A Mere Machine: The Supreme Court, Congress, and American Democracy - Couverture rigide

Harvey, Anna

Couverture rigide

ISBN 10 : 0300171110 ISBN 13 : 9780300171112

Editeur : Yale University Press, 2013

Synopsis

<div>Introductory textbooks on American government tell us that the Supreme Court is independent from the elected branches and that independent courts better protect rights than their more deferential counterparts. But are these facts or myths?</div><div>&#160;</div><div>In this groundbreaking new work, Anna Harvey reports evidence showing that the Supreme Court is in fact extraordinarily deferential to congressional preferences in its constitutional rulings. Analyzing cross-national evidence, Harvey also finds that the rights protections we enjoy in the United States appear to be largely due to the fact that we do not have an independent Supreme Court. In fact, we would likely have even greater protections for political and economic rights were we to prohibit our federal courts from exercising judicial review altogether. Harvey&#8217;s findings suggest that constitutional designers would be wise to heed Thomas Jefferson&#8217;s advice to &#8220;let mercy be the character of the law-giver, but let the judge be a mere machine.&#8221;</div>

A propos du livre

À propos de l'auteur

<div><b>Anna Harvey</b> is associate professor of political science at New York University.</div>

Extrait. © Reproduit sur autorisation. Tous droits réservés.

A MERE MACHINE

The Supreme Court, Congress, and American Democracy

By Anna Harvey

Yale UNIVERSITY PRESS

Copyright © 2013 Anna Harvey
All rights reserved.

ISBN: 978-0-300-17111-2

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

CHAPTER 1

THE SUPREME COURT, CONGRESS,AND AMERICAN DEMOCRACY

Americans are routinely exhorted to take pride in their independentfederal judiciary. Protected by life tenure and guaranteed salaries,federal judges in the United States are said to resolve disputes free fromthe 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 governmentfor a period of nearly two hundred years has shown it to be remarkablyindependent of the other coordinate branches of that government," andthat "the creation of an independent constitutional court" was "probablythe most significant single contribution the United States has made to theart of government." Retired Justice Sandra Day O'Connor has assertedthat the "independent" federal judiciary in the United States is the "envyof the world." Justice Stephen Breyer has written that "judicial independence... offers meaningful protection for the fundamental politicalrights that every American enjoys ... that independence is a nationaltreasure."

Because of their independence, federal judges in the United States aresaid to be able to exercise a robust check on the elected branches, whosemembers are frequently tempted to undermine economic and politicalrights. Harvard University Professor of Law Cass Sunstein has written,for example, that the "insulation" of the federal judiciary has enabled federaljudges successfully to pursue democracy's "internal morality, whichconstrains what a majority may do." New York University Professor ofLaw Ronald Dworkin asserted that "the United States is a more just societythan it would have been had its constitutional rights been left to theconscience of majoritarian institutions." The American Bar Associationhas likewise claimed that "the longevity and continuing vitality of ourConstitution is attributable in significant measure to an independent judiciary."The nonprofit organization The Constitution Project has toldus that, "were it not for an independent judiciary, America would be avery different place. Judges have acted courageously to make unpopulardecisions throughout our history knowing that, to an extent, they wouldbe protected by the federal or a state constitution. A wide array of constitutionaland civil rights have been recognized and upheld only because ofan independent judiciary."

These claims have an impressive pedigree in the postwar years alone.Eugene Rostow wrote in 1952 of the benefits Americans derived fromhaving "responsible and independent judges act as important constitutionalmediators." Robert McCloskey asserted in 1960 that without thebenefit of the "longer view" provided by the "independent judiciary,""surely American democracy would be poorer." Charles Black Jr. wrotein 1961 of the value of the Supreme Court's independence in protecting"the moral basis of democracy" from the "dominant majority." AlexanderBickel wrote approvingly in 1962 of the Court's "insulation," characterizingthe Court as "an institution which stands altogether aside fromthe current clash of interests, and which, insofar as is humanly possible,is concerned only with principle." Philip Kurland wrote in 1970 of aCourt that, because it was "essentially antidemocratic," could "protectthe individual against the Leviathan of government and ... protect minoritiesagainst oppression by majorities."

A belief in the independence of the federal judiciary has not been limitedto the legal academy. Social scientists have supported this belief withrigorous quantitative evidence. Numerous econometric studies of the SupremeCourt have demonstrated, apparently conclusively, that the justicesdecide constitutional cases independently of elected branch preferences.These quantitative studies have bolstered the arguments of those whohave attributed an array of good outcomes to the apparent independenceof the federal courts.

Many have looked beyond the context of the United States and assertedthe superiority of independent courts as a general principle. JusticeStephen Breyer has written, for example, that, "without an independentjudiciary ... basic constitutional protections for the minority can becomemerely empty rhetoric." Justice Anthony Kennedy has asserted that "ifyou believe in judicial independence, you believe in freedom." RetiredJustice Sandra Day O'Connor has instructed us that judges require independencefrom popular majorities so that they may "enforce the rule oflaw and protect individual freedoms."

Naturally the justices prefer to be unconstrained in their decision making;as federal appellate judge Richard A. Posner has observed, "Judgesare biased in favor of judicial autonomy." But a belief in the generalsuperiority of independent courts is widely shared. University of MichiganProfessor of Law Steven P. Croley has written, for example, that"electoral independence goes far to safeguard constitutional rights frommajoritarian encroachment." University of California, Irvine, Professorof Law Erwin Chemerinsky has argued that only if a judiciary is "insulatedfrom electoral politics" can it be "the proper institution for constitutionalinterpretation." Northwestern University Professor of LawMartin Redish has claimed that, "absent an independent judiciary freefrom basic political pressures and influences, individual rights intended tobe insulated from majoritarian interference would be threatened." NewYork University Professor of Law Ronald Dworkin asserted that "the majorityshould not always be the final judge of when its own power shouldbe limited to protect individual rights." Dworkin's colleague New YorkUniversity Professor of Law Burt Neuborne has claimed that judicial independenceis a "safeguard against majoritarian tyranny" and "has provedsuperior to any alternative form of discharging the judicial function thathas ever been tried or conceived."

These claims have been endorsed by influential policy organizations.The United Nations has declared judicial independence to be a "HumanRights Priority," appointing a Special Rapporteur to focus on its promotion.It is one of the policy goals of the U.S. Agency for InternationalDevelopment. Its supporters include the League of Women Voters, theAmerican Bar Association, the American Judicature Society, The CenturyFoundation, The Constitution Project, the National Center for StateCourts, the Committee for Economic Development, and the BrennanCenter for Justice at the New York University School of Law. Funds forits promotion have been provided by the Open Society Institute and theCarnegie Corporation of New York.

In recent years prominent development economists have joined theranks of those who promote the benefits of independent courts. Drawinginspiration from Friedrich von Hayek, who asserted that only independentcourts could restrain majorities bent on redistribution, they tout theability of such courts to protect both economic and political rights frommajoritarian threat, leading ultimately to increased economic development.Their cross-national empirical studies, which assign the highestlevel of judicial independence both to the Supreme Court of the UnitedStates and to other courts operating under constitutional provisions likethose of Article III, have confirmed that more independent courts are infact 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 anyof them are actually true. They rest on a chain of inferences based on thepresumption that Article III guarantees the independence of the federaljudiciary in the United States. The robust rights protections observed inthat country are then thought to follow from, at least in part, the independenceof its federal courts. Courts in other countries operating underconstitutional provisions like those of Article III are likewise presumedto be independent of the policymaking branches in their countries. Thehigh levels of rights protections observed in many of these countries arethen thought to follow from the independence of their courts. Cross-nationalquantitative studies of judicial independence have adopted thesepresumptions.

But what if the premise is wrong? What if federal courts in the UnitedStates are not in fact independent of the elected branches? What if theyare instead democratically accountable courts, courts that are incentivizedto defer to the preferences of the majoritarian elected branches? Ifthis is the case, then we may have made a series of grave inferential errors.We may have misattributed the robust rights protections found in theUnited States to independent federal courts, when those courts were notin fact independent. We may have incorrectly assumed that courts operatingunder constitutional provisions like those governing federal courts inthe United States are also independent, when those provisions do not infact produce judicial independence. And we may then have misattributedthe high levels of rights protections found in many of these countries toindependent courts, when those courts were not actually independenteither.

This book interrogates the premise of an independent federal judiciaryin the United States, focusing on the Supreme Court's constitutional rulingson federal statutes between 1953 and 2004. Its findings are perhapssurprising. At least in the sample of cases analyzed here, the justices donot 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 thesecases must presumably have been a product not of their independencefrom elective majorities, but rather of their deference to those majorities.

By extension, any courts around the world operating under constitutionalrules like those governing federal courts in the United States arelikely to be similarly deferential to the policymaking branches in theircountries. Empirical studies coding such courts as independent may thenhave reported dangerously misleading results. In fact, a cross-nationalanalysis using a perhaps more appropriately coded measure of judicialindependence, reported in this book's last chapter, indicates that in countrieswith democratic policymaking institutions, more independent courtsactually reduce rights protections by substantively large amounts. If thisanalysis is correct, then we would likely have fewer protections for individualrights in the United States if our federal courts were more independentof the elected branches. We could possibly have even more robustrights protections than we currently enjoy, were we to eliminate judicialreview altogether.

How Independent Are Our Federal Courts?

But why would we ever think that the federal courts in the UnitedStates are not independent of the elected branches? After all, as we arerepeatedly instructed, Article III of the U.S. Constitution guarantees tofederal judges life tenure and salaries protected from elected branch manipulation.In his recent best-selling account of the Supreme Court, forexample, Jeffrey Toobin described the Court as "a fundamentally antidemocraticinstitution," the justices' "life tenure" giving them "no reasonto cater to the will of the people." Legal academic Scott Gerberlikewise began his recent history of the idea of judicial independence inthe United States by simply assuming the independence of Article IIIcourts: "Of course, the federal Constitution drafted in 1787 made thefederal judiciary independent." The textbook I use for my introductoryclass in American politics at New York University similarly characterizesthe Supreme Court as "independent and powerful," the result of "constitutionalguarantees of life tenure and stable salaries."

But these claims, though often repeated, are simply incorrect. ArticleIII does not in fact endow federal judges with "life tenure." Instead,federal judges in the United States serve only on the condition of "goodBehaviour." As we will see in greater detail in Chapter Two, somehave suggested that this constitutional provision empowers the electedbranches to enact procedures enabling the removal of federal judges for"bad" behavior. At a minimum we know that under the ImpeachmentClause, federal judges may be removed from the bench for "high Crimesand Misdemeanors" by the joint action of a majority in the House and atwo-thirds majority in the Senate.

Moreover, Article III does not in fact guarantee "stable salaries" forfederal judges. The Compensation Clause states merely that the justices"shall, at stated Times, receive for their Services, a Compensation, whichshall not be diminished during their Continuance in Office." This phrasingpermits the justices' salaries to be decreased in real terms if eitherHouse majorities, Senate majorities, or the president reject judicial salaryincreases (unless two-thirds majorities in both congressional chambersoverride the presidential veto in the last case).

Either or both of these constitutional provisions may incentivize thejustices to defer to elected branch preferences. Alexander Hamilton assertedas much when he wrote that the congressional impeachmentpower, an "important constitutional check," provides a "complete security"against the danger that the justices might act as free agents: "Therenever can be danger that the judges, by a series of deliberate usurpationson the authority of the legislature, would hazard the united resentmentof the body entrusted with it, while this body was possessed of the meansof 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 "apower over a man's subsistence amounts to a power over his will."

These constitutional provisions may induce particular judicial deferenceto the preferences of majorities in the House of Representatives. Impeachment,for example, is an unusual constitutional procedure in that itis explicitly sequential and does not require presidential assent. Article I,Section 2 gives to the House the "sole" power to initiate potentially embarrassingimpeachment investigations of the justices. There are no formalconstraints on how House majorities may interpret the constitutionalstandard for impeachment, nor limits on their powers to investigate justicessuspected of having violated it. House majorities are consequentlynot prohibited from going on fishing expeditions targeted at justices withdivergent preferences. These fishing expeditions may reveal judicial improprietiessufficiently serious to increase the likelihood that even friendlySenate majorities vote for conviction. Conversely, even hostile Senate majoritiescannot initiate impeachment proceedings against a justice in theabsence of support in the House. The agenda-setting power of the Housein the impeachment process may then give the justices powerful incentivesto defer to the preferences of House majorities.

The Origination Clause likewise gives the House a particularly importantrole in initiating appropriations bills that may provide for judicialsalary increases. While a Senate majority can block such a bill, and whilethe president can use his veto power to increase the size of the congressionalmajorities required to pass such a bill, it is the prerogative of theHouse to initiate appropriations bills. The justices may then have particularincentives to defer to the preferences of House majorities in order tofacilitate the introduction of bills increasing judicial salaries.

These potential incentives to defer to elected branch preferences arepossibly reinforced by multiple other constitutional provisions. Theelected branches allocate the budgets for the federal courts under theArticle I appropriations power; House majorities again have a particularlyprominent role in proposing appropriations bills under the OriginationClause. To the extent that federal judges prefer larger budgets in orderto maintain and renovate the physical spaces housing their courts, to hiremore and better-quality staff members, including the law clerks who cansignificantly reduce judges' workloads, and to purchase upgraded technologyon a regular basis, the appropriations power gives elected branchmajorities, particularly majorities in the House of Representatives, yetanother tool to induce judicial deference to elected branch preferences.

(Continues...)

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Détails de l'édition

• Éditeur: Yale University Press
• Date d'édition: 2013
• Langue: anglais
• ISBN 10: 0300171110
• ISBN 13: 9780300171112
• Reliure: Relié
• Nombre de pages: 320
• Coordonnées du fabricant: non disponible
• Personne responsable: Wiley-VCH GmbH; product_safety@wiley.com; ; Boschstrasse 12; Weinheim; 69469; Allemagne