For more than two hundred years, judicial review has served as the foundation of the American judicial branch. And yet, more than two centuries later, scholars and political figures continue to debate its proper place in American government. Recently, Presidential candidate Newt Gingrich waded into this debate, calling for members of Congress and the President to take stronger actions to check and balance what he termed “judicial supremacy.” Cries for a weakened judicial branch and insistence on the importance of reining in activist judges are becoming commonplace throughout American history.
As Gingrich and many before him have realized, the President and Congress have much latitude when it comes to influencing the American judicial branch, including the United States Supreme Court. American history has witnessed numerous examples of such efforts. These include both constitutionally impermissible actions—e.g., Nixon’s threat to ignore the Supreme Court’s decision over the release of the Watergate tapes unless the opinion was unanimous —and actions that are constitutionally permissible but perhaps normatively objectionable—e.g., President Roosevelt’s infamous court-packing plan. Importantly, solely because an action is constitutionally permissible does not automatically render it normatively desirable as well. Yes, the American judiciary’s independence could be significantly weakened without violating the Constitution, but what would such a subservient judiciary mean for American government? And, more importantly, is that the America that the Framers designed or in which citizens would want to live?
Plainly, more is required. We must, then, analyze prospective Presidential and congressional actions against the judiciary along a normative spectrum, recognizing that determining whether an action is constitutionally permissible does not end the inquiry. Rather, we need a basis upon which to determine whether a Presidential or congressional action against the Court is normatively acceptable as well.
In this Article, I propose a framework for determining whether an action by the President or a member of Congress that undermines federal judicial authority would comport with the normative values embodied by our system of government. Part I of this Article begins by examining Newt Gingrich’s position paper outlining his argument for a more modest role for the judicial branch. Then I will analyze others who—like Gingrich—have called for a significantly diminished role for the judiciary under the theory of “departmentalism.” In contrast to Gingrich and these former elected officials, Part II describes the traditional concept of judicial review, tracing its origin and the Framers’ perspectives on its place in American government. Having identified the constitutional boundaries for actions from the President and members of Congress, in Part III of this Article, I offer a spectrum of actions along a normative scale, from the constitutionally and normatively acceptable, to the constitutionally permissible but normatively undesirable, to the constitutionally and normatively objectionable. Part IV illustrates where Gingrich’s proposals and historical examples of Presidents, members of Congress, and other political figures, whose policies proposed to weaken the power of America’s judges, fall along the Constitutional Procedural Principle scale.
- Separation of Powers,
- Judicial Review,
- Judicial Independence
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