A Mere Machine: The Supreme Court, Congress, and American Democracy
A Mere Machine: The Supreme Court, Congress, and American Democracy
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| ISBN-13: | 9780300199192 |
|---|---|
| Publisher: | Yale University Press |
| Publication date: | 11/28/2013 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| File size: | 7 MB |
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A MERE MACHINE
The Supreme Court, Congress, and American Democracy
By Anna Harvey
Yale UNIVERSITY PRESS
Copyright © 2013 Anna HarveyAll rights reserved.
ISBN: 978-0-300-17111-2
CHAPTER 1
THE SUPREME COURT, CONGRESS, AND AMERICAN DEMOCRACY
Americans are routinely exhorted to take pride in their independent federal judiciary. Protected by life tenure and guaranteed salaries, federal judges in the United States are said to resolve disputes free from the political intimidation that exists in other, less fortunate, countries. The late Chief Justice William H. Rehnquist declared, for example, that "the performance of the judicial branch of the United States government for a period of nearly two hundred years has shown it to be remarkably independent of the other coordinate branches of that government," and that "the creation of an independent constitutional court" was "probably the most significant single contribution the United States has made to the art of government." Retired Justice Sandra Day O'Connor has asserted that the "independent" federal judiciary in the United States is the "envy of the world." Justice Stephen Breyer has written that "judicial independence ... offers meaningful protection for the fundamental political rights that every American enjoys ... that independence is a national treasure."
Because of their independence, federal judges in the United States are said to be able to exercise a robust check on the elected branches, whose members are frequently tempted to undermine economic and political rights. Harvard University Professor of Law Cass Sunstein has written, for example, that the "insulation" of the federal judiciary has enabled federal judges successfully to pursue democracy's "internal morality, which constrains what a majority may do." New York University Professor of Law Ronald Dworkin asserted that "the United States is a more just society than it would have been had its constitutional rights been left to the conscience of majoritarian institutions." The American Bar Association has likewise claimed that "the longevity and continuing vitality of our Constitution is attributable in significant measure to an independent judiciary." The nonprofit organization The Constitution Project has told us that, "were it not for an independent judiciary, America would be a very different place. Judges have acted courageously to make unpopular decisions throughout our history knowing that, to an extent, they would be protected by the federal or a state constitution. A wide array of constitutional and civil rights have been recognized and upheld only because of an independent judiciary."
These claims have an impressive pedigree in the postwar years alone. Eugene Rostow wrote in 1952 of the benefits Americans derived from having "responsible and independent judges act as important constitutional mediators." Robert McCloskey asserted in 1960 that without the benefit of the "longer view" provided by the "independent judiciary," "surely American democracy would be poorer." Charles Black Jr. wrote in 1961 of the value of the Supreme Court's independence in protecting "the moral basis of democracy" from the "dominant majority." Alexander Bickel wrote approvingly in 1962 of the Court's "insulation," characterizing the Court as "an institution which stands altogether aside from the current clash of interests, and which, insofar as is humanly possible, is concerned only with principle." Philip Kurland wrote in 1970 of a Court that, because it was "essentially antidemocratic," could "protect the individual against the Leviathan of government and ... protect minorities against oppression by majorities."
A belief in the independence of the federal judiciary has not been limited to the legal academy. Social scientists have supported this belief with rigorous quantitative evidence. Numerous econometric studies of the Supreme Court have demonstrated, apparently conclusively, that the justices decide constitutional cases independently of elected branch preferences. These quantitative studies have bolstered the arguments of those who have attributed an array of good outcomes to the apparent independence of the federal courts.
Many have looked beyond the context of the United States and asserted the superiority of independent courts as a general principle. Justice Stephen Breyer has written, for example, that, "without an independent judiciary ... basic constitutional protections for the minority can become merely empty rhetoric." Justice Anthony Kennedy has asserted that "if you believe in judicial independence, you believe in freedom." Retired Justice Sandra Day O'Connor has instructed us that judges require independence from popular majorities so that they may "enforce the rule of law and protect individual freedoms."
Naturally the justices prefer to be unconstrained in their decision making; as federal appellate judge Richard A. Posner has observed, "Judges are biased in favor of judicial autonomy." But a belief in the general superiority of independent courts is widely shared. University of Michigan Professor of Law Steven P. Croley has written, for example, that "electoral independence goes far to safeguard constitutional rights from majoritarian encroachment." University of California, Irvine, Professor of Law Erwin Chemerinsky has argued that only if a judiciary is "insulated from electoral politics" can it be "the proper institution for constitutional interpretation." Northwestern University Professor of Law Martin Redish has claimed that, "absent an independent judiciary free from basic political pressures and influences, individual rights intended to be insulated from majoritarian interference would be threatened." New York University Professor of Law Ronald Dworkin asserted that "the majority should not always be the final judge of when its own power should be limited to protect individual rights." Dworkin's colleague New York University Professor of Law Burt Neuborne has claimed that judicial independence is a "safeguard against majoritarian tyranny" and "has proved superior to any alternative form of discharging the judicial function that has ever been tried or conceived."
These claims have been endorsed by influential policy organizations. The United Nations has declared judicial independence to be a "Human Rights Priority," appointing a Special Rapporteur to focus on its promotion. It is one of the policy goals of the U.S. Agency for International Development. Its supporters include the League of Women Voters, the American Bar Association, the American Judicature Society, The Century Foundation, The Constitution Project, the National Center for State Courts, the Committee for Economic Development, and the Brennan Center for Justice at the New York University School of Law. Funds for its promotion have been provided by the Open Society Institute and the Carnegie Corporation of New York.
In recent years prominent development economists have joined the ranks of those who promote the benefits of independent courts. Drawing inspiration from Friedrich von Hayek, who asserted that only independent courts could restrain majorities bent on redistribution, they tout the ability of such courts to protect both economic and political rights from majoritarian threat, leading ultimately to increased economic development. Their cross-national empirical studies, which assign the highest level of judicial independence both to the Supreme Court of the United States and to other courts operating under constitutional provisions like those of Article III, have confirmed that more independent courts are in fact associated with large increases in both economic and political rights.
But Is Any of It True?
These claims are widely accepted. But it is unclear whether any of them are actually true. They rest on a chain of inferences based on the presumption that Article III guarantees the independence of the federal judiciary in the United States. The robust rights protections observed in that country are then thought to follow from, at least in part, the independence of its federal courts. Courts in other countries operating under constitutional provisions like those of Article III are likewise presumed to be independent of the policymaking branches in their countries. The high levels of rights protections observed in many of these countries are then thought to follow from the independence of their courts. Cross-national quantitative studies of judicial independence have adopted these presumptions.
But what if the premise is wrong? What if federal courts in the United States are not in fact independent of the elected branches? What if they are instead democratically accountable courts, courts that are incentivized to defer to the preferences of the majoritarian elected branches? If this is the case, then we may have made a series of grave inferential errors. We may have misattributed the robust rights protections found in the United States to independent federal courts, when those courts were not in fact independent. We may have incorrectly assumed that courts operating under constitutional provisions like those governing federal courts in the United States are also independent, when those provisions do not in fact produce judicial independence. And we may then have misattributed the high levels of rights protections found in many of these countries to independent courts, when those courts were not actually independent either.
This book interrogates the premise of an independent federal judiciary in the United States, focusing on the Supreme Court's constitutional rulings on federal statutes between 1953 and 2004. Its findings are perhaps surprising. At least in the sample of cases analyzed here, the justices do not appear to decide cases independently of elected branch preferences. Instead, they appear to be extraordinarily deferential to those preferences, in particular to the preferences of majorities in the House of Representatives. Any protections for individual rights secured by the Court in these cases must presumably have been a product not of their independence from elective majorities, but rather of their deference to those majorities.
By extension, any courts around the world operating under constitutional rules like those governing federal courts in the United States are likely to be similarly deferential to the policymaking branches in their countries. Empirical studies coding such courts as independent may then have reported dangerously misleading results. In fact, a cross-national analysis using a perhaps more appropriately coded measure of judicial independence, reported in this book's last chapter, indicates that in countries with democratic policymaking institutions, more independent courts actually reduce rights protections by substantively large amounts. If this analysis is correct, then we would likely have fewer protections for individual rights in the United States if our federal courts were more independent of the elected branches. We could possibly have even more robust rights protections than we currently enjoy, were we to eliminate judicial review altogether.
How Independent Are Our Federal Courts?
But why would we ever think that the federal courts in the United States are not independent of the elected branches? After all, as we are repeatedly instructed, Article III of the U.S. Constitution guarantees to federal judges life tenure and salaries protected from elected branch manipulation. In his recent best-selling account of the Supreme Court, for example, Jeffrey Toobin described the Court as "a fundamentally antidemocratic institution," the justices' "life tenure" giving them "no reason to cater to the will of the people." Legal academic Scott Gerber likewise began his recent history of the idea of judicial independence in the United States by simply assuming the independence of Article III courts: "Of course, the federal Constitution drafted in 1787 made the federal judiciary independent." The textbook I use for my introductory class in American politics at New York University similarly characterizes the Supreme Court as "independent and powerful," the result of "constitutional guarantees of life tenure and stable salaries."
But these claims, though often repeated, are simply incorrect. Article III does not in fact endow federal judges with "life tenure." Instead, federal judges in the United States serve only on the condition of "good Behaviour." As we will see in greater detail in Chapter Two, some have suggested that this constitutional provision empowers the elected branches to enact procedures enabling the removal of federal judges for "bad" behavior. At a minimum we know that under the Impeachment Clause, federal judges may be removed from the bench for "high Crimes and Misdemeanors" by the joint action of a majority in the House and a two-thirds majority in the Senate.
Moreover, Article III does not in fact guarantee "stable salaries" for federal judges. The Compensation Clause states merely that the justices "shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." This phrasing permits the justices' salaries to be decreased in real terms if either House majorities, Senate majorities, or the president reject judicial salary increases (unless two-thirds majorities in both congressional chambers override the presidential veto in the last case).
Either or both of these constitutional provisions may incentivize the justices to defer to elected branch preferences. Alexander Hamilton asserted as much when he wrote that the congressional impeachment power, an "important constitutional check," provides a "complete security" against the danger that the justices might act as free agents: "There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their stations." Hamilton also observed that it would be at the "discretion of the legislature" to increase the justices' salaries (or not), noting as well that "a power over a man's subsistence amounts to a power over his will."
These constitutional provisions may induce particular judicial deference to the preferences of majorities in the House of Representatives. Impeachment, for example, is an unusual constitutional procedure in that it is explicitly sequential and does not require presidential assent. Article I, Section 2 gives to the House the "sole" power to initiate potentially embarrassing impeachment investigations of the justices. There are no formal constraints on how House majorities may interpret the constitutional standard for impeachment, nor limits on their powers to investigate justices suspected of having violated it. House majorities are consequently not prohibited from going on fishing expeditions targeted at justices with divergent preferences. These fishing expeditions may reveal judicial improprieties sufficiently serious to increase the likelihood that even friendly Senate majorities vote for conviction. Conversely, even hostile Senate majorities cannot initiate impeachment proceedings against a justice in the absence of support in the House. The agenda-setting power of the House in the impeachment process may then give the justices powerful incentives to defer to the preferences of House majorities.
The Origination Clause likewise gives the House a particularly important role in initiating appropriations bills that may provide for judicial salary increases. While a Senate majority can block such a bill, and while the president can use his veto power to increase the size of the congressional majorities required to pass such a bill, it is the prerogative of the House to initiate appropriations bills. The justices may then have particular incentives to defer to the preferences of House majorities in order to facilitate the introduction of bills increasing judicial salaries.
These potential incentives to defer to elected branch preferences are possibly reinforced by multiple other constitutional provisions. The elected branches allocate the budgets for the federal courts under the Article I appropriations power; House majorities again have a particularly prominent role in proposing appropriations bills under the Origination Clause. To the extent that federal judges prefer larger budgets in order to maintain and renovate the physical spaces housing their courts, to hire more and better-quality staff members, including the law clerks who can significantly reduce judges' workloads, and to purchase upgraded technology on a regular basis, the appropriations power gives elected branch majorities, particularly majorities in the House of Representatives, yet another tool to induce judicial deference to elected branch preferences.
(Continues...)
Excerpted from A MERE MACHINE by Anna Harvey. Copyright © 2013 Anna Harvey. Excerpted by permission of Yale UNIVERSITY PRESS.
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Table of Contents
Contents
Preface: "A Mere Machine".................... ix
1. The Supreme Court, Congress, and American Democracy.................... 1
2. The Supreme Court, the Elected Branches, and the Constitution........... 35
3. Estimating the Effect of Elected Branch Preferences on Supreme Court
Judgments.................... 77
4. The Puzzle of the Two Rehnquist Courts.................... 107
5. Explaining the Puzzle of the Two Rehnquist Courts.................... 141
6. Elected Branch Preferences, Public Opinion, or Socioeconomic Trends?.... 191
7. Restoring the Court's Missing Docket.................... 223
8. Misreading the Roberts Court.................... 249
9. What's So Great About Independent Courts, Anyway?.................... 264
Notes.................... 297
Index.................... 351