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.