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

By Westerland, Chad | Justice System Journal, May 1, 2008 | Go to article overview

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


Westerland, Chad, Justice System Journal


When Courts and Congress Collide: The Struggle for Control of America's Judicial System, by Charles Gardner Geyh. Ann Arbor: University of Michigan Press, 2006. 344pp.

reviewed by Chad Westerland

Untangling the mechanisms behind the U.S. Constitution's system of separated powers is obviously central to understanding American political institutions, yet even with a vast array of scholarly work by historians, legal academics, and political scientists, many key elements of the separation of powers have not been fully explored. With When Courts and Congress Collide: The Struggle for Control of America's Judicial System, Charles Geyh has made a significant contribution by exploring the development and importance of judicial independence within a separation-of-powers framework.

Chapter 1 examines how the Constitution and the Judiciary Act of 1789 operate as sources for judicial independence. Geyh argues that the architects of both the Constitution and the Judiciary Act of 1789 unequivocally understood that the judiciary should be independent from the legislative and executive branches. For the delegates at the Constitutional Convention, removal from office or a reduction in salary had been two highly effective means of controlling the judiciary, and they responded directly with the good-behavior clause and the compensation clause. But beyond these two clauses and the judicial-power clause, no additional institutional mechanisms were considered to ensure independence. For Geyh, this is not evidence of a lack of commitment to the judiciary as an independent branch; rather, it reflects a lack of experience, foresight, and time by the delegates. Despite the commitment to the idea of judicial independence, the framers simply were not in a position to create a fully formed, independent judiciary. The Judiciary Act of 1789 is also seen by Geyh as a reflection of this early commitment to judicial independence. The goals were to create a unified, cohesive, and independent branch, and while the architects of the Judiciary Act may not have had fully formed notions of how to achieve this, the initial design of the federal judiciary still reflected the shared vision by the framers of an independent judicial branch.

Given separation of powers and the somewhat limited institutional foundations for judicial independence, conflict between Congress and the judiciary is not an especially surprising feature of American politics. Chapter 2 focuses on this periodic interbranch conflict, and in many ways, it is the central chapter of the book. Geyh's main argument throughout is that independence norms have been developed to supplement the formal constitutional protections, and that these norms are necessary protections that allow the federal judiciary to operate as an independent branch of government. Geyh identifies five periods of heightened conflict between Congress and the judiciary to demonstrate the development and the consequences of independence norms. The presence of these norms across the periods of conflict results in the limitation of available congressional retaliatory responses to the judiciary, in a nineteenth-century commitment to the general structure of the Judiciary Act of 1789, and in a twentieth-century commitment to allowing self-policing by the federal judiciary, with the exception of the Warren Court, which is the last period of conflict he identifies. Geyh presents a detailed historical account of the importance of independence norms during inter-branch conflict and concludes that independence norms not only have survived these serious attacks but also have strengthened as a result.

If we take as an example the Radical Republican control of Congress after the Civil War, which Geyh identifies as the third spike, we see that the legacy of Dred Scott was still very much on the minds of Congress and resulted in several well-known attacks on the judiciary. Congress reduced the number of justices on the Supreme Court rather than let Andrew Johnson name replacements and, of course, withdrew the Court's jurisdiction to determine the constitutionality of the Military Reconstruction Act. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.