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. …