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); former New York Times Supreme Court correspondent
Linda Greenhouse (Yale University); 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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