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The View of the Courts from the Hill

The View of the Courts from the Hill: Interactions between Congress and the Federal Judiciary

Mark C. Miller
Copyright Date: 2009
Pages: 264
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  • Book Info
    The View of the Courts from the Hill
    Book Description:

    The View of the Courts from the Hillexplores the current interactions and relationship between the U.S. Congress and federal courts using a "governance as dialogue" approach, which argues that constitutional interpretation in the United States is a continuous and complex conversation among all the institutions of government. Expanding on his previous work on this important theme, Mark C. Miller has interviewed numerous key players specifically for this book. His subjects include members of Congress, federal judges, congressional staff, employees of the judicial branch, lobbyists, and others with an interest in the courts. Their candid and thorough comments provide an invaluable resource for students and scholars eager to explore the dynamics between congressional and judicial forces as they have evolved over the past two decades.

    The book examines customary interactions between Congress and the federal courts-especially the U.S. Supreme Court-as well as extraordinary conflicts between the two branches of government both today and throughout American history. Miller gives special attention to recent attempts by social conservatives in Congress to silence the voice of the courts in the inter-institutional dialogue through the use of court-stripping measures, threats of impeachment of federal judges, and a proposal for an inspector general for the courts. Particular focus is placed on the interactions between the courts and the House Judiciary Committee under Republican control, as well as the approach taken by the Religious Right toward federal judges and the federal courts in general. The book concludes with a call for the protection of judicial independence in order to preserve the voice of the federal courts in the constitutional interpretation dialogue.

    eISBN: 978-0-8139-2821-0
    Subjects: Political Science

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
    (pp. vii-xii)
  4. INTRODUCTION: Governance as Dialogue
    (pp. 1-37)

    Scholars who study judicial politics in the United States have increasingly come to the view that the courts cannot be understood in isolation but must be seen as part of the larger system of government, since no governmental institution makes decisions in a vacuum. More and more, the popular press and interest groups have also discovered that courts and legislative bodies interact in a variety of ways and that these interactions have distinct political relevance. As Kevin Den Dulk and J. Mitchell Pickerill explain, “Treating the Court or Congress in isolation misconstrues the nature of inter-institutional lawmaking in the United...

  5. ONE Historical Periods of Conflict with the Courts
    (pp. 38-76)

    Strained interactions between Congress and the federal courts are not a new phenomenon. Throughout American history there have been periods of intense conflict between the courts and the other branches of government. While this book focuses mostly on the relationship between Congress and the courts, the president is also a key player in the constitutional dialogue (see, e.g., Jones 1994; McMahon 2004; Whittington 2007; and Comiskey 2008). Indeed, as James Simon reminds us, “History suggests that American presidents have been most attentive to the work and personnel of the Supreme Court in periods of extreme national tension” (1973, 17). This...

  6. TWO Regular Interactions between Congress and the Courts
    (pp. 77-104)

    Although some of the interactions between Congress and the federal courts bring about inevitable intense conflict, many of the day-to-day contacts between the two branches involve more regularized and often even routine matters. A variety of scholarship (e.g., Graber 1993; Rogers 2001; Gillman 2002; Lovell 2003; and Pickerill 2004) reminds us that the relationship between Congress and the courts can be quite cooperative at times, as the legislative branch may purposely increase the power of the courts or defer decisions to the courts for a variety of reasons. Of course, even these regularized interactions may lead to conflicts because of...

  7. THREE The Courts as Pawns in the Culture Wars
    (pp. 105-133)

    Today the interactions between Congress and the federal courts seem to have entered a new phase. As indicated in the introduction, many believe that the relationship between the courts and Congress is at its lowest point since the 1950s or even since Reconstruction. The courts are under increasing attack in Congress, in part because they have become the pawns in the brutal culture wars taking place in American society.

    There has always been a tension between certain fundamentalist religious elements in American society and the more rationalist federal judiciary. As Richard Ellis reports, even in colonial times evangelical religious leaders...

  8. FOUR The House Judiciary Committee: The Committee of Lawyers
    (pp. 134-155)

    When the Religious Right wanted to put its anti-court agenda into action, it turned to an unlikely source of anti-court sentiment, the House Judiciary Committee. In the late 1980s, when I first interviewed members of Congress about their attitudes toward the courts, Congressmen with law degrees and members of the House Judiciary Committee, regardless of their party and /or ideology, were the most supportive of the courts (see Miller 1992, 1993, 1995). At that time, almost all of those lawyer-legislators appreciated and valued the voice of legal reasoning and legal analysis that the courts bring to the inter-institutional conversational dialogue...

  9. FIVE Three Recent Threats to Judicial Independence
    (pp. 156-184)

    Over the last several decades, conservatives in Congress have pushed for more congressional oversight of the judiciary and its decisions. Some have even claimed that the courts are inferior to Congress and that Congress should thus assert more authority over the courts and over specific court decisions. Congressional oversight of the executive branch is to be expected, since both branches make politically based decisions, but congressional oversight of the judicial branch might be seen as an attempt to make the courts subservient to the will of Congress and /or the president.

    Recently in Congress, and especially in the House of...

  10. SIX The Need for Judicial Independence
    (pp. 185-210)

    If the Supreme Court and the other federal courts are to remain an important voice in the inter-institutional constitutional dialogue, judicial independence must be protected. It does not matter whether the threats to judicial independence come from the Right or from the Left. In the early twentieth century, most of the threats were from the Left; today most of them are from the Right. The courts have become a highly charged ideological and partisan issue in Congress, in part, as one employee of the judicial branch told me, “because the stakes are higher now as the role of the courts...

  11. APPENDIX: The Interviews
    (pp. 211-212)
    (pp. 213-240)
  13. INDEX
    (pp. 241-248)
  14. Back Matter
    (pp. 249-249)