American
Bar Association
2002 Legislative and Governmental Priorities
Background · Current
Status · ABA Policy · Key Points · Links
Background
The Constitution establishes the judiciary as an independent, co-equal
branch of the federal government. As a reciprocal check on this
power, the Constitution also includes provisions which make the
judiciary accountable to the political branches by giving the political
branches the powers to nominate and confirm federal judges, impeach
and remove federal judges for high crimes and misdemeanors, constitute
the lower federal courts, regulate court jurisdiction, and make
laws necessary and proper for the exercise of the foregoing powers,
including the power to fund and oversee court operations. This system
of checks and balances purposely creates a tension between judicial
independence and accountability that makes some interbranch friction
inevitable. Such tension, if maintained within manageable limits,
is a sign that the Constitution is functioning as intended, rather
than a cause for concern.
Several bills designed to curb so-called “activism”
were introduced during the 105th and 106th Congresses, but none
ultimately were signed into law. Among them were S. 248 (Hatch,
R-UT) and H.R. 12 (DeLay, R-TX). Both bills were designed to restrain
the federal judiciary by limiting judicial discretion through procedural
reforms. In addition, Rep. Joel Hefley (R-CO) and Sen. Robert Smith
(R-CO) introduced H.J. Res. 11 and S.J. Res 16 respectively. H.J.
Res. 11 and S.J. Res 16 were proposed constitutional amendments
that would have required reconfirmation of federal judges every
ten years. None of these bills received any legislative action before
Congress adjourned sine die.
Court-stripping as a legislative tactic was moribund for a decade
following congressional rejection in 1984 of all legislative proposals
designed to remove the jurisdiction of the federal courts over certain
controversial cases. Proponents switched to pursuing constitutional
amendments on these subjects, but in the wake of the failure of
all such constitutional amendments over the course of the last two
Congresses, court-stripping proposals may again re-appear. H.R 3400,
the only court-stripping bill of the 106th Congress, was introduced
in the House by Rep. Ron Paul (R-TX) and would have stripped the
inferior federal courts of jurisdiction to hear partial-birth abortion
cases. It was referred to the House Judiciary Committee where there
was no further action before Congress adjourned sine die.
In one of its last issued decisions of the 2000-2001 term, the
Supreme Court addressed court-stripping provisions in a statute
passed during the 104th Congress - the Illegal Immigration Reform
and Immigrant Responsibility Act. By ruling that these provisions
could not be applied retroactively and that Congress had not spoken
with sufficient clarity to strip the district courts of jurisdiction
to hear habeas appeals, the Court, in essence, avoided a direct
challenge to the constitutionality of the jurisdiction-stripping
provisions and adhered to the long-standing presumption that courts
should be able to review executive agency decisions and grant writs
of habeas corpus for legally indefensible denials of liberty by
a federal agency. However, the Court was rather clear about its
views: “We agree with petitioners that leaving aliens without
a forum for adjudicating claims such as those raised in this case
would raise serious constitutional questions.” Calcano-Martinez
et al v. Immigration and Naturalization Service, 00-1011 and INS
v. St Cry, 00767.
Current Status
While court stripping legislation was not introduced during the
107th Congress, grave concerns were -- and continue to be -- raised
over certain provisions in the anti-terrorism legislation that was
signed into law as P.L. 107-56 and other subsequent actions by the
Administration, such as the non-reviewability by federal courts
of final judgments issued by military tribunals and the absence
of the right to counsel by detainees suspected of having links to
terrorist groups. Concern over non-reviewability was blunted when
the Department of Defense’s final rules on the operation of
military tribunals clarified that review by an independent military
tribunal is available.
Concern over the rights of detainees has not subsided and court
challenges to parts of the U.S. Patriot Act and certain Executive
actions concerning detainees and enemy combatants are bound to continue
during 2003.
ABA Policy
The ABA opposes legislative initiatives that infringe upon the
separation of powers between Congress and the courts. The ABA also
opposes enactment of any legislation to curtail the jurisdiction
of the Supreme Court or the inferior courts or to curtail remedies
available to federal courts in cases involving constitutional rights
for the purpose of changing constitutional law.
Key Points
• Judicial independence exists for the benefit of the people,
not for the personal benefit of the judge. Article III, Section
1 of the Constitution establishes judicial independence by making
the federal judiciary an independent branch of government and by
guaranteeing federal judges life tenure during good behavior and
an undiminished salary. These guarantees make it possible for a
judge to protect and enforce individual rights, even when doing
so is contrary to popular opinion, and hold the other branches in
check.
• While there will always be interbranch conflict arising
out of disputes over where to draw the line between judicial independence
and judicial accountability, the key to managing interbranch tension
and maintaining a sound state of judicial independence and accountability
in a government of separated powers is for each branch to act
with mutual restraint, respect, and common purpose. This is best
achieved through productive and cooperative communication among
the branches.
• Although robust criticism of judicial decisions is fully
protected by the First Amendment and is indispensable to the well-being
of a democracy, misleading or intemperate judicial criticism misinforms
the public, distorts their view of the judicial process, and may
undermine public confidence in our courts.
• Since ethical obligations generally prevent judges from
defending themselves against misleading criticism, it is incumbent
upon the legal profession in particular to correct the record
whenever possible.
• Maintaining public confidence in the judiciary not only
depends upon Congress and the courts interacting with the necessary
spirit of restraint and common purpose, it also requires a public
that is knowledgeable about the fundamental importance of the
principle of judicial independence in a healthy democratic republic.
• Our Constitutional system of government relies on a system
of separated powers and checks and balances to prevent the over-concentration
of power in any one branch of government. It is incumbent upon
each branch to work cooperatively, but still retain its “checking
authority,” in order to maintain the balance and distribution
of power contemplated by our Constitution.
ABA Links
Other Links
Last Updated: January
9, 2003
Background · Current
Status · ABA Policy · Key Points · Links
|
