Shortly explain what you understood and analysis what you read. critical thinking.

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Shortly explain what you understood and analysis what you read. critical thinking.

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Judicial Independence and the Reality of Political Power Author(s): Gerald N. Rosenberg Source: The Review of Politics, Vol. 54, No. 3, Special Issue on Public Law (Summer, 1992), pp. 369-398 Published by: Cambridge University Press for the University of Notre Dame du lac on behalf of Review of Politics Stable URL: Accessed: 03-07-2018 14:20 UTC REFERENCES Linked references are available on JSTOR for this article: You may need to log in to JSTOR to access the linked references. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at Cambridge University Press, University of Notre Dame du lac on behalf of Review of Politics are collaborating with JSTOR to digitize, preserve and extend access to The Review of Politics This content downloaded from on Tue, 03 Jul 2018 14:20:12 UTC All use subject to Judicial Independence and the Reality of Political Power Gerald N. Rosenberg Defining judicial independence as the ability of courts to make decisions in the short term without regard for the preferences of officeholders, this article empirically examines the conditions under which judicial independence is and is not likely to be found. Nine periods of intense congressional hostility to the Supreme Court are identified and Court reactions are chartered alonga continuum from pure independence to total subservience. Examination of the historical record highlights five key factors related to independence and shows that judicial independence existed in only three of the periods. In the remaining six periods, the Court either refrained from hearing certain cases, issued opinions more in line with congressional preferences, or reversed itself. The article rejects the hypothesis of judicial independence, concluding that in times of congressional opposition to the Court, only under special conditions identified in the analysis will it retain its independence. Introduction The independence of the federal judiciary from political con- trol is a hallmark of the American legal system. Institutiona separate and distinct from the other branches of the federal gov ernment, the judiciary is electorally unaccountable. Judges a justices are insulated from the political process through constitu tional guarantees of life appointments and salaries that may not diminished during their terms of office. In theory, this indepen dence, plus the power to hold legislative and executive acts u constitutional, allows courts to "stand as the ultimate guardians our fundamental rights."' To laypeople, lawyers, and social sc entists alike, judicial independence is central to American go ernment. I gratefully acknowledge helpful and extensive comments on an earlier dr from John Mark Hansen and Cass Sunstein of the University of Chicago Rogers Smith and Stephen Carter of Yale University. 1. Charles A. Horsky, "Law Day: Some Reflections on Current Proposals Curtail the Supreme Court," Minnesota Law Review 42 (1958): 1105, 1111. 369 This content downloaded from on Tue, 03 Jul 2018 14:20:12 UTC All use subject to 370 THE REVIEW OF POLITICS While many social scientists are too "sophistic to putmuch stock in all but the weakest notions o dence, the entire field of constitutional scholars Supporters and critics of judicial activism rely h notion of judicial independence. For proponent ism, independence allows courts to avoid the pre sightedness to which elected officials som Electorally unaccountable and institutionally i judges can preserve rights under attack. An activ sible in a democracy, then, precisely because it i independence allows it to act to uphold rights majorities are paralyzed by prejudice. A nonin court would simply reinforce the discrimination the other branches. On the other hand, critics o assume judicial independence as well. They ar sometimes are carried away by the personal and their members. Acting like "super-legislatures," policy decisions without the input of the democr occurs because courts are independent, free o process constraints that limit elected officials. A activist court would not be dangerous becaus against the wishes of the other branches. Indeed the countermajoritarian nature of judicial revi meaningful judicial independence. Both suppor judicial activism assume judicial independence Constitutional structures, patterns of beli assumptions of much constitutional scholarsh accurately reflect actual power relations. To assu pendence on these grounds is to overlook prac presence of power relations can only be judge assertion of judicial independence must be tested article attempts the task. Although the reader may have a gut-level sens of judicial independence, some elaboration is re independence I mean the Supreme Court's relat ward understanding of "judges who are free fro nation by other branches of government."2 If th 2. U.S. v. Will, 449 U.S. 200, 218 (1980). To the extent t This content downloaded from on Tue, 03 Jul 2018 14:20:12 UTC All use subject to JUDICIAL INDEPENDENCE 371 pendent of the executive and the legislature, must at least mean that court decisions are reac regard for the political preferences of members of As Judge Kaufman put it, "the constitutional p fairly in accordance with law can be exercised ef deliberative process of the courts is free from by the President or Congress."3 The judiciary is to the extent its decision-making is free from preferences of elected officials. In a sense, though, this claims too much. Me dence does not require the hermetic sealing off from another. There is overlap between and branches of the federal government. The Congr dent, for example, continually cajole and coerce that are entirely appropriate to independent larly, courts function under laws enacted and ex branches. The very questions courts often ente the other branches. Also, judges, like elected human beings, have policy preferences on so independence, then, does not require judges world around them. It does require that thei fected, or at least minimally affected, by the s positions among members of the other branche This article tests the hypothesis that courts that they reach decisions without regard to politically accountable officials. The null hypot no judicial independence, that courts do take into account in reaching decisions. This form only a first step. Treating court decisions as eith preferences (judicial independence) or taking (no judicial independence) creates an on/off, that may miss much actual practice. It may be m court decisions as pictured in Figure I, ranging from total lack of regard for political pref subservience to them. mediated through executive and legislative action, it is subsumed under the definition. 3. Irving R Kaufman, 'The Essence of Judicial Independence," Columbia Law Review 80 (1980): 671, 691, emphasis added. This content downloaded from on Tue, 03 Jul 2018 14:20:12 UTC All use subject to 372 THE REVIEW OF POLITICS FIGURE I VARIATIONS IN THE EXTENT OF JUDICIAL INDEPENDENCE INDEPENDENCE < > SUBSERVIENCE Lack of Regard Increasing Re for political prefer- for political preferences of Members of S 1 o w Stop de- Back-off other branches- d o w n velop- line other branches--Re- Continue develop- de v e1- ment of verse line ment of case line opment line of line Conceiving of judicial independence in this way allows for a more discriminating inquiry into the nature of judicial independence. Numerous studies have attempted to conceptualize and measure judicial independence. In these studies, evidence is presented that suggests that courts act congruently with the wishes of a group or party which exerts pressure outside the confines of cases.4 But how and why this occurs is left unspecified. The links between outside interests and court decisions are unclear.5 4. See, for example, Morton J. Horwitz, The Transformation of American Law (Cambridge, MA: Harvard University Press, 1977); Thomas R. Marshall, Public Opinion and the Supreme Court (Boston: Unwin Hyman, 1989); Note, "Government Litigation in the Supreme Court: The Roles of the Solicitor General," Yale Law Journal 78 (1969): 428; Steven Puro, "The United States as Amicus Curiae," in Courts, Law, andJudicial Processes, ed. S. Sidney Ulmer (New York: Free Press, 1981); Robert Scigliano, The Supreme Court and the Presidency (New York: Free Press, 1971); Martin Shapiro, "The Supreme Court: From Warren to Burger," in The New American Political System, ed. Anthony King (Washington, D.C.: American Enterprise Institute, 1978); S. Sidney Ulmer and David Willison, "The Solicitor General of the United States as Amicus Curiae in the U.S. Supreme Court, 1969-1983 Terms" (Paper presented at the annual meeting of the American Political Science Association, New Orleans, 1985). 5. This is especially the case with electoral realignments. It has been argued that attempts to curb the Court are due to the periodic electoral realignments that sweep the United States. However, since their precise meaning and identity is unclear, and since this claim reduces to one of electoral pressure, it seems more This content downloaded from on Tue, 03 Jul 2018 14:20:12 UTC All use subject to JUDICIAL INDEPENDENCE 373 I test the hypothesis of judicial independence periods during which congressional hostility has been strong, and analyzing Supreme Cour then. Did the Court further or maintain the po dered hostility? Did it back off from them? O examining a number of such periods of cong patterns of Court responses may appear. The attentive reader will have noticed tha political hostility with congressional hostility on the U.S. Supreme Court. Congressional ho clearly not the only measure of judicial antipath measure of political hostility because Congres tional power to change certain institutional aspe judiciary (described, infra). While others can Congress can affect the Court in direct ways. A hostility receives nationwide media coverage. gressional hostility does not ignore the role Clearly, by commanding media coverage, an implement Court decisions, the president can Without substantial congressional support, howe risks alienating both of the other branches. Fina Supreme Court makes good sense because th Congress and the presidency, while not the only kind in the American political system, is th important one. Sitting atop a hierarchical struct most far-reaching of judicial opinions. If the Sup maintain its independence when threatened, pendence has little meaning. Identifying the preferences of elected off facing the courts is not simple. When are there independence? While legislation aimed at for decide cases in a certain way would be the ideal sensible to focus on the broader indicator. Focusing dire elected officials includes realigning periods but is not lim 6. In addition, the president could order the army to a as was done by President Lincoln. Similarly, presidents, like and 1960s over the issue of desegregation, can order gover ignore Court orders. But when this stage is reached, the government. This content downloaded from on Tue, 03 Jul 2018 14:20:12 UTC All use subject to 374 THE REVIEW OF POLITICS have rarely been enacted. Thus, one must rely cators such as the number of bills introduc influencing court decisions and the strength of However, members of Congress often act ou motives, from the furtherance of policy pre claiming, publicity-seeking, turf-protecting, et bills introduced and the number of opponent capture the whole picture. The intensity beh important as well. Although intensity is difficu important to distinguish between pro forma ac tain constituencies and serious attempts to infl comes. Attention should also be paid to whether or supporters can coalesce to increase their elections may signal elected officials about t support. Where the role of the Court is an outcome can either embolden or deter Court op factors, the number of bills introduced, the num their supporters, the intensity of the suppor coalitions forming, and the results of elections, preferences. While several can be quantified eas Their presence and relative strength will be consensus of students of the period and by refe records. In examining threats to judicial independence, these five indi- cators will be the focus. The judicial independence hypothesis predicts that they are irrelevant to judicial decisions. In contrast, the null hypothesis suggests that the greater the strength of the indicators, the greater the threat to the Court, and the more subservient it will be. It is important to note that this approach focuses on attacks on the Court over the short term. There are strong reasons for such an approach. First, given the difficulty social scientists have in assessing power relations, independence can best be judged when actual threats to it can be identified. When there is little or no hostility to the Court, it cannot be determined whether the Court is acting independently or simply going along with the preferences of the other branches. However, when Court action creates political opposition, independence is brought to the limelight. Second, a classic defense of judicial independence points to the ability of the Court to check the political system in the short term, allowing for This content downloaded from on Tue, 03 Jul 2018 14:20:12 UTC All use subject to JUDICIAL INDEPENDENCE 375 a "sober second thought."7 The Court, it is cl from the sway of short-sighted passions a temporary legislative majorities by checking long enough for calmer heads to prevail. Thi a focus on the short term. Liberties need pro ened and the Court can only play this prot over the short term. There is no substanti independence if courts only invalidate legisla their enactment, when the issues and passi have passed and when the damage to liberties Finally, it is dear that through the appointm lacks independence over the long term. It might be contended, however, that any congressional hostility to the Court and Cour effects. In particular, it might be suggested backs away from major decisions and periods of congressional action. If so, any correlat tivism, congressional hostility, and Court direction would not be meaningful. Happily, three kinds of examples demonstrate. Fir congressional hostility to the Court are mark ism. At times, it has been the fear of activis continued support for a given line of reason than activism per se that has ignited congr the Court. Second, there are many instan developed a new line of reasoning in a genera and stuck to it for decades. Examples mig due process, the defense of voting rights, and the procedural rights of criminal defenda shown later, there are even periods of congre Court during which the Court held fast to it reasoning. It is unlikely that any relation congressional hostility to the Court and Co ous. There are, however, some difficulties with thi Assuming periods of congressional hostility to the identified, it is only with great care that Court de 7. HarlanF. Stone, "'heComnuonLaw in theUnitedStates," Har 50 (1936): 4, 25. This content downloaded from on Tue, 03 Jul 2018 14:20:12 UTC All use subject to 376 THE REVIEW OF POLITICS characterized. Broad generalizations can do vi distinctions and artful legal reasoning. Yet, w distinguished by lawyers, the bottom line politic react, and the political ramifications of decisions makes sense, then, if the data warrant it, to spea or the Court's backing down. To the extent that c can be identified, these characterizations can with such characterizations, the analysis of h hostility affects decisions is not straightforward. causation and such a showing will not demo congressional action caused the shift in Court then, the analysis will show that when there hostility, the Court conforms to congressional p could be the case that both the Court and the Co to a third force, perhaps public opinion, and tha have modified its position regardless of congress means that the strongest conclusion this approac data support it) is that there is strong reason Court responds to congressional hostility. Bu congressional hostility is the causal agent, the would be that judicial independence is weak o times of heightened political passion. Attacks on Judicial Independence Attacking the Court is an old congressional back to the early years of the nation. Murphy r close of Marshall's chief justiceship nearly all of to dominate the Court had been tried.8 Generally are ten types of proposals that have been made t of the Court or demonstrate congressional disple 8. Walter F. Murphy, Congress and the Court (Chicago: U Press, 1962), p. 63. 9. See, generally, Comment, "Congress Versus the Co Arsenal," Villanova Law Review 10 (1965): 347; Maurice S. C Proposals to Limit or Deny the Power of Judicial Review by the United States," 2 pts. Indiana Law Journal 4 (1929): 387 "Court-Curbing Proposals in Congress," Notre Dame Lawy mas Halper, "Supreme Court Responses to Congressional This content downloaded from on Tue, 03 Jul 2018 14:20:12 UTC All use subject to JUDICIAL INDEPENDENCE 377 dude: (1) using the Senate's confirmation power t types of judges; (2) enacting constitutional amendm decisions or change Court structure or procedure; ( (4) withdrawing Court jurisdiction over certain subje the selection and removalprocess; (6) requiring extraordi for declarations of unconstitutionality; (7) allowing Supreme Court to a more "representative" tribunal; power of judicial review; (9) slashing the budget; (10) of the Court. The above list is not exclusive. Rather, kinds of actions that Congress has utilized over the the independence of the Court. While several of th serious questions of constitutionality, they have be and seriously debated. Congress has acted as if it dominate the Court. Court-attacking bills are not merely a histori While there has been little serious talk recently removing the power of judicial review or of requir more than five justices for holdings of unconsti other sorts of proposals have appeared. The late 1960s saw a flurry of Court-curbing bills and b introduced in the 1970s and early 1980s withdrawin jurisdiction over substantive areas such as school pr and busing. A resourceful Congress with a sense of belief that the Court is wrong can act. In order to test the strength of judicial indepen sional attempts to limit the power and independenc must be identified. Such attempts can be identified the following definition of attacks on the Court: legislation introduced in the Congress having as its pu either explicit or implicit, Court reversal of a decision or or Court abstention from future decisions of a given kind the structure or functioning of the Court to produce a part outcome.10 Tactics," Drake Law Review 19 (1970): 292. 10. This definition combines parts of several offered by "Congressional Responses to Supreme Court Rulings: The Int Politics," Journal of Public Law 14 (1965). 377, 382. See, also, "Impartiality, Separation of Powers, an ...
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School: University of Virginia



The Review of Politics
Institutional Affiliation



The paper is a review on how politics interferes with the judicial processes. The
judiciary is a system that is independent of all the other federal operations. The purpose of the
judiciary is to act as an oversight and determiner of the disputes tha...

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