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When Courts and Congress Collide: The Struggle for Control of America's Judicial System

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Given all the recent conservative uproar about Terry Schiavo, and the resulting DeLay/Frist threats to "discipline" the federal courts, not to mention the continuing fallout over Bush v. Gore, this book could not have come along a more opportune time. And a fine book it is irrespective of the timing. The author, currrently a law professor but formerly a judicial clerk, litigator, Judiciary Committee staffer, and judicial branch "lobbyist," is admirably equipped to address this important topic. This is simply the best book on this topic I have seen and an invaluable reference source on this topic.

Basically, the author contends that the various methods we usually associate with legislative control of the judiciary--including impeachment, control of jurisdiction, budget, etc. -- have, with one exception, not proven effective. That one exception is, as recent Supreme Court and Circuit Court nominee hi-jinx illustrate, the power of the Senate to confirm judicial nominees. The central reason for this sitution, the author demonstrates, is a long-run recognition by Congress of the importance of judicial independence resulting in a marked reluctance to interfere with sitting judges and their decisions.

In order to explore this relationship, the book first looks at the origin of judicial independence before and at the constitutional convention, the Judicary Acts of 1789 and 1801, five key periods of stress between the courts and the presidency and congress, and the development of a self-regulating and discipling judiciary (e.g., the Judicial Conference, the Rules Enabling Act, and the Administrative Office of the U.S. Courts). Separate chapters address impeachment (perhaps a bit too much in detail) and appointments, appointment being the sole way to exercise control unrestricted by concerns for judicial independence. A very strong chapter discusses the ways in which courts can avoid or mitigate conflict, including the Aswander rules and Bickel's "passive virtues" among other topics.

The author suggests this "dynamic equilibrium" may be shifting due to congressional interference through such devices as sentencing guidelines. For its part, the Rehnquist Court cut back the margins on long established congressional power in several areas. Moreover, the judiciary has developed an interesting technique of lobbying congress for or against changes, and striking down as unconstitutional those legislative changes with which it disagrees. Hopefully, the author is overly pessimistic--it would be a shame to have radicals of whatever persuasion controlling the federal courts to suit their own agendas. An outstanding discussion, superbly researched, and skillfully written (though a bit overly detailed in sections).

When Courts And Congress Collide: The Struggle For Control Of America's Judicial System by Charles Gardner Geyh (Professor of Law and Charles L. Whistler Faculty Fellow at Indiana University at Bloomington) is an in-depth, comprehensive, and scholarly study of the history of various checks and balances involved in the procedures of the American court system. Analyzing the influence of the judicial decision-making and control through congressionally appointed judges, When Courts And Congress Collide produces a definitive study of the intricate political power struggle arising from the ideological processes of judicial powers and competing influences throughout the entirety of America political, cultural, and economic life. When Courts And Congress Collide is very strongly recommended to students of American history and political science, as well of the study of the American judicial system in history, in the present, and the foreseeable future.

This book examines the judicial independence of the federal courts in the United States. The author explores how the three branches of the federal government (legislative, executive, and judicial) have dealt with the question of judicial independence under the U.S. Constitution since the beginning of the American Republic. Although the author focuses primarily on the actions of Congress and the Federal courts, he also looks at how various U.S. Presidents have approached the issue of judicial independence.

The author's historical survey of judicial independence in the federal courts is very interesting and informative. It provides a very good introduction to the subject of judicial independence that places it in historical context, rather than merely providing an abstract discussion of judicial independence in a factual vacuum. The author provides numerous examples of how U.S. Presidents and Congress, at various times throughout American history, have debated and wrestled with how to balance the judicial independence of the federal courts within the checks and balances framework of the U.S. Constitution.

The one weakness of the book is the author's tendency to minimize and downplay the actions of liberals when they have sought to limit or restrict the actions of the federal courts or influence judicial appointments. For example, the author takes about three pages to discuss efforts of Populists, Progressives, and New Dealers to limit or restrict the federal courts because of their anger and dissatisfaction with various federal court decisions (book at pages 77-80). Then the author takes about nine pages (book at pages 80-89) to argue that those efforts by the Populists, Progressives, and New Dealers did not really constitute a threat to the judicial independence of the federal courts. Similarly, the author's discussion of political battles in the Senate over the appointment and confirmation of federal judges (Chapter 4) tends to characterize and label the actions of Republican Presidents and Republican Senators more negatively than the actions of Democratic Presidents and Democratic Senators, without providing any apparent rationale for his different treatment of the two parties. If a particular type of action or practice by a U.S. President or Congress poses a possible threat to judicial independence, why would the political affiliation of the initiator of that action or practice matter? Unfortunately, the author does not articulate a cogent reason for his tendency to label and characterize the same type of actions and practices of the political parties differently based on political affiliation.

Despite the weakness discussed in the preceding paragraph, this book is worth reading for its good historical survey of judicial independence in the federal courts.