Tuesday, January 26, 2016

John Roberts, Ted Olson, and the Judicial Separation of Powers

Neil Siegel

In the recent oral argument before the U.S. Supreme Court in Bank Markazi v. Peterson, former Solicitor General Ted Olson defended Congress’s ability to affect the outcome of pending judicial proceedings, even through legislation directed at a particular case.  Chief Justice Roberts repeatedly expressed concern about the threat such legislation poses to judicial independence.  In a new paper, my colleague Curt Bradley and I discuss a much earlier debate between Olson and Roberts—while both were working in the Reagan Justice Department—in which their positions were essentially reversed.  Aspects of this debate have previously been unknown in the literature, and we discuss them as part of a broader consideration of how Congress and the executive branch have reasoned about the permissibility of proposed restrictions on the Supreme Court in certain high-stakes disputes.  Here is the abstract:

Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary — what this Article calls the “judicial separation of powers.”

As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an appeal to “historical gloss”— a claim that the practice informs the content of constitutional law. Second, historical practice might be invoked to support what Commonwealth theorists have termed “constitutional conventions.”

To illustrate how both gloss and conventions enrich our understanding of the judicial separation of powers, the Article considers the authority of Congress to “pack” the Supreme Court, and the authority of Congress to “strip” the Court’s appellate jurisdiction. This Article shows that, although the defeat of Franklin Roosevelt’s Court-packing plan in 1937 has been studied almost exclusively from a political perspective, many criticisms of the plan involved claims about historical gloss; other criticisms involved appeals to non-legal but obligatory constitutional conventions; and still others blurred the line between those two categories or shifted back and forth between them. Strikingly similar themes emerge in debates in Congress in 1957-58, and within the Justice Department in the early 1980s, over the authority of Congress to prevent the Court from deciding constitutional issues by restricting its appellate jurisdiction. 

The Article also shows, based on internal executive branch documents that have not previously been discovered or discussed in the literature, how Chief Justice John Roberts, while working in the Justice Department and debating Office of Legal Counsel head Theodore Olson, failed to persuade Attorney General William French Smith that Congress has broad authority to strip the Court’s appellate jurisdiction. The Article then reflects on the implications of gloss and conventions for the judicial separation of powers more generally.

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