Actors in the Judicial Process
The interactions and relationships between the federal courts and Congress are important for understanding the role of the judiciary in the larger American governmental system. While scholars have studied the courts and Congress separately, there are fewer efforts to examine how these two government institutions interact. As den Dulk and Pickerill have noted, “Treating the Court or Congress in isolation misconstrues the nature of inter-institutional lawmaking in the United States. The actions of each institution have important reciprocal effects; both contribute to the form and substance of law” (den Dulk and Pickerill 2003, 420). The chapter will explore these court-Congress interactions over three different historical periods: the late 1980s, the early 2000s, and today.
This chapter will examine the relationship between Congress and the federal courts from the perspectives of the House Judiciary Committee and the Senate Judiciary Committee, the two congressional committees that have jurisdiction over most court-related and legal matters. It is worth looking at court-Congress interactions through the lens of congressional committees because committees matter a great deal in Congress. As Woodrow Wilson in 1885 famously observed, “Congress in session is Congress on public exhibition, whilst Congress in its committee-rooms is Congress at work” (Wilson 1885). Comparing the interactions between the federal courts and the House and Senate Judiciary Committees respectively is important because, as Richard Fenno noted in his landmark study, “Congressional committees differ from one another. And House committees differ from Senate committees” (Fenno 1973, 280).
The relationships between the courts and Congress are especially important to study for students of judicial politics, “given the profound influence that the legislative branch of government has exerted on the very nature of the judicial branch” (Geyh 2006, 18). Congress working through its Judiciary Committees has the ultimate decision about how to structure the federal courts and their jurisdictions (the power to hear a case). Congress also decides how many judges will serve on each level of the federal judiciary, including the US Supreme Court. For example, in 1977, 1984, and 1990 Congress greatly expanded the number of judgeships on the US District Courts (the federal trial courts), suddenly giving the then president many more judicial nominations than his predecessors (see de Figueiredo and Tiller 1996, 443). Congress also sets the number of justices on the US Supreme Court, and during and after the Civil War, the Republican Congress altered that number to fit its political needs at the time (see Collins and Ringhand 2013, 18). By refusing to consider President Obama’s nomination of Judge Merrick Garland to the Supreme Court, in effect the Republican Senate reduced the number of justices on the Court to eight for almost a year. With the Supreme Court now having a clear conservative majority, some liberals are calling for an expansion of the size of the Supreme Court if liberals gain control of both houses of Congress and the White House (see, e.g., Otterbein 2020).
Congress also determines the boundaries of the US Courts of Appeals, occasionally redrawing those boundaries for workload or ideological reasons. For example, following the lead of its Judiciary Committees, Congress in 1980 split the old Fifth Circuit Court of Appeals and moved the states of Florida, Georgia, and Alabama to the new Eleventh Circuit for both political and management reasons (Barrow and Walker 1988). Today, many conservatives would like to split up the current Ninth Circuit because of its perceived liberal decisions. When Republicans controlled the House Judiciary Committee, that committee held various hearings over the years on this issue, as did the Senate Judiciary Committee (see, e.g., Bomboy 2017).
One of the routine points of interactions between the federal courts and the Congress involves the Senate’s role in the confirmation of appointees to the federal bench. The president appoints federal judges, while the Senate must confirm them. The House has no role in this process. Judicial confirmations are a very important point of interaction between the Senate Judiciary Committee and federal judges. As Bell has noted, “Presidents routinely fill more federal judgeships than any other office” (Bell 2002, 102).
Since 1939, most presidential nominees to the federal bench have faced confirmation hearings before the Senate Judiciary Committee before the nomination is considered by the full Senate (see Collins and Ringhand 2013, 1). Senators have often used these hearings as a mechanism to send signals to the potential judges about what past rulings they oppose and what kinds of future judicial decisions they would like to see. As Gerhardt explains, “Senators, and presidents, employ their authority over appointments to impress their constitutional views upon other institutions (and the public)” (Gerhardt 2000, xxvi). At the hearings, Senators may ask a lot of questions about the nominees’ views on judicial activism and other judicial philosophies. Thus, the Senators are trying to figure out how the nominees may rule on future controversies. Today, most judicial nominees refuse to give direct answers to these questions (Baker 2007, 108). In fact, the judicial confirmation process may affect future interactions between Congress and the courts. As Baker explains, “In recent years, justices of the Supreme Court have emerged badly battered from the polarized, partisan, and contentious confirmation process in the Senate, so it would not be surprising if they were to harbor lingering bitterness towards the politicians who subjected them to harsh and lengthy interrogation” (Baker 2007, 107).
Historical Institutionalism and Elite Interviewing
This chapter examines court-Congress interactions using a Historical Institutionalist analysis. In Historical Institutionalism, scholars explore how over time “institutional cultures, structures, rules, and norms constrain the choices and action of individuals when they serve in a political institution” (Miller 2015, 185). The assumption is that political institutions may develop new norms, traditions, and functions as they interact with other institutions and refine their institutional relationships (see Gillman and Clayton 1999, 6–7).
The Historical Institutionalism approach allows scholars to consider the big picture questions that more narrow studies often cannot address. As Pierson and Skocpol explain, “Historical-institutional scholars address big, substantive questions that are inherently of interest to broad publics as well as to fellow scholars” (Pierson and Skocpol 2002, 695). For our purposes, the big questions mean examining court-Congress interactions. These big-picture questions can tell us a lot about how institutional cultures and norms affect political decision-making in our governmental institutions. As these scholars continue, “Researching important issues in this way, historical institutionalists make visible and understandable the overarching contexts and interacting processes that shape and reshape [nations], politics, and public policymaking” (Pierson and Skocpol 2002, 693).
Another aspect of the Historical Institutional approach is that the researcher can easily shift levels of analysis. This chapter will begin with an overview of court-Congress interactions at the highest level of analysis, the full Congress, before moving to a lower level of analysis that focuses on the two Judiciary Committees and then a third level of analysis: the individual politicians who serve on these committees and their views of the federal courts.
In order to understand how institutional variables constrain the decisions made by legislators in Congress, I conducted elite interviews with people who served on or worked closely with the House Judiciary Committee and the Senate Judiciary Committee. These committees have the closest and most frequent interactions with the federal courts because they have jurisdiction over most legal and court-related matters. The Judiciary Committees also hold most of the constitutionally based hearings in Congress (Devins 2017, 750). As stated previously, the Senate Judiciary Committee also investigates and holds confirmation hearings for all federal judicial nominees at all three levels of the federal judiciary.
I interviewed US Representatives, legislative staff members in both the US House and the US Senate, federal judges, lobbyists familiar with the two committees, staff in think tanks that deal with Congress-court relationships, and academics who have studied judicial-legislative interactions. These semistructured interviews occurred in Washington, DC, over three different periods of time: calendar years 1989, 2006–7, and 2017–18. Some of these interviews were as short as fifteen minutes, but others lasted almost two hours. Instead of surveying the interviewees strictly for their opinions and then aggregating those views, these semistructured interviews were designed to elicit the interviewees’ expertise about the institutional culture of the two congressional committees and how the committees interacted with the federal courts. These interviews were more like in-depth conversations where the participants often provided key information before I even asked for it. For example, my interviewees told me that lawyer-legislators were the key to understanding the relationships between the federal courts and the Judiciary Committees, something I had not considered before I started my interviews.
This type of empirical elite interviewing does not involve formal hypothesis testing because I had no preconceived notions of what I would hear from my expert interviewees. As Richard Fenno stated in one of his landmark studies of Members of Congress, “Someone doing this kind of research is quite likely to have no crystallized idea of what he or she is looking for or what questions to ask when he or she starts” (Fenno 1978, 250). My analysis draws on these interviews; thus, the quotations from the interviews illustrate how the experts understand the institutional factors that constrain the decision-making of the individuals who serve on the House and Senate Judiciary Committees when they interact with the federal courts, both at the individual level of analysis and at the committee level of analysis. In his study of the Supreme Court’s certiorari decision-making, Perry states, “Elite interviewing is a well-developed tradition in social science.…Done well, it is particularly useful for developing general understandings of processes, and it highlights assumptions that can be tested empirically” (Perry 1991, 8). At various points in this chapter, I will cite important quotations from these various interviews.
Separation of Powers
We will begin at the highest level of analysis: the role of the branches of government in the American separation of powers system. Each branch of the federal government (executive, legislative, judicial) has its own duties and responsibilities, but each governmental institution is also subject to checks and balances from the other branches. Rubin calls this governmental system, “a network of interconnected institutions” (Rubin 2002, 61). Rarely can a single political institution make decisions without at least considering the perspectives of the others. Thus, Richard Neustadt has referred to this system as one of “separated institutions sharing powers” (Neustadt 1980, 26). And as Clark reminds us, “Separation of powers represents perhaps the most important contribution the American experiment has made to constitutional democracy throughout the world” (Clark 2011, 1).
In this complex separation of powers system, the relationships between the Congress (and its committees) and the federal courts are very important. These interactions are worth exploring because each institution needs the other. Martin notes that Congress and the courts have a relationship of “institutional interdependence” because “the Founders created a separation of powers system whereby no single institution could enact policy unilaterally” (Martin 2006, 4). The current constitutional relationship between these two governmental institutions also deserves attention. As Bailey, Maltzman, and Shipan conclude, “Whereas Congress’s relationship with the executive is spelled out in detail in the Constitution, the relationship between Congress and the judiciary was left by the founders to be defined by history. Since history is rarely tidy or consistent, the relationship that exists between the courts and Congress is as messy as the Constitution itself” (Bailey, Maltzman, and Shipan 2011, 835).
Some of the interactions between the courts and Congress are quite routine and sometimes even cooperative. For example, Congress often purposefully assumes that the courts will clarify vague legislative language (see Miller 1956; Lovell 2003, 5–7), and in their opinions, the courts may request that Congress act to fix a perceived legal problem (see Hausegger and Baum 1999). These routine interactions rarely lead to conflict between the institutions. As Pickerill has noted, “Those who expect a constitutional revolution, a constitutional moment, or other form of severe confrontation between the Court and Congress simply do not appreciate the more routine and typical type of interaction between the Court and Congress in the political process” (Pickerill 2004, 130). At other times, however, the interactions between Congress and the federal courts can become more conflictual.
One of the key differences between the courts and the other voices in the interinstitutional dialogue about governance is the fact that appellate courts including the US Supreme Court must justify their decisions using legal reasoning and legal analysis. Politicians in Congress are under no such constraints and can justify their decisions in purely political terms if they justify them at all. As Justice Kennedy has noted, the Supreme Court is “set apart from other branches of government because it speaks a different language from the political branches” (quoted in Perry 1999, 48).
In our separation of powers structure, at times Congress and the federal courts really do not understand each other very well. As one scholar has explained, “The judiciary seeks an environment respectful of its independence. Congress seeks a judicial system that faithfully construes the laws of the legislative branch and efficiently discharges justice” (quoted in Katzmann 1997, vii). Thus, the courts and Congress clearly have different institutional cultures, different institutional needs, and different institutional wills. As Judge Katzmann has argued, “Congress is largely oblivious of the well-being of the judiciary as an institution, and the judiciary often seems unaware of the critical nuances of the legislative process. But for occasional exceptions, each branch stands aloof from the other” (Katzmann 1988, 7).
Misunderstandings between Congress and the courts can therefore arise because the two institutions thus have very different approaches to policy making. As Judge Katzmann has concluded, “The study of judicial-congressional relations is rooted in the premise that the two branches lack appreciation of each other’s processes and problems, with unfortunate consequences for both and for policymaking more generally” (Katzmann 1988, 1). The policy-making process thus depends on these two institutions working together as much as possible. As Pickerill explains, “Lawmaking in our separated system is continuous, iterative, speculative, sequential, and declarative, and consequently each institution in our system must necessarily anticipate, interact with, and react to the actions of the other institutions” (Pickerill 2004, 4). These potential conflicts between Congress and the Supreme Court, as well as other federal courts, often receive the most attention from scholars and from the media.
It is quite common for various politicians to criticize specific court opinions with which they disagree. Legislators can be especially critical when the US Supreme Court declares an act of Congress to be unconstitutional and thus void. All regular courts in the United States have the power of judicial review, which is the ability to declare the actions of the Congress, the president, the bureaucracy, or the states to be unconstitutional. Although not specifically mentioned in the Constitution, the Supreme Court took this power of judicial review for itself in the landmark case of Marbury v. Madison (1803). However, most of the time the Court upholds the constitutionality of congressional laws. In his exhaustive study of Supreme Court cases from 1789 until 2018, Whittington found that over time the Court has upheld the constitutionality of federal statutes about three-fourths of the time (Whittington 2019, 25).
At times, Congress even attempts to overturn various federal court rulings. If the judicial decision is constitutionally based, then in theory a constitutional amendment is required to overturn the ruling. Recall that a constitutional amendment requires two-thirds of the US House, two-thirds of the US Senate, and three-quarters of the states to be approved. Sometimes, however, Congress tries to use mere statutes to overturn constitutionally based court decisions. When the Supreme Court in Texas v. Johnson (1989) declared that burning an American flag was protected political speech under the First Amendment, instead of passing a constitutional amendment Congress instead attempted to overturn the ruling with a new federal statute. The Court quickly declared that federal statute to be unconstitutional as well in United States v. Eichman (1990). For statutory interpretation rulings, if Congress is unhappy with the judicial interpretation of the statute, then all they need to do is to enact a new statute, which has the effect of overturning the court interpretation (see Barnes 2004). For example, The Lilly Ledbetter Fair Pay Act of 2009 overturned the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co. (2007), which interpreted the Civil Rights Act of 1964 to make it more difficult to prove sex discrimination regarding salaries.
One issue that nicely illustrates the differing institutional wills between Congress and the federal judiciary involves cameras at the Supreme Court. The Supreme Court has never allowed its oral arguments to be televised. Every year at least two justices go across the street and ask the appropriate subcommittee of the House Appropriations Committee for money for the federal judiciary’s annual budget (see, e.g., Walker and Barrow 1985). Inevitably, members of the subcommittee seem to ask two perennial questions: Why are there so few minority law clerks at the US Supreme Court? Why doesn’t the Court allow cameras in its courtroom to televise oral arguments? On the cameras question, some of the justices (such as Justice Souter) have replied that cameras will come into their courtroom “over their dead bodies” (Kopko and Krause 2015, 62). On the other hand, legislation has been proposed in Congress since the 1970s to try to get the Supreme Court to televise its proceedings (see, e.g., Thornberry 2012). For example, in December of 2014 a House Judiciary Committee subcommittee held a hearing on the so-called Sunshine in the Courtroom Act of 2013, which would have required cameras to be allowed in all federal courts, including the US Supreme Court (US House Judiciary Committee 2014). To date, Congress has never approved any legislation requiring the federal courts to televise their proceedings, but the issue keeps getting raised.
Court-Congress Interactions in the 1980s
The level of potential conflict between Congress (and its committees) and the federal courts seems to vary greatly over time. Conservatives have been wary of the federal courts since the heyday of liberal judicial activism during the 1950s and 1960s. They have certainly criticized many federal court decisions that they perceived to be too liberal, and they have offered a number of court-curbing proposals over the years, but Congress enacted very few of them (see, e.g., Geyh 2006). This conflictual relationship between the courts and Congress certainly played out in the two Judiciary Committees.
The chapter will now move to the committee level of analysis to help us better understand the interactions between Congress and the federal courts. When I started my interviews in 1989, one of my main concerns was finding out how the institutional culture of the House Judiciary Committee had worked to thwart the various court-curbing proposals. I quickly discovered that the lawyer-legislators on the House Judiciary Committee had been instrumental in shielding the federal courts from institutional attacks. The most important players in protecting the courts turned out to be the respective chairs of the House Judiciary Committee.
Both the Senate and House Judiciary Committees are often known as the Committees of Lawyers. Clearly lawyer-politicians have been greatly overrepresented among the membership of both Judiciary Committees. While lawyers have long been the largest professional group in the US Congress as a whole (see, e.g., Bonica 2020), the Judiciary Committees have attracted almost exclusively lawyer-legislators. In their longitudinal study of the committee assignment process in the US House from World War II to the early 2000s, Frisch and Kelly found that “lawyers, regardless of party or electoral status, are likely to request assignment to Judiciary” (Frisch and Kelly 2006, 148). The parties generally obliged these requests, and only lawyers were appointed to the committees for many years (see, e.g., Perkins 1981, 348).
Both the House and Senate Judiciary Committees have developed generally lawyerly decision-making cultures that are extremely partisan in nature and thus rife with conflict. For example, one set of scholars have described the House Judiciary Committee as a forum “where passionate and combative oratory is generally the order of the day” (Koszczuk and Stern 2005, 797). And as Devins notes about the two committees, “Judiciary Committee polarization is more extreme than party polarization elsewhere because the Judiciary Committees tend to attract especially ideological lawmakers” (Devins 2017, 777). Traditionally, both Judiciary Committees attracted members from the extremes of each political party, but this ideological polarization has been most evident in the House. Comparing the Judiciary Committees, a Democratic Senate staffer told me that “the committee is much bigger in the House and it has a broader range of extremists in both parties than in the Senate” (Miller 2020, 218).
In my early research, lawyer members of the House, and especially those lawyers who served on the House Judiciary Committee, were extremely protective of the courts. During my 1989 interviews, I found that over 70 percent of the US Representatives I interviewed who served on several House committees had extremely positive attitudes toward the federal courts, while only about 50 percent of the nonlawyer members did (Miller 1995, 105). Traditionally, the various chairs of the House Judiciary Committee were especially protective of the courts and prevented the committee from considering any court-curbing legislation. In 1989, one House Judiciary Committee staffer offered an extremely insightful explanation of why he felt the committee was extremely supportive of the courts. He said, “Just like one can disagree with different schools of thought among legal scholars or other academics, Judiciary members disagree with the courts without attacking the courts as an institution. When Judiciary members disagree with a court’s decision, they don’t call for the impeachment of the judge; they file amicus briefs for the appeal” (Miller 1995, 137). While some conservatives advocated for a variety of court-curbing measures, the House Judiciary Committee quietly killed those attacks on judicial independence.
Court-Congress Conflicts in the Early 2000s
Things had changed quite a bit when I conducted my next round of interviews in 2006–7. Federal judges felt that they were under attack from Congress in general, and specifically from the House Judiciary Committee. I wanted to find out what had changed in the institutional culture of the Judiciary Committee that made the federal judiciary feel vulnerable.
After the Republicans took control of the full House and therefore the House Judiciary Committee after the 1994 elections, Chairman Henry Hyde (R-IL) remained strongly supportive of the courts, and never let the committee consider court-curbing measures (Miller 2009, 145–47). On the other hand, Hyde’s successor, Chairman Jim Sensenbrenner (R-WI), was extremely antagonistic toward the federal judiciary when he chaired the Committee from 2001 to 2007, including convincing his committee to pass a variety of court-curbing legislation. Both men were very conservative lawyer-legislators from the Midwest, but they took radically different approaches to the issue of institutional attacks on the courts. As one congressional staffer told me in 2006, “Congressman Hyde had an old-school approach to the courts, treating judges with the respect deserved for members of a co-equal institution. Sensenbrenner is a highly partisan guy who wants to assert his own power and impose his will on anyone who gets in his way, including federal judges” (Miller 2009, 146). And as a Democratic member of the House Judiciary Committee told me in 2006, “Chairman Sensenbrenner wants to whip up the country against the courts, turning the judges into the enemy. Federal judges feel physically insecure right now” (Miller 2009, 143). Sensenbrenner thus led the charge against the federal judiciary. As an employee of the judicial branch told me in 2006, “The days when we could count on lawyers in the House to protect judicial independence are long over. Today ideology and party matter much more than whether a member has a law degree” (Miller 2009, 139).
Under Chairman Sensenbrenner, the conservative lawyers on the House Judiciary Committee (backed by various socially conservative interest groups) led the attack against the federal courts. Liberals on the Judiciary Committee were outraged. Stressing the importance of having liberal lawyer-legislators on the Committee to protect the courts, one liberal Member of Congress told me in 2006 that “there is less respect for the independence of the courts today” (Miller 2009, 17). Another US Representative told me, “The conservatives don’t understand the courts and the legal ideology of the courts very well. They don’t really know the impact of the opinions of the courts, and they don’t bother to try to understand judicial rulings. They just attack the courts. Lawyers [on the committee] must stand up for the courts when they can’t stand up for themselves” (Miller 2009, 207). The presence of ideological extremists on the committee had clear ramifications in this era. As a lobbyist described the House committee in the early 2000s, “The true believers come to the House Judiciary Committee. There are bomb hurlers on both sides of that committee” (Miller 2009, 136).
The early 2000s seemed to be the low point in the interinstitutional relationship between Congress and the federal courts, in large part because conservative lawmakers (and especially the conservative lawyer-legislators on the House Judiciary Committee) went on the attack against what they perceived to be liberal activist federal judges. Writing about this time period, Baker described the interinstitutional relationship among the judicial and legislative branches as “mutual wariness, suspicion, jealousy, and even a bit of spite” (Baker 2007, 116). In his research, Clark found that the period of 2001–8 was one of the highest in modern history for the introduction of court-curbing legislation in Congress (Clark 2011, 43). During my 2006 interviews, many of the interviewees described the relationship between the two branches at that time as “venomous,” “hostile,” “tense,” “deteriorating,” “contentious,” “[full of] animosity,” “strained,” and “adversarial” (quoted in Miller 2009, 17). One liberal US Representative who served on the House Judiciary Committee told me in 2006 that, “the relationship between the Congress and the federal courts is at an all-time low” (Miller 2009, 17).
The tension between the courts and Congress received quite a bit of attention from the media in that period. For example, in 2005 Newsweek ran a story entitled, “The War on Judges,” which concluded that “concern over the rising tide of anti-judge rhetoric has rocked even the Supreme Court. Though judges have been dragged into the culture wars before, lately the animosity—and a range of new efforts to curb judicial power—have reached fever pitch” (Rosenberg 2005, 23). Even Justice Sandra Day O’Connor highlighted these concerns, stating in 2004 that the relationship between Congress and the federal courts was “more tense than at any time in my lifetime” (quoted in Greenhouse 2005, 10). Justice Ginsburg agreed, stating that the judiciary was “under assault in a way that I haven’t seen before” (Mauro 2006, A13). As Chief Justice Rehnquist wrote in his 2004 annual report, “Criticism of judges has dramatically increased in recent years, exacerbating in some respects the strained relationship between the Congress and the federal judiciary” (Rehnquist 2004, 4). Summarizing the alarm that many felt about the rising level of attacks on the judiciary during this period, Geyh concluded that “some have likened the relationship between courts and Congress to a conversation or dialogue, but such measured and civil exchanges do not capture the rough and tumble of the interaction in its ordinary course the way a schoolyard fracas does” (Geyh 2011, 23).
When Congress is angry with the federal courts, it has a wide array of weapons in its arsenal to use against the judiciary. For example, the House and Senate Judiciary Committees often hold hearings about Supreme Court and other federal court rulings that their majority members find to be wrongly decided, and this was especially true in the early 2000s. For example, a subcommittee of the House Judiciary Committee held a hearing to express their displeasure with the ruling in Kelo v. City of New London (2005), where the Supreme Court ruled that local governments had the right to define the phrase “public use” in the Taking Clause of the Fifth Amendment. Representing the views of the committee’s opponents to the judicial ruling, Representative Tom Feeney (R-FL) said that the Kelo decision was “indicative of the larger trend in the Court to substitute their own prejudices and biases for the constitutional language itself” (US House Judiciary Committee 2005. Statement of Representative Feeney). Sometimes the hearings took on broader topics, such as complaints against the use of foreign court decisions as persuasive precedent in American judicial rulings (US House Judiciary Committee 2004).
Some of the routine interactions between Congress and the courts occur outside of the Judiciary Committees because the legislative branch must approve annual spending for the judiciary. These appropriations include funding for construction of new federal courthouses, for staff salaries, for technology and security needs, for judicial libraries, and for other operating expenses. These budget issues can also involve salaries for federal judges (Bell 2018, 45–46). In order to protect the independence of the federal courts, the US Constitution gives all federal judges life terms and it prevents Congress from reducing the salaries of federal judges. However, Congress is under no obligation to provide annual cost of living increases to them or to pay for law clerks, computers, or even air conditioning for the judges.
In the early 2000s, some conservative politicians demanded that Congress use its budgetary powers against what they perceived to be liberal activist federal judges. For example, in 2005 then majority leader of the House Tom DeLay (R-TX) bellowed, “We set up the courts. We can unset the courts. We have the power of the purse!” (quoted in Klein 2005, A9). At about the same time, Representative Steve King (R-IA), then a member of the House Judiciary Committee, expressed his frustration with the federal courts by proclaiming, “When their budget starts to dry up, we’ll get their attention” (Marcus 2005, A19). Although individual legislators have often threatened to use congressional budget powers against the federal courts in order to retaliate for judicial decisions that they do not like, Congress as a whole has rarely done so.
At times, the House Judiciary Committee has considered more severe court-curbing proposals, including court-stripping. Court stripping means that Congress passes a statute prohibiting the federal courts from hearing a specific case or a specific class of cases. Congress creates federal court jurisdiction, and many argue that the legislative branch can also take this jurisdiction away. In the early 2000s, conservative demands gained momentum to strip the federal courts of jurisdiction over a variety of types of cases. Conservative lawyer-legislators, who had traditionally protected the federal judiciary, seemed to have switched sides. For example, writing in 2006, Bell and Scott found that lawyers in the House were just as likely to introduce court-curbing legislation as were their nonlawyer colleagues. These scholars also found that House Judiciary Committee members were just as likely to introduce court-stripping legislation as were their colleagues who did not serve on that committee (Bell and Scott 2006, 196). Conservatives in the Senate also seemed supportive of court-stripping. In September 2004 the Senate Republican Policy Committee distributed a report entitled Restoring Popular Control of the Constitution: The Case for Jurisdiction-Stripping Legislation. The report stated that “the American people must have a remedy when they believe that federal courts have overreached and interpreted the Constitution in ways that are fundamentally at odds with the people’s common constitutional understandings and expectations” (Kyl 2004, 1).
The House Judiciary Committee passed a variety of court-stripping measures in the early 2000s, many of which failed to pass the full House. However, when the full Congress did enact court-stripping provisions in the Military Commissions Act of 2006 in order to prevent the high court from determining the constitutional rights of enemy combatants being held at Guantanamo Bay, the Supreme Court promptly ignored them and declared the underlying act to be unconstitutional in Boumediene v. Bush (2008). Thus the constitutionality of court-stripping measures is unclear. Clearly, however, the intent of these proposals is to change the direction of federal judicial decisions and thus alter the independent voice of the courts in the interinstitutional constitutional dialogue.
In addition to stripping the courts of jurisdiction over a variety of cases, the House Judiciary Committee discovered some other novel ways to attack the courts. One example came in the form of a bill that would have established an inspector general (IG) for the federal judiciary in order to oversee the courts, investigate ethical problems among federal judges, and conduct investigations into the issue of judges’ overreaching their constitutional powers. In 2005, the then chair of the House Judiciary Committee, Congressman Jim Sensenbrenner (R-WI), and the then chair of the Senate Judiciary Committee, Senator Chuck Grassley (R-IA), proposed such a bill. This legislation was approved by the House Judiciary Committee in September 2006 on a party-line vote, although it then died in the full House at the end of the 109th Congress (see Miller 2009, 170–79). The timing of this legislation was important. At the time, the House Judiciary Committee had passed a variety of court-stripping bills, and there were threats of impeachment of federal judges coming from many committee members.
Creating an inspector general for the judiciary would be a very aggressive form of congressional oversight over the independent third branch. Since 1978, Congress has established inspectors general in almost all federal agencies to help conduct oversight of the executive branch. The inspectors general conduct audits and investigations of agency programs and operations, and report directly to Congress on their findings. An inspector general for the federal judiciary, however, has never existed. Although the authors of this inspector-general legislation said that it was not intended to alter the decisions of federal judges, others were less convinced. The proposal struck federal judges as an attack on judicial independence. They saw the main goal of an inspector general as providing evidence to be used for the impeachment of federal judges whose decisions various politicians did not like (see Miller 2009, 170–79). As one lobbyist told me in a 2007 interview, “Having the IG report information to Congress is a clear form of intimidation of federal judges over the direction of their judicial decisions and a clear impeachment threat against them” (Miller 2009, 173). Along these same lines, Justice Ruth Bader Ginsburg declared that “judges have good cause for concern” about the legislation, implying that the sponsors’ intent was to force federal judges to issue decisions with which they agreed (Ginsburg 2006, 8). Adding some force to this argument, House Judiciary Committee Chairman Sensenbrenner said in a speech at Stanford University, “The inspector general would be able to manage how we punish and who does the punishing for judges’ misconduct” (quoted in Yap 2005, emphasis added). Thus the inspector-general legislation was just one of several institutional attacks on the federal courts by the House Judiciary Committee when it was under Chairman Sensenbrenner’s control.
Another extremely aggressive weapon that Congress could use against federal judges is the threat of impeachment. The House must first approve articles of impeachment by a majority vote, and then the Senate holds a trial to determine whether the federal official should be removed from office. It takes a two-thirds vote of the Senate to remove a federal judge or federal official. This is a drastic measure, and since the failed attempt to impeach Justice Chase in 1804 Congress has never removed a federal judge solely because of their decisions (see Rehnquist 1992). However, threats of impeachment have long been used by legislators against federal judges. For example, angry members of Congress introduced two different proposals for the impeachment of Justice William O. Douglas, the first in 1953, objecting to his willingness to stay the executions of Ethel and Julius Rosenberg, and the second in 1970 over a variety of concerns (see Pacelle 2002, 96). The standards for impeachment of federal judges are unclear. As part of the efforts to impeach Justice Douglas, then House minority leader Gerald Ford (R-MI) stated, “an impeachable offense is whatever a majority of the House of Representatives considers it to be at any given moment in history” (quoted in Kastenberg 2019, 113).
The House has brought articles of impeachment against at least fifteen federal judges over American history, and at least eight have been removed from office (see Davidson, Oleszke, Lee, and Schickler 2018, 359), but none were removed from the bench merely for their political views but instead for criminal and other similar offenses. However, the movement favoring impeachment of judges for political reasons kept growing in the early 2000s, especially among conservatives. For example, in the early 2000s, various politicians and interest groups called for the impeachment of any judges who dared cite foreign judicial decisions in any form. As one interest group spokesperson stated at a conference entitled “Remedies to Judicial Tyranny” in 2005, “if about 40 [federal judges] get impeached, suddenly a lot of these guys would be retiring” (quoted in Miller 2009, 181). One conservative member of the House Judiciary Committee told me in 2006 that “we need to increase impeachments of federal judges in order to rein in those judges who insist on legislating from the bench” (Miller 2009, 183). The interest group Justice at Stake found that between 2002 and 2006, there were over 58 impeachment threats against federal judges (Brandenburg and Kay 2007, 16–17).
Although Congress has never removed a federal judge merely for their judicial rulings, the mere threat of impeachment remains a weapon some would like to use against federal judges with whom they disagree. Alarmed at the rise in threats of impeachment, one liberal member of the House Judiciary Committee told me in 2006, “Constitutional amendments and impeachment are meant to be extremely rare” (Miller 2009, 180). Another member of the House Judiciary Committee agreed, stating, “The thought of impeaching a judge because of their rulings is astonishing. Fortunately, cooler heads always prevail. Congress must be cautious with the use of this awesome power” (Miller 2009, 180). Concerned that threats of impeachment were being used to attempt to alter specific court decisions, in May 2005 almost two-thirds of the deans of US law schools sent a letter to the leadership of both chambers of Congress opposing such actions. In part, the deans’ letter stated, “It is irresponsible and harmful to our constitutional system and to the value of a judiciary that is independent, in fact and appearance, when prominent individuals and Members of Congress state or imply that judges may be impeached or otherwise punished because of their rulings” (Revesz et al. 2005).
Congress-Court Interactions Today
When I again conducted my interviews in 2017 and 2018, the relationship between the Judiciary Committees and the courts was far less tense. There were certainly moments of potential conflict, but in general, the overt institutional attacks against the courts had clearly subsided. I wanted to explore more comparisons between the two Judiciary Committees and their relationships with the federal bench. The Senate Judiciary Committee seemed much less eager to approve anticourt legislation than its House counterpart.
Although the relationship between Congress and the federal courts is much better today, conservative opposition to the judiciary continues. For example, in 2015 a subcommittee of the Senate Judiciary Committee held a very broadly entitled hearing called With Prejudice: Supreme Court Activism and Possible Solutions (US Senate Judiciary Committee 2015). The hearing discussed a variety of ways to limit the voice of the federal courts and its power of judicial review. Individual members of the Senate Judiciary Committee have also proposed various court-curbing measures. When running for president in the 2016 presidential primaries against Donald Trump, Senator Ted Cruz (R-TX), a member of the Senate Judiciary Committee, supported a variety of proposals to curb the power of the federal bench, including ending life terms by imposing retention elections for US Supreme Court justices. Senator Cruz said then, “To see the court behaving as it is today, as a super-legislature, simply enacting the policy preferences of the elite judges who are serving upon it, is a profound betrayal of their judicial oaths of office and of the constitutional design that has protected our liberty for over two centuries” (quoted in Zezima 2015). Given his strong criticism of the Supreme Court’s rulings on same-sex marriage and the Affordable Care Act, critics of Senator Cruz have stated that he is advocating “massive resistance” to Supreme Court decisions, much like we saw from conservatives after the Brown v. Board of Education (1954) ruling. Senator Cruz countered that the current Supreme Court is out of control and needs a massive reorganization and a narrower mission. As the Senator has stated, “No one in their right mind would establish a system of government where every major contested public policy issue is decided by the decree of five unelected lawyers. That’s not a rational way to govern our society” (quoted in Zezima 2015). President Donald Trump, of course, also routinely attacked federal judges in highly personal ways when they issued decisions with which he disagreed (see, e.g., Barnes 2018).
However, the Senate in general, and the Senate Judiciary Committee in particular, have over the years killed many court-curbing bills, including most of the anticourt legislation passed by the House Judiciary Committee early in this century. As one Republican former Senate staffer told me in 2017, “The Senate Judiciary Committee stopped everything coming from the House” (Miller 2020, 216). It is worth noting that since Reconstruction, 78 percent of court-curbing legislation introduced in Congress has originated in the House, while only 22 percent started in the US Senate (Clark 2011, 26). As one lobbyist concluded, “The Senate is slower, more moderate, and more deliberative than the House” (Miller 2020, 217). Agreeing, one lobbyist said in 2017, “The Senate is a shield against the hyperactive House” (Miller 2020, 216–17). The Senate Judiciary Committee has certainly served as the legislative graveyard for anticourt legislation considered by the House Judiciary Committee.
Both the House and Senate Judiciary Committees are thus creatures of the institutional cultures of their respective broader chambers. The House is designed to protect the rights of the majority party and that is certainly true of the House Judiciary Committee as well. The Senate, on the other hand, gives more protections to minority party members, as does the Senate Judiciary Committee. A Democratic Senate staffer told me, “The House Committee is more stage-managed than Senate Judiciary,” meaning that the committee chair has a great deal of power in the House; individual Senators have a greater voice on the Senate Committee (Miller 2020, 218). Despite its lawyerlike style and culture, the House Judiciary Committee nevertheless reflects the highly partisan and ideologically polarized nature of the broader House of Representatives. A Democratic Senate staffer noted in 2017 that there is no minority voice on the House Judiciary Committee, just as there is little role for members of the minority party in the broader House chamber (Miller 2020, 217–18).
It is certainly true that the person who is chairing the Judiciary Committees can have an enormous effect on the relationship between the committees and the federal courts. On the House Judiciary Committee, subsequent chairs after Chairman Sensenbrenner were far less antagonistic toward the courts. As one lobbyist mentioned to me in 2018, Chairman Lamar Smith (R-TX), who chaired the Judiciary Committee from 2011 to 2013, was less problematic for the courts than Sensenbrenner, while Chairman Bob Goodlatte (R-VA), who chaired the Committee from 2013 to 2019, was quite sympathetic to the courts, and to federal judges in particular (Miller 2020, 248). Chairman Jerrold Nadler (D-NY), who became chair of the Committee in 2019, has been a strong champion of the federal judiciary and has led the fight against various anticourt measures over the years (see, e.g., Miller 2009, 153). Thus the chair of the committee plays a key role in shaping the interactions between the committee and the courts. As one lobbyist told me in 2018, “The key factor of great importance in the relationship between Congress and the courts is the committee leadership and their individual attitudes towards the judiciary” (Miller 2020, 248).
On the Senate side, although Senator Chuck Grassley (R-IA) was not a friend of the court when he chaired the Senate Judiciary Committee from 2015 to 2019, he could not convince the committee to approve his court-curbing agenda, in part because he could not overcome the Senate’s general unwillingness to enact extreme and nonincrementalist measures. Senator Grassley also did not want to increase tensions with the other members of the committee on legislative matters because he was compelled by the party leadership to take certain highly controversial steps on judicial confirmations. As one lobbyist explained to me in 2017, “Grassley wants comity and collegiality, and thus he won’t push anti-court legislation in the committee” (Miller 2020, 243–44). The Senate Judiciary Committee is thus clearly reflective of the broader culture of its parent chamber, which means it is harder for the Senate chair to control the approach of the committee, unlike the chair of the House Judiciary Committee.
During Chairman Grassley’s tenure, the Senate Judiciary Committee was in the strange situation of having nonlawyers leading each party’s membership on the committee. Senator Grassley was not a lawyer, and neither was the Ranking Member of the Committee, Senator Dianne Feinstein (D-CA). The lack of lawyers in the leadership of the committee raised some concerns. As a former Democratic staffer on the Senate Judiciary Committee complained in 2017, “It is quite obvious that Chairman Grassley and Ranking Member Feinstein are not lawyers. It is quite odd to have non-lawyers as both the chair and the ranking member” (Miller 2020, 241). Not everyone was happy that there were so many nonlawyers serving in key roles on the Senate Judiciary Committee. One lobbyist in 2018 was quite critical of Senator Chuck Grassley (R-IA), the former chair of the Committee. This lobbyist stated, “As a non-lawyer, Grassley is unaware of the process used in the Judicial Conference to make policy” (Miller 2020, 242–43). An employee of a think tank was equally critical of Senator Grassley’s approach to the judiciary in a 2018 interview with me, noting that “Grassley only has a vague conception of what courts do. Everything with Grassley is personal, and he has a great deal of antagonism toward federal judges.” This person continued, “As a non-lawyer, Grassley doesn’t understand how the court system actually functions” (Miller 2020, 243). A Democratic Senate staffer was more subtle in his criticism of the chairman, “Grassley is a non-lawyer, and certain issues matter more to him and matter differently than to the lawyer members on the committee” (Miller 2020, 243). When Senator Lindsey Graham (R-SC) took over the chairmanship of the Senate Judiciary Committee in 2019, lawyer-legislators again controlled the leadership of the committee.
In conclusion, this chapter has employed Historical Institutionalism analysis involving elite interviewing techniques to examine the relationship and the interactions between the federal courts and the House and Senate Judiciary Committees. At times, the interactions are routine and even friendly, but in other periods the relationship can grow extremely tense and even conflictual. Who is chairing the committees seems to have a very important impact on the relationship between the committees and the courts. When the interactions between Congress and the courts are the most difficult, that is when we can clearly see the differing institutional approaches of the two branches. Thus Congress and the federal courts clearly have different institutional cultures, different institutional wills, and different approaches to policy making. The US separation of powers system sets the stage for how these two separate, but interdependent, branches of government interact.
Bailey, Michael A., Forrest Maltzman, and Charles R. Shipan. 2011. “The Amorphous Relationship between Congress and the Courts.” In The Oxford Handbook of the American Congress, edited by Eric Schickler and Frances E. Lee. New York: Oxford University Press.
Bomboy, Scott. 2017. “Drive to Split Ninth Circuit Faces an Uncertain Future.” Constitution Daily (blog), August 29, 2017. https://constitutioncenter.org/blog/drive-to-split-ninth-circuit-faces-an-uncertain-future.
De Figueiredo, John M., and Emerson H. Tiller. 1996. “Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary,” Journal of Law and Economics 39:435–62.
———. 2011. “The Choreography of Courts-Congress Conflicts.” In The Politics of Judicial Independence: Courts, Politics, and the Public, edited by Bruce Peabody. Baltimore, MD: Johns Hopkins University Press.
Gillman, Howard, and Cornell W. Clayton. 1999. “Beyond Judicial Attitudes: Institutional Approached to Supreme Court Decision-Making.” In Supreme Court Decision-Making: New Institutionalist Approaches, edited by Cornell W. Clayton and Howard Gillman. Chicago: University of Chicago Press.
Goldmacher, Shane. 2015. “Ted Cruz: Democratic Supreme Court Justices Rule ‘Like a Radical Leftist Nutcase.’” Politico, September 18, 2015. https://www.politico.com/story/2015/09/cruz-supreme-court-justices-nutcase-213843.
Martin, Andrew D. 2006. “Statutory Battles and Constitutional Wars: Congress and the Supreme Court.” In Institutional Games and the US Supreme Court, edited by James R. Rogers, Roy B. Flemming, and Jon R. Bond. Charlottesville: University of Virginia Press.
———. 2004. “The View of the Courts from the Hill: A Noninstitutional Perspective.” In Making Policy, Making Law: An Interbranch Perspective, edited by Mark C. Miller and Jeb Barnes. Washington, DC: Georgetown University Press.
Pierson, Paul, and Theda Skocpol. 2002. “Historical Institutionalism in Contemporary Political Science.” In Political Science: The State of the Discipline, edited by Ira Katznelson and Helen V. Milner. New York: W. W. Norton.
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Rubin, Edward L. 2002. “Independence as a Governance Mechanism.” In Judicial Independence at the Crossroads: An Interdisciplinary Approach, edited by Stephen B. Burbank and Barry Friedman. Thousand Oaks, CA: Sage.
US House Judiciary Committee. 2004. Appropriate Role of Foreign Judgments in the Interpretation of American Law, Hearing before the Subcommittee of the Constitution of the House Judiciary Committee, 108th Cong., March 25, 2004.
———. 2014. Sunshine in the Courtroom Act of 2013. Hearings before the Subcommittee on Courts, Intellectual Property, and the Internet of the House Committee on the Judiciary, 113th Cong., 2nd session, December 3, 2014.
US Senate Judiciary Committee. 2015. With Prejudice: Supreme Court Activism and Possible Solutions: Hearing before Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts of the Senate Judiciary Committee, 114th Cong.
Table of Cases
Boumediene v. Bush, 553 U.S. 723 (2008).
Brown v. Board of Education, 347 U.S. 483 (1954).
Kelo v. City of New London, 545 U. S. 469 (2005).
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).
Marbury v. Madison, 5 U.S. 137 (1803).
Texas v. Johnson, 491 U.S. 397 (1989).
United States v. Eichman, 496 U.S. 310 (1990).
What is your opinion on the following discussion questions?
- Do you think that Congress should pass legislation to require that the Supreme Court televise its oral arguments? Or should that decision be left to the Court itself?
- Should Congress cut the budgets for the judiciary when its members disagree with a decision of the US Supreme Court?
- Discuss the issue of court stripping and whether Congress should restrict the type of cases that the federal courts can hear.
- Discuss whether you believe that Congress should create an inspector general for the federal judiciary.
- Should federal judges be impeached and removed from office if the majority in Congress disagrees with their rulings?
- Do you think that members of the Senate Judiciary Committee should vote against a presidential nominee to the US Supreme Court for purely ideological reasons?
- Congressman Peter W. Rodino Jr. (D-NJ) chaired the committee from 1973 to 1989 and was extremely supportive of the federal courts. Following Chairman Rodino was another supporter of the court, Representative Jack Brooks (D-TX), who chaired the committee from 1989 to 1995. Another leader of the committee who worked to protect the courts was Congressman Henry Hyde (R-IL), who served as the Ranking Minority Member of the Committee when it was under Democratic control and then who chaired the committee from 1995 to 2001 under GOP control. ↵
- When counting lawyer members in Congress, I count all individuals with law degrees, as opposed to counting only those who list attorney or some other lawyer-related field as their main occupation. I argue that even lawyer-politicians who have never practiced law nevertheless have been socialized into the profession through law school and thus “think like a lawyer” (Miller 1995, 17–23). ↵