Vol. 11 No. 5 (May 2001) pp. 261-265.

CONGRESS CONFRONTS THE COURT: THE STRUGGLE FOR LEGITIMACY AND AUTHORITY IN LAWMAKING by Colton C. Campbell and John F. Stack, Jr. (Editors). Lanham, MD: Rowman & Littlefield, 2001. 160 pp. Cloth $55.00. ISBN: 0-7425-0138-8. Paper $19.95. ISBN: 0-7425-0139-6.

Reviewed by Matthew J. Franck, Department of Political Science, Radford University.

In the case of COOPER v. AARON (1958), the nine justices of the Supreme Court (all of them individually signatories to the opinion, actually written by Justice William Brennan), committed themselves to the following syllogism:

Major premise: "Article VI of the Constitution makes the Constitution the 'supreme Law of the Land.'"

Minor premise: MARBURY v. MADISON (1803) "declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution."

Conclusion: Holdings of the Supreme Court on the meaning of the Constitution are themselves, therefore, the "supreme law of the land."

No logical fallacy afflicts this declaration of judicial supremacy. The problem is that the minor premise is a historical falsehood. The Court would instead have to repudiate MARBURY, and the whole career of John Marshall, reach the conclusion stated above. This the modern Court has in fact done, albeit sub silentio. The result has been a distortion of the American political order, and a flattening of the dynamics of the separation of powers, that amount to an assault on the Constitution-an assault in which the Congress is itself complicit, as an accessory after the fact.

Thus, when a book comes along with the promising title CONGRESS CONFRONTS THE COURT, one feels one's spirits being lifted in anticipation of its contents. Will the authors explore the pathology of judicial supremacy in a really probing way, offering some thoughts on how the Congress might regain its position as a co-equal branch of government? Sadly, the answer in this case is "no."

The editors have assembled contributions from eight political scientists (including themselves) purporting to show, according to their introductory chapter, that "[c]ongressional-judicial relations are neither static nor unidimensional," that they amount to a "struggle for institutional balance," of "competition and cooperation" in which "[c]onversation turns to confrontation," and that we may see, in this relationship, "a complex and fluid process of governing" (pp. 1, 2, 7, and 17). However, in terms of the politics of constitutional law as opposed to matters of statutory construction, only two of the seven chapters that follow (of which the editors' own chapter 7 is not one) even come close to showing that the Congress and the Court are, have been, or even can be equal players on the field of constitutional interpretation.

Page 262 begins here

The other five chapters miss the point, wander off into irrelevancies (however interesting in themselves), or engage in mere polemics against recent decisions of the Court.

Let us begin, then, with the two chapters that actually address the core constitutional issues between the Congress and the Court. Louis Fisher, in chapter 2, is the only contributor to take note of the gulf between the modern doctrine of judicial supremacy stated in COOPER and the modest claims for judicial review in MARBURY. However, Fisher's litany of examples, adduced to show that the Congress has historically challenged the Court's position as "ultimate interpreter" of the Constitution, actually shows something quite otherwise. Dividing his main treatment into two sections titled "When the Court Upholds Constitutionality" and "When the Court Finds Unconstitutionality," Fisher reviews occasions when Congress (and/or the president) took a different view of the Constitution's meaning from that taken by the Court. The first category signifies little, however. When the Court affirms the constitutionality of an act of Congress, and a subsequent Congress or president (as in Jackson's Bank veto) concludes the opposite, no confrontation occurs between the judicial and the other branches. How could it? The failure or refusal to pass an act of Congress can hardly give rise to a case or controversy on the bill's constitutionality. As for the second category, only one of Fisher's episodes really works as exemplary of a direct challenge to judicial supremacy by the other branches: the 1862 passage of an act outlawing slavery in the federal territories, in defiance of the DRED SCOTT (1857) ruling (Fisher throws in, for good measure, the contemporaneous opinion of Lincoln's attorney general on the irrelevance of race to American citizenship). Whether the Taney Court, in the midst of a civil war it helped to bring about, would have overturned the territorial slavery ban in a case properly brought before it is an interesting question, but no such case arose. As for Fisher's other examples in this category-the 25-year "dialogue" between Court and Congress on child labor legislation, the question of the Smith Act's preemption of state sedition laws, the House of Representatives' publication of a committee report that a federal district judge sought to suppress, and the revival of informal legislative vetoes since the formal device was held unconstitutional in the CHADHA ruling (1983)-they don't amount to much. Leaving aside the one fine example of the territorial slavery ban, Fisher's history of "congressional checks on the judiciary" is really a tale of congressional indirection, failed efforts to amend the Constitution, statutory end-runs around disliked rulings of the Court, and the odd fit of pique directed at an easily-cowed lower court judge. There isn't much for Congress to be proud of in this record.

In the only other chapter to mine the deepest strata of the relation between Congress and the Court, Carolyn N. Long (in chapter 6) offers a fine narrative of the game of badminton between the two institutions with respect to religious liberty in the aftermath of the SMITH decision (1990). There is much that is instructive here, but certain ironies seem to be overlooked. SMITH, after all, may be seen as a reversal of field from 37 years of judicial abuse of states and localities under an incoherent reading of the free exercise clause, and in enacting the Religious Freedom Restoration Act in 1993, Congress seemed to say to the Court, "you will hereby abandon your current position of judicial restraint." When RFRA

Page 263 begins here

was itself overturned by the Court in CITY OF BOERNE v. FLORES (1997), the Court adopted the curious posture of abusing the Congress's authority as a coordinate branch in the name of defending its own prerogative not to abuse the states under the First Amendment. I question, too, Long's judgment that RFRA "would not directly overturn the Court's constitutional ruling in SMITH" but would merely "circumvent the decision by creating a judicially enforceable statute that protected religious freedom." Long surely knows RFRA's legislative history better than I, but that is not the message one gets from the text of the act, which seemed aimed squarely at the reversal of SMITH, root and branch-and that is clearly how the Court viewed it. Was RFRA too direct a challenge, or not direct enough? Finally, the situation since CITY OF BOERNE has not been heartening for partisans of a robust Congress, as the congressional interest in passing the Religious Liberty Protection Act (a cup of weak tea in any event) has clearly fizzled out for the time being, and probably for good. It is hard not to conclude that neither backbone, nor imagination, nor much in the way of intelligent constitutional principle marks the pattern of congressional behavior in this entire episode. If judicial supremacy is the problem, nothing in Congress's choices here represents a solution.

Mary L. Volcansek's chapter 3, on the impeachment of federal judges, focusing chiefly on the mechanisms by which lower court judges can be removed or forced to resign for being "unreliable" from Congress's (or sometimes the executive's) perspective, makes larger claims than it can sustain. Intent on showing that "[u]nreliable judges can be brought to heel or removed" (p. 48), Volcansek offers a sketchy account of the thirteen judicial impeachments in our history (the score being seven removals, four acquittals, and two resignations prior to trial), and adds some remarks on a handful of occasions (out of roughly twenty) when criminal prosecutions or other pressures have caused judges to resign from office. But whatever an "unreliable" judge is- and this is far from clear in Volcansek's account-a history of some thirty "removals" (defining broadly and counting generously) is not much to go on in advancing a hypothesis that impeachment is an effective mechanism for the restraint of judicial decision-making. Even if garden-variety corruption is not distinguished from politico-legal grounds for impeachment-a distinction Volcansek for the most part waves aside as unimportant (p. 46)-there have been, as of current date, thirty tenures cut short out of 2,860 persons who have occupied the federal bench "during good behavior." Have all the 2,830 others been "reliable" practitioners of judicial power from the perspective of congressional prerogatives under the Constitution? With odds like these, surely few if any current judges toss and turn at night in contemplation of congressional vengeance. Where justices of the Supreme Court in particular are concerned, the lone, long-ago episode of the Samuel Chase trial appears to bear out Jefferson's complaint that the impeachment power of Congress is a mere "scarecrow." More's the pity.

Like Carolyn Long, Thomas L. Brunell (in chapter 4) tells an interesting tale-this one about the Court's recent involvement in the controversy over statistical sampling in the decennial census. However, the point of the tale's inclusion in this book is unclear, unless it is to illustrate the contemporary Congress's penchant for avoiding constitutional responsibility. All things considered, the Supreme Court comes out of this episode smelling pretty sweet. When a congressional "compromise" on

Page 264 begins here

statistical sampling was passed in 1997, the act handed off the weightiest issues (involving the use of sampling for purposes of reapportionment and redistricting) to the courts, manufacturing standing for the House leadership to sue the Commerce Department and expediting Supreme Court review. Although some of the justices expressed doubt about the propriety of deciding the case at all, a majority nevertheless decided solomonically, in DEPT. OF COMMERCE v. U. S. HOUSE (1999), that sampling could not be used for reapportionment but could be used for redistricting-and they managed to avoid constitutional grounds for the ruling, resting on statute law instead. If there will be, as Brunell predicts, a proliferation of redistricting lawsuits against the states after the 2000 census, Congress has only itself to blame. Congress confronts the Court? Hardly in this instance.

Our descent from best to worst of the chapters herein concludes with chapter 5 by David M. O'Brien, and chapter 7 by editors Stack and Campbell. Both chapters are critical of the recent revival of "federalism" by the Supreme Court, and both display an inability or an unwillingness to make reasoned jurisprudential arguments. O'Brien, who puts scare quotes around "liberal judicial activism" wherever he uses the phrase but describes conservative judicial activism straight up without quotation marks, claims that conservative Republican politicians (particularly presidential candidates since Nixon) have brought about an unprecedented politicization of the federal courts and of judicial nominations. Somehow this is connected to the activist federalism of the current Rehnquist Court, but the connection is not at all made clear. Even if the history O'Brien offered were persuasive (and on its own terms here it is not), two questions occur. First, did the liberal justices of the Warren and Burger Courts not justly provoke the politicization, of which O'Brien complains? And second, what exactly is wrong with the recent federalism rulings? The first question seems never to occur to O'Brien at all, and the answer to the second is merely assumed: the rulings go against the grain of precedents O'Brien likes and produce results he doesn't. He never expends any effort in critiquing the reasoning of these Rehnquist Court decisions on jurisprudential grounds-something that actually takes fairly little sweat of the brow.

Stack and Campbell fare no better in dealing with much the same subject, and undercut any criticism they would like to make by asserting at the outset, without anything resembling an argument, that the Court has been activist since Marshall decided the MARBURY case. They even make the reader question whether they have read Fisher's contribution when they equate MARBURY with COOPER. Claiming that the Rehnquist Court has offered up "relatively new and novel (both?) readings of original intent," and "new understandings of the nature of the sovereignty of the states" (p. 107), Stack and Campbell never adequately state what is new, much less what is objectionable, about the Court's recent work, and display, in the remarks just quoted, little knowledge of antebellum constitutional history. John Marshall would recognize instantly what the Rehnquist Court is doing with commerce and the Tenth and Eleven Amendments, and would rightly reject it out of hand.

The exasperated reader reaches the epilogue (chapter 8) by Nicol C. Rae praying for something sensible to be said, and finds a little when he complains of the "rather tiresome and unfruitful debate

Page 265 begins here

over 'judicial activism' and its converse 'judicial restraint'" (p. 112), a point well-scored that then seems nullified by his remarking on "four scenarios in which we are likely to witness sustained legislative activism from the judicial branch" (p. 113). Surely the substitution of the adjective "legislative" for "judicial" in front of the noun "activism" cannot make that much difference. However, at least the scenarios then sketched are interestingly drawn and historically plausible.

As an old-fashioned teacher of constitutional jurisprudence, I have no idea whether CONGRESS CONFRONTS THE COURT is representative of the "new institutionalism" in the political science subfield of public law. If it is, then the one thing most needful is that the "new institutionalism" fade quickly from view, to be supplanted by a "new constitutionalism." Of the contributions herein, I'm afraid, only Louis Fisher's shows a real and sustained interest in reasoning about the meaning of the Constitution. Surely that is the authentic starting point for understanding the territory that is contested between Congress and the Supreme Court.

CASE REFERENCES:

CITY OF BOERNE v. FLORES, 521 U.S. 507 (1997).

COOPER v. AARON, 358 U.S. 1 (1958).

DEPARTMENT OF COMMERCE v. U.S. HOUSE OF REPRESENTATIVES, 525 U.S. 316 (1999).

DRED SCOTT v. SANDFORD, 60 U.S. (19 How.) 393 (1857).

EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON v. SMITH, 492 U.S. 872 (1990).

IMMIGRATION AND NATURALIZATION SERVICE v. CHADHA, 462 U.S. 919 (1983).

MARBURY v. MADISON, 5 U.S. (1 Cranch) 137 (1803).


Copyright 2001 by the author, Matthew J. Franck.