The Independence of the Judiciary
This project examined the evolving relationship between Congress and the Supreme Court. Among other issues, it addressed the Supreme Court's increasing willingness to place constitutional limits on Congress' power to enact statutes; the judicial nomination and confirmation process; and questions of statutory interpretation.
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.
As the project developed, so did the relation between Congress and the federal judiciary. If the Supreme Court earlier challenged Congress, later on Congress took steps to control the judicial branch, including consideration of limiting the ability of federal judges to travel and prohibiting them from citing foreign law.
Jesse Herbert Choper
Robert Charles Post
Robert A. Katzmann
News & Updates
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 focused on such topics as the career paths of judges, their compensation and benefits, and the confirmation process.
In the course of the study, reports on the project's meetings and discussions 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 audio of this program.
In November 2008, judicial independence was the focus of a Stated Meeting of the American Academy in New York, NY. This meeting also included Linda Greenhouse and Sandra Day O'Connor as well as Richard L. Revesz, Dean and Lawrence King Professor of Law, New York University School of Law; Martin Lipton, Chairman, Board of Trustees, New York University; John Sexton, President, New York University; Judith Resnik, Arthur Liman Professor of Law, Yale Law School; Bert Brandenburg, Executive Director, Justice at Stake; and Viet D. Dinh, Professor of Law, Georgetown University Law Center.