Judicial Autonomy and the Commerce Clause in U.S. Law

Introduction

The executive, legislature, and judiciary are the three branches of the national government in the United States. Speaking on Law Day in 2003, President Bush highlighted the independence of the judiciary as an important pillar of the administrative system. He said, "Our constitutional system of separation of powers places careful limits on the powers of judges and separates the responsibilities of making laws and interpreting laws between the Legislative and Judicial branches. Independent Federal judges have the autonomy to make decisions and interpret the law unfettered by outside influences. In this way, we are assured that our laws will be interpreted justly and applied with uniformity."

The judiciary has achieved its present autonomy through careful use of its powers and by diligently guarding its independence. Yet the judiciary cannot avoid being embroiled in political squabbles that have threatened its independence in the past and continue to do so today.

On June 29, 2006, the Supreme Court struck down the military commissions established by President Bush to try suspected Al-Qaeda terrorists. The Court determined that the commissions outlined by President Bush were neither authorized by federal law nor by military necessity. In doing so, the justices had to brush aside the executive's pleas not to undermine the commander-in-chief during wartime. The process of approving judicial appointments has also become a political battleground, where a nominee's views on major ideological questions can threaten to derail Senate confirmation.

In the 1800s, when the boundaries of authority for the various arms of government were being established, the courts also asserted themselves in areas not previously considered within their jurisdiction. In the landmark case of Marbury v. Madison (1803), Chief Justice Marshall established that the courts possessed the power of judicial review. He asserted that any statute violating the Constitution could not stand, and that the Supreme Court had a duty to reject any such statute. This decision gave the courts the power to undertake judicial review of Acts of Congress and of executive and administrative orders. The power to overrule Congress was unique to the United States at that time; even in the British legal system, judges could not overrule Acts of Parliament on constitutional grounds.

By way of background, in the final hours of his administration President John Adams had appointed William Marbury as a justice of the peace in the District of Columbia. Marbury did not receive his appointment papers before Adams left office. The new president, Thomas Jefferson, ordered Secretary of State James Madison not to deliver the appointment. Marbury sued, citing the Judiciary Act of 1789, which had given the Supreme Court the power to order government officials to act. In his majority opinion, Chief Justice Marshall agreed that Marbury had a right to the appointment, but ruled that the Supreme Court did not have the power to order Madison to deliver it. The relevant section of the Judiciary Act, he determined, granted the Supreme Court a power it did not possess under the Constitution. Since the Constitution is the supreme law of the land, any statute that violated it could not stand, and it was the Supreme Court's duty to overturn such a statute. In giving up one power, Marshall carved out for the Court a far greater one — the power of judicial review.

Roosevelt's New Deal Plan and the Courts

The autonomy of the courts and the establishment of clear limits on the authority of each branch of government has been built over more than two hundred years. The process can be traced to Chief Justice Marshall's tenure, but it was President Roosevelt's drive to expedite his New Deal programs that provided the decisive impetus for establishing firm boundaries between the branches.

Democratic President Franklin Roosevelt was deeply frustrated by the courts striking down many of his New Deal Acts. He believed that conservative judges were obstructing his plans due to their attachment to outdated views. He therefore decided to "pack" the Court with his own nominees. Roosevelt sought approval from Congress for a bill that would have allowed him to nominate an additional judge for each sitting justice who was over seventy years of age. Since six of the nine Supreme Court justices at that time were over seventy, the bill would have allowed Roosevelt to nominate six additional justices.

Roosevelt offered a rationale for his proposal, arguing that the federal judiciary was insufficient to handle the volume of cases before it. He pointed out that in the preceding year the Court had denied petitions for review in 695 of the 803 cases presented by non-governmental litigants, questioning whether full justice could be achieved when a court was forced, by sheer necessity, to decline 87 percent of cases without explanation. He attributed this failure to the advanced age of the justices, contending that older judges, viewing the present through lenses fitted for an earlier generation, tended to avoid examining complex and changing conditions.

The Internalist Approach

Roosevelt was enormously popular among the general public, but his plan was widely viewed as an attack on the autonomy of the courts. It drew fierce opposition and was defeated by a bipartisan vote in Congress. The defeat of Roosevelt's "pack the court" plan demonstrated how strongly the American people valued judicial independence. Around the same time, the Court itself underwent a remarkable shift, with observers describing its decisions as reflecting a "180-degree jurisprudential turn" (Hilbank, 1999). Chief Justice Hughes strongly denied any connection between this shift and the packing plan, but the change was so pronounced that legal historians have since sought to explain it — variously attributing it to internal changes in legal doctrine and to external changes in ideas about law and society during the late nineteenth and early twentieth centuries.

Barry Cushman and Richard Friedman are considered the principal advocates of the internalist approach, arguing that the constitutional changes of the New Deal era resulted from doctrinal and intellectual causes. Cushman believes the changes were driven by concerns internal to the workings of the Court and to jurisprudence itself, though they were also influenced by the socioeconomic transformations of that period. Specifically, Cushman identifies three factors in jurisprudential philosophy that shaped the internal changes: first, a republican fear of centralized authority; second, the division of law into public and private spheres in order to prevent private interests from corrupting legislation; and third, a tradition of Lockean property rights — the view that rights in property are the foundation of human freedom and that government exists to protect them and to preserve public order. Cushman concludes that the erosion of the public/private distinction was the primary cause of the major constitutional shifts of the New Deal period.

The internalist approach appears to rest on more solid footing, because it recognizes that the justices were adapting their stance to new political and economic realities through changes that were internal to the Court's own reasoning and doctrine. G. Edward White (2005) supports this view, pointing out that an analysis of decisions by Justices Hughes, Roberts, Cardozo, and Stone across the entire decade of the 1930s shows that they were working to develop a doctrinal posture capable of accommodating some of the regulatory legislation of the New Deal. This gradual, consistent evolution in their positions favors the internalist explanation.