Scholars Examine the Interactions between Congress and the Courts
Miller, Mark C., Judicature
Scholars examine the interactions between Congress and the courts Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System, by J. Mitchell Pickerill. Duke University Press. 2004. 188 pages. $21.95.
Separation of Powers in Practice, by Tom Campbell. Stanford University Press. 2004. 233 pages. $21.95.
A exciting new wave of cutting-edge scholarship has emerged that examines the interactions between the courts and other institutions, including the U.S. Congress. This new scholarship often challenges simplistic notions of separation-of-powers theory in favor of a more nuanced concept of governance as a continual dialogue among the branches. Two new books by J. Mitchell Pickerill and Tom Campbell are fine examples of this new approach to analyzing the court's institutional relationships.
Too often scholars of the courts attempt to examine the judicial branch in isolation. Instead, the courts should be viewed as part of a larger system of government. While judicial decision making is far different from decision making in the more political branches, judicial decisions nonetheless often lead to reactions by members of Congress and other politicians. The interactions between and among the branches can lead to productive dialogues among the institutions of government on a variety of issues-dialogues that can have enormous effects on policy making in general and on some decisions in particular.
The court-Congress interplay
In Constitutional Deliberation in Congress, J. Mitchell Pickerill explores in large part the question of whether Congress considers judicial constitutional decisions in its deliberations. The author's short answer is noCongress often does not consider prior judicial decisions or even the issue of constitutionality before it enacts legislation. Drawing on a wide variety of sources, including interviews with members of Congress and their staff, Pickerill concludes that "constitutional issues are not priorities in Congress. Politics and policy dominate congressional decision making, and members of Congress do not systematically consider the constitutional authority for their actions" (p. 144).
On the other hand, Pickerill argues, opponents of specific legislation often raise issues of constitutionality, especially where the courts have already ruled on similar cases. In other words, Congress does pay attention to prior judicial decisions regarding the constitutionality of its actions, but the level of attention varies from issue to issue and from committee to committee. But Congress rarely, if ever, considers whether its actions are constitutional without prompting from prior judicial decisions in a specific issue area.
Pickerill has produced a very strong piece of careful and detailed political science scholarship, but the book is not perfect. Too often in his analysis, the author attempts to treat Congress as a monolith, instead of embracing the extreme complexity of the institution. Because his main focus is on questions of federalism arid jurisprudence, the author may have a skewed vision of how Congress actually considers court decisions and interacts with the courts. …