The Independence of the Judiciary

The evolving tension between Congress and the Court and the challenges to judicial independence are at the center of this study. At the time the study began in 2002, the Supreme Court had begun to restrain the power of Congress in a way that had not occurred since the New Deal. The potential implications of the Court’s actions in such areas as environmental law meant that Congress could be prevented from enacting legislation that it deemed necessary to meet national needs. At the same time, growing controversy over issues such as abortion made the judicial confirmation process for both Supreme Court justices and judges in the lower federal courts increasingly contentious.

In response to these issues, a committee was formed to determine how the Academy could act as a neutral arbiter to examine the many dimensions of the relationship between Congress and the Court. Members of the committee include professors of law Jesse Choper (Boalt Hall School of Law, University of California, Berkeley) and Robert C. Post (Yale Law School); New York Times Supreme Court correspondent Linda Greenhouse; legal scholar Judith Resnik (Yale Law School); Judge Robert Katzmann of the U.S. Court of Appeals, Second Circuit; and Abner Mikva, (University of Chicago Law School), former White House counsel, Chief Justice of the U.S. Court of Appeals for the D.C. Circuit, and five-term congressman. In the early years of the project, off-the-record meetings involving federal judges, members of the congressional judiciary committees, legal scholars, and political scientists resulted in insightful discussions about improved relations. In addition, a series of lectures and panel discussions have focused on such topics as the career paths of judges, their compensation and benefits, and the confirmation process.

As the project has developed, so has the relation between Congress and the federal judiciary. If the Supreme Court earlier challenged Congress, more recently Congress has taken steps to control the judicial branch, including consideration of limiting the ability of federal judges to travel and prohibiting them from citing foreign law. In the course of the study, reports on the meetings and discussions organized by the project have appeared in the Academy’s Bulletin. In April 2007, the independence of the judiciary was the subject of a panel discussion at a joint meeting in Washington, D.C., of the Academy and the American Philosophical Society. Moderated by Linda Greenhouse, the panel included former Supreme Court Justice Sandra Day O’Connor; Chief Judge of the State of New York Judith Kaye; and Charles Geyh, the John F. Kimberling Professor of Law at Indiana University.

Click here for the audio program.

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