THE ROLE OF THE COURTS IN A TRIPARTITE SYSTEM OF GOVERNMENT. UW RETIREES March 15, Barbara B. Crabb

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1 THE ROLE OF THE COURTS IN A TRIPARTITE SYSTEM OF GOVERNMENT UW RETIREES March 15, 2012 Barbara B. Crabb Two months ago, as I was following the drama of the Republican primary campaigns, I heard Newt Gingrich talking about the threat to the nation posed by activist federal judges. Not just activist, but grotesquely dictatorial judges. My first reaction was surprise. I would have guessed that the judiciary was more to Gingrich s liking right now than at any other period in his lifetime. My second reaction was amusement at his suggestion to send federal marshals to arrest judges who issue controversial rulings and force them to appear in front of Congress to explain their rulings. The suggestion seemed wholly improbable. Who in Congress would be interested in hearing a judge explain in excruciating detail what she or he has already explained in excruciating detail in a written opinion? Gingrich seems to be the only major politician who s talked about the judiciary during this primary campaign and has gone on to other topics since then, but the idea of attacking the courts is not a novel occurrence. Quite the contrary. Throughout our history, it has been common for politicians to attack the courts as anti-democratic, elitist and out of touch with the electorate. It s difficult for judges to hear these attacks, knowing that we can t respond to them. It helps to be reminded that conflict among the three branches of the government is the natural, intended consequence of our system. It was designed be a divided, balanced and limited national government, one that would not only control its constituents, but would control itself. The framers gave each branch what they believed were the necessary constitutional powers and personal motives they would need to resist encroachment by the other branches. Well, maybe not quite. The framers gave offsetting powers to the legislative and executive branches. When it came to the judiciary, however, their efforts to achieve balance were less successful. The framers drafted three constitutional provisions intended to give the judiciary independence: (1) housing the judicial power of the new national government exclusively in the judiciary; (2) providing life tenure for federal judges; and (3) giving judges a salary that could never be reduced. But they put off deciding whether the national government needed a system of lower courts. Instead, they provided for such inferior Courts as the Congress may from time to time ordain and establish. In two sentences, the framers established a system in which the judges were to be independent, but the judiciary as an institution was not. As a result, the judiciary was, in Alexander Hamilton s words, both the least dangerous branch, and the most vulnerable. If Congress could decide what inferior courts would be established, it followed that it could decide whether and how those courts would be housed, staffed, furnished, secured and maintained. Congress retained the authority to create new judgeships, confirm new judges and determine the courts jurisdiction, as well as most aspects of the

2 courts organization. And, because the Constitution said only that judges salaries could not be diminished, Congress would decide whether those salaries would ever be increased. In addition, Congress would be responsible not only for passage of all the laws the courts would be enforcing, but for the rules governing the procedures the courts would have to follow in deciding cases. If Congress wanted to, it could retaliate against the courts for any opinions it dislikes: by cutting the courts funding; disestablishing individual courts; adding or taking away justices from the Supreme Court; imposing crippling restrictions on the operations of the courts; narrowing their jurisdiction; impeaching individual judges and justices; and refusing to confirm nominees to fill judicial vacancies. This could well be a recipe for disaster: giving the judiciary the last word on the law, with the inevitable controversies that will provoke, and then giving it no institutional protection. It s a little like giving a person a very old and very unpredictable gun for personal security. If used properly, the gun may perform its intended function, but it s just as possible that it will inflict great damage on its owner. Making the judiciary the final arbiter on the meaning of the law, with the authority to declare a law or practice unconstitutional gives it power, but one that can be explosive and set off backlashes of varying proportions. By no means is this a power that can ward off encroachment by the other branches. The remarkable thing is that, for the most part, Congress has rarely taken any of the retaliatory acts it could. Not that there haven t been serious conflicts. They began almost as soon as there were contested elections for president. In 1801, for example, passions were at a boiling point between the Adams Federalists and the Jeffersonian Republicans. Each side believed fervently that the other side s acts and policies would bring to an end the grand experiment that was the United States. The Republicans defeated John Adams and other Federalists in 1800, but before leaving office, President Adams and the largely Federalist Congress nominated and confirmed a number of justices of the peace for the District of Columbia. They also established 16 new federal judgeships, which they filled with Federalist sympathizers. The new Secretary of State, James Madison, refused to deliver the commissions to the new justices of the peace, although their commissions had been duly signed by President Adams. The new Congress disestablished the new judgeships the first example of court unpacking. The Federalists took both cases to court in the case of the justices of the peace, they sought a writ of mandamus directing Madison to deliver the commissions. This case, involving men appointed to positions for five-year terms, became one of the most famous decisions in our history, Marbury v. Madison. The new Chief Justice, John Marshall, wrote for the Court that Madison had no choice but to take the ministerial act of delivering the commissions, which had gone into effect once they were signed by President Adams. He used the case to declare that, [i]t is, emphatically, the province and duty of the judicial department, to say what the law is. The other case was arguably of more importance. After all, it involved judges who had been deprived of their anticipated life tenure when their judgeships were

3 disestablished. Oddly enough, the Supreme Court never mentioned that question when it decided the case, although the lawyers had argued it at length. Was this the better part of wisdom? Was it an attempt to defuse the political tension of the times? Did the Court think that the disestablishment of the courts was not a true threat to judicial independence? We ll never know. This was not the last of inter-branch conflict. With the rise of Jacksonian Democracy in the 1820s-1830s, many proposals were floated to change the nature of the courts, to make the judges elected, for example, or to prevent the Supreme Court from hearing appeals from state courts. President Jackson encouraged the groundswell of majoritarian democracy, taking public stands of defiance to the Court s rulings. On one occasion, he declared that [t]he opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges and on that point the President is independent of both. In fact, however, he never actually defied any actual order of the Court, as the state of Georgia did in cases involving the Cherokee Indians. During the pre-civil War period, the Republican abolitionists denounced the Court and its decisions on slavery, particularly the infamous Dred Scott opinions. When Lincoln was in office, the Republican Congress increased the size of the Supreme Court to 10; after the war, when Democrat Andrew Johnson was in office, Congress reduced it to seven so that Johnson could not make any appointments to vacated positions, and increased it to nine once Republican Ulysses Grant became President. At the same time, Congress increased the jurisdiction of the federal courts to enforce the new laws of the Reconstruction. In the 1930s, the New Deal provoked such hostility between the judiciary and the other two branches that President Roosevelt proposed legislation to increase the size of the Court. The proposal met strong resistance, even from persons generally in favor of Roosevelt s program, and was never adopted. The last intense spurt of antagonism toward the Supreme Court came during the 1950s and 60s. It was directed against Earl Warren s Court and its desegregation decision in particular. It was a boon to the sellers of billboards; almost every highway was bedecked with a sign urging Congress to impeach Warren. There may be particular reasons why these clashes never grew into serious challenges to the judiciary Jackson s bête noire, John Marshall, died in 1835, taking that thorn out of the President s side; after the Civil War the Republicans needed the courts to carry out their plans for Reconstruction; in the 1930s, one of the justices on the Supreme Court changed course at about the same time that Roosevelt s court-packing proposal went to Congress. (This act gave rise to the famous observation that it was the the switch in time that saved nine. ) Earl Warren was replaced by Warren Burger. More likely, the reasons lie embedded in custom, tradition and well-established norms of judicial independence. As one commentator wrote at the time of Roosevelt s court packing proposals, a dominant Executive and congressional majority could always take steps to weaken the judiciary, but the very fact that they have not done so, established an inhibition upon the use of this method... The maintenance of the custom

4 of the Constitution is essential to a stable Government under which people are able to plan their lives and direct their actions. For their part, the federal courts developed many devices that helped them avoid conflict. When President Washington asked the Supreme Court to give its opinion on a particular treaty, the Court rejected the request. Ever since then, the courts have followed a policy of refusing to hear matters that did not present a case or controversy. This is why no one can sue in federal court, for example, without standing, that is, without an actual injury. That means that no matter how strong your opinions are about the BP spill in the Gulf of Mexico, you can t sue BP unless you can show that you have suffered an actual injury from the spill. Another rule federal courts must follow applies when they hear cases that present both constitutional and statutory questions. They must take up the statutory questions first and not address the constitutional ones unless the case cannot be resolved otherwise. In addition, courts decline to decide political questions, such as challenges to matters involving the workings of the legislature or the executive branch. The idea is that the courts should recognize the limits to the powers of an unelected, unrepresentative judiciary. Increased judicial accountability has been another contributor to the easing of tensions among the branches. Starting at the end of the 19th century, Congress enacted legislation creating a system of intermediate courts of appeals. Up until then, the lower courts had included both circuit and district courts. The district courts were staffed by a district judge; the circuit courts were staffed, at least in theory, by a district judge and a Supreme Court justice assigned to a particular circuit. Both courts were trial courts, although the circuit courts could hear appeals from the district courts if the amount in controversy was more than $50. This change to a new system was long overdue. The burdens of riding circuit were intolerable for the Supreme Court justices, especially as the number of circuits increased with the expansion of the country and their own case loads. For years, the justices had stopped going out to the circuits, leaving the district courts and the circuit courts to be presided over by a single district judge. The creation of intermediate courts of appeals in 1891 was promoted by its backers as a means of reining in out-of-control trial judges, which it did. Under the new system, the decisions of district judges were subject to scrutiny by a regional court of appeals; the appellate judges sat in panels of three and could rule only by majority of the panel. Accountability increased exponentially. In 1922, Congress authorized the judiciary to govern itself by establishing a National Conference of Senior Circuit Judges, which became what is now the Judicial Conference of the United States. In 1934, Congress gave the judiciary authority to promulgate its own rules of procedure, subject to Congressional approval. In 1939, Congress transferred budgetary control of the courts from the Department of Justice and

5 created the Administrative Office of the United States, which made it easier for the courts to administer themselves. Thirty years later, it authorized the creation of the Federal Judicial Center. Once the Judicial Conference was established, the judges assumed increased responsibility for governing themselves and the entire federal court system. With budgetary authority and an administrative arm, they could manage their expenditures, their personnel, planning, equipment, security needs and general oversight of the courts. With the new Federal Judicial Center, they had a research and educational arm that could help the Judicial Conference with long range planning, could provide training and continuing education for judges and undertake research to help judges handle different kinds of cases and manage problems that arose in court administration. All of these developments have benefited the courts the long engrained custom and tradition that supports the idea of an independent judiciary, the many ways in which the courts have tried to defer to the other branches in ways that reduce friction and the courts increased opportunities for self-governance. But important as these things have been, they have not removed all of the discord between the courts and the other two branches. Much as we hate to admit it, few in Congress have much love for judges. In a 2006 speech to the American Bar Association, one Republican member of Congress told of soliciting her colleagues to join her in co-sponsoring a bill to give judges a pay increase that would make up for six of the nine cost of living increases they had been denied in previous years. She met with little enthusiasm. Some of the responses were: Not until those judges leave the legislating to Congress. They aren t getting theirs until we get ours. Why should they automatically get a raise when their jobs are safe, while every two years we have to fight to get re-elected and keep our jobs. Their rulings are outrageous. Or, I just don t care. Legislators envision self-righteous and self-glorifying judges acting as the super ego of another branch to keep it within its authorized limits. A scenario comes to mind of an elegant dinner, much fussed over in advance. All menu, napkin colors, flowers, china has been agreed upon. The night of the dinner arrives: the candles are lighted, the doors are opened but wait! In marches an uninvited guest, who takes a hard look at the table, the gleaming silver and starched linens, and whips the tablecloth out from under the feast. The high-handedness of this, the nerve! Who would not react negatively when an outsider undoes the hard work of others? Why then should we be surprised if legislators react negatively when an unelected judge calls a piece of legislation unconstitutional, undoing the efforts of many people? Certainly a congressional act takes far more work than a fancy dinner. One can imagine legislators thinking to themselves or out loud that the judge didn t do the heavy lifting to get the legislation approved; she wasn t there for the midnight sessions; she wasn t corralling party members to persuade them of the

6 value of this particular piece of legislation; she doesn t know the compromises that were necessary. At such times, it may be hard even for savvy members of Congress to remember that the judge is simply carrying out her duty, not flaunting her power. She did not pick the dispute; it came to her randomly as all cases do and her oath of office requires her to decide it. Unlike a legislator, she cannot table the issue. And, as everyone should keep in mind, the judge s decision is not unconstrained. She is bound by precedent, the terms of the Constitution, statutes, procedural rules, the factual record and legal principles. And, unless the judge is a member of the Supreme Court, she does not have the last word on the constitutionality of any legislation. Her power to overturn a statute is heavily circumscribed by the availability of appellate review by at least three judges of the court of appeals and perhaps by the nine justices of the Supreme Court. As I said, this power to rule on the constitutionality of legislation does little to resist encroachment by the other branches; it invites encroachment. It makes the courts dealings with Congress that much more difficult, as the congressional comments show. Judges have learned that the only way to navigate the halls of Congress is deferentially, with full recognition of the strains between the two branches and an appreciation for the pressures upon the legislature. It remains the case that maintaining the delicate balance among the branches and between the courts and Congress in particular is a matter of trial and error, advance and retreat, success and failure, overtures and rejection, incremental steps and small adjustments. Perhaps, after all, this is exactly what the framers of the Constitution had in mind.

An Independent Judiciary

CONSTITUTIONAL RIGHTS FOUNDATION Bill of Rights in Action Spring 1998 (14:2) An Independent Judiciary One hundred years ago, a spirit of reform swept America. Led by the progressives, people who believed