick Henry alluded to the preceding remonstrance in support of his argument that an independent judiciary was needed to exercise judicial review and that judicial review was needed to preserve an independent judiciary.

Yes, sir, our judges opposed the acts of the legislature. We have this landmark to guide us. They had fortitude to declare that they were the judiciary, and would oppose unconstitutional acts. Are you sure that your federal judiciary will act thus? Is that judiciary as well constructed, and as independent of the other branches, as our state judiciary? Where are your landmarks in this government? I will be bold to say you cannot find any in it.

The landmark that Henry sought for federal court exercise of judicial review was later supplied in Marbury v. Madison. Before federal judicial review could enable otherwise independent judges to resist encroachments on their institutional independence, however, a second landmark was also needed-one in support of the proposition that legislative encroachments on the judicial branch, akin to those deemed contrary to the Virginia Constitution in the preceding remonstrance, would likewise be declared invalid under the U.S. Constitution. As discussed shortly, delegates to the Constitutional Convention may have unwittingly obscured this second landmark by delegating to Congress more regulatory authority over the courts than was consistent with the delegates' expectation that the judiciary would possess the means to rebuff assaults on its institutional integrity.

Judicial Independence at the Constitutional Convention

In the years leading up to the Constitutional Convention, threats to judicial independence-in its institutional and decision-making forms-had been largely confined to issues of judicial tenure and salary. It is therefore unsurprising that efforts relating to the protection of judicial independence were focused on insulating judicial tenure and salary from political branch manipulation. Accordingly, the ninth resolution of the Virginia delegation to the Constitutional Convention proposed that federal judges "hold their offices during good behavior" and receive a "compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time."

The Good Behavior Clause

The good behavior clause remained essentially intact throughout the Constitutional Convention and was directly challenged only once. On August 27, 1787, John Dickinson moved to follow the good behavior clause with a proviso that judges "may be removed by the Executive on the application [by] the Senate and House of Representatives." The motion met with overwhelming opposition, despite the prevalence of comparable restrictions on judicial tenure in many state constitutions established just a decade earlier. James Madison's notes reported Gouverneur Morris as arguing that it was "a contradiction in terms to say that the Judges should hold their offices during good behavior, and yet be removable without a trial," leading Morris to conclude that it would be "fundamentally wrong to subject Judges to so arbitrary an authority." James Wilson agreed, saying, "The Judges would be in a bad situation if made to depend on every gust of faction which might prevail in the two branches of our Gov[ernmen]t"; Edmund Randolph likewise objected on the grounds that the amendment would "weaken too much the independence of the Judges." Dickinson's motion was overwhelmingly defeated by a vote of seven delegations to one.

The Compensation Clause

The compensation clause, as proposed by the Virginia delegation, was modified at the Constitutional Convention to permit periodic increases in judicial salaries. The original resolution forbade upward as well as downward adjustments. The debate on the modification underscored the tension between two competing aims: to insulate judicial salary from legislative manipulation and to permit the legislature to increase judicial pay to ensure that judges receive salaries commensurate with their status as members of an independent branch of government.

(Continues...)

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Table of Contents

\rrhp\ \lrrh: Contents\ \1h\ Contents \xt\ Acknowledgments Introduction Chapter 1. The Origins of American Judicial Independence and Accountability Chapter 2. Congressional Oversight of the Judicial Branch and the Emergence of Customary Independence Chapter 3. The Decline and Fall of Impeachment as a Means to Control Judicial Decision Making Chapter 4. Judicial Appointments and the Prospective Accountability of Judicial Nominees to the U.S. Senate Chapter 5. The Role of the Courts in Preserving Customary Independence Chapter 6. The Dynamic Equilibrium Index \to come\