Judicial Autonomy and the Law: U.S. Courts and Separation of Powers

Introduction

The executive, legislature, and judiciary are the three branches of the national government in the United States. Speaking on the occasion of Law Day 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 diligent guarding of its independence. Yet the judiciary cannot avoid being embroiled in the 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 justified by military necessity. In doing so, the justices had to set aside the executive branch's pleas not to undermine the commander-in-chief during wartime. Similarly, the process of approving judicial appointments has become a political football in which candidates' views on major ideological questions threaten to derail their confirmation by Congress.

In the 1800s, when the boundaries of authority for the various arms of government were being established, the courts also asserted themselves to determine whether they were entitled to a say in matters 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. Later decisions further extended the courts' 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.

The background to Marbury v. Madison is instructive. 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. Unfortunately, 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 to obtain it, citing the Judiciary Act of 1789, which had granted the Supreme Court the power to order judges and government officials to act. In his majority opinion, Marshall agreed that Marbury had a right to the appointment but ruled that the Supreme Court lacked the power to order Madison to deliver it. The relevant section of the Judiciary Act, he determined, purported to give the Supreme Court a power it did not possess under the Constitution. Because the Constitution was the supreme law of the land, Marshall reasoned, any statute that violated it could not stand, and it was the duty of the Supreme Court to overturn the statute. In relinquishing the narrower power granted by the Judiciary Act, Marshall secured 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 limits on the authority of each arm of government have been built up over more than two hundred years. The process can be traced to Chief Justice Marshall's tenure, but it was President Roosevelt's determination to accelerate his New Deal programs that provided the decisive impetus for establishing clear boundaries between the branches.

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

Roosevelt offered a disingenuous public rationale for his proposal, one that would return to haunt him. He contended that "the personnel of the Federal judiciary is insufficient to meet the business before them," pointing out that in the preceding year the Court had denied petitions for certiorari in 695 of the 803 cases presented for review by non-governmental litigants. He attributed this backlog to the advanced age of the justices, arguing that "a lowered mental or physical vigor leads men to avoid an examination of complicated and changed conditions. Little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation; older men, assuming that the scene is the same as it was in the past, cease to explore or inquire into the present or the future" (Cushman, 1998).

Roosevelt was enormously popular with the 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 failure of the "pack the court" plan demonstrated how strongly the American people valued judicial independence. Around the same time, however, the Court itself underwent a dramatic change in its jurisprudential orientation — what observers described as a "180-degree jurisprudential turn" (Hilbank, 1999). Many attributed this shift directly to the pressure of Roosevelt's packing plan. The Chief Justice at the time, Justice Hughes, strongly denied any such connection, but the change was so pronounced that legal historians have since sought to explain it through both internal and external developments in legal and social thought during the late nineteenth and early twentieth centuries.

The Internalist Approach

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 a product of concerns internal to the workings of the Court and to jurisprudential philosophy, though they were also shaped in part by the broader socioeconomic transformations of the period.

Cushman identifies three factors in jurisprudential philosophy that drove internal change: first, a republican fear of centralized authority; second, the division of law into public and private spheres designed to prevent private interests from corrupting legislation; and third, a tradition of Lockean property rights — the view that property rights are the basis of human freedom and that government exists to protect them and to preserve public order — together with the related doctrine of freedom of contract. Cushman concludes that the collapse of the public/private distinction was the primary cause of the major constitutional changes of the New Deal period.