by Mark C. Miller. Charlottesville: University of Virginia Press, 2009. 272pp. Cloth. $45.00. ISBN: 9780813928104.
Reviewed by Barbara L. Graham, Department of Political Science, University of Missouri-St. Louis. Email: barbara.graham [at] umsl.edu.
In THE VIEW OF THE COURTS FROM THE HILL, Mark C. Miller examines the interactions between Congress and the federal courts with primary attention given to congressional attitudes toward the federal judiciary and federal judges. Miller’s secondary objective is to expose the nature of contemporary right-wing threats to judicial independence from conservative Republicans in Congress and the Religious Right. For Miller, the attacks from the right threaten to silence the voice of the federal courts in the inter-institutional dialogue. Miller supplements his research by loosely structured interviews with members of Congress, key congressional staff, federal judges, judicial branch employees and lobbyists.
In the introduction, Miller lays out the governance as dialogue approach to understanding the complexity of the relationships between Congress and the federal courts. Miller also draws upon new institutionalism approaches in theorizing about how political actors view their institutional role, the culture of the institutions and institutional constraints on political behavior.
In chapter one, Miller presents a historical overview of conflicts between Congress and the federal courts from the Jeffersonian period to the Reagan Administration. He argues that strained relationships between Congress and the Supreme Court are not new. Miller highlights familiar episodes, including but not limited to the Jeffersonian attacks on the federal courts during the 1800s, Andrew Jackson’s refusal to follow Supreme Court decisions, the aftermath of the DRED SCOTT v. SANFORD (1857) ruling, Reconstruction era attacks, liberal attacks against Supreme Court economic conservatism during the LOCHNER era, FDR’s court packing plan, attacks against the Warren Court, and the Goldwater, Nixon, and Reagan assaults on so-called liberal, activist judges.
Chapter two presents an examination of regular interactions between Congress and the courts in the specific areas of confirmation of judicial nominees, appropriations for the federal judiciary (including salaries), changing the boundaries of the federal circuit courts, creation of new judgeships and congressional reactions to constitutional and statutory interpretation rulings. As one might expect, contentious confirmation battles best illustrate the tension underlying interbranch conflicts; however, Miller suggests that congressional use of its power of the purse potentially raises the greatest threat to judicial independence. [*165]
Chapters three, four and five unpack and reveal how judicial independence is threatened by Congress and interest groups. In chapter three, Miller argues that congressional-court interactions have entered a new phase in which courts are viewed as “pawns in the culture wars” (p.105). Miller singles out the Religious Right’s uncompromising and relentless attacks on the federal courts. The Religious Right is viewed as a politically powerful group that seems “to want to silence the federal courts in the inter-institutional constitutional dialogue, even though those courts are mostly populated with judicial conservatives” (p.133). According to Miller, the Religious Right has adopted a three-prong approach to changing the direction of the federal judiciary by (1) influencing the federal judicial selection process, (2) restricting the power of federal judges and to weaken the federal courts institutionally, and (3) bringing lawsuits designed to overturn objectionable precedents. Miller indicates that the anti-court rhetoric of the Religious Right is nothing new; but what is different today “is that the Religious Right is not only attacking specific judicial decisions with which they disagree; it is disputing the fundamental right of federal judges to make any policy decisions that deviate from a certain Religious Right orthodoxy” (p.113).
In chapter four, Miller focuses on the changes in the institutional culture of the House Judiciary Committee (HJC). The HJC was once considered protective of the federal courts; however, Miller explains that conservative Republicans on the committee have succeeded in using the HJC as the primary legislative vehicle for transforming the Religious Right’s agenda into anti-court legislation. The conservative “firebrands” on the committee are “motivated by more than just reelection concerns” (p.151). For Miller, “it appears that the policy-driven members of the House Judiciary Committee actually wanted to change the voice of the courts in the inter-institutional conversation” (p.151).
Chapter five focuses on three recent threats to judicial independence: court-stripping legislation, proposals for an inspector general for the federal judiciary, and impeachment threats. Miller uses the example of the Military Commissions Act of 2006 to illustrate congressional response to the Supreme Court’s decisions in HAMDI v. RUMSFELD (2004), RASUL v. BUSH (2004) and HAMDAM v. RUMSFELD (2006). Although Congress attempted to restrict the power of the federal courts’ jurisdiction in the detainee cases, the Supreme Court declared the Military Commissions Act unconstitutional in BOUMEDIENE v. BUSH (2008). Bills to create an inspector general, according to Miller, were introduced by the HJC when it was in control by the Republicans in an effort to attack the federal courts. The bills generated considerable opposition and were never voted on by the full House or Senate. Although threats to impeach sitting judges persist for political reasons, as Miller notes, their removal from the bench is extremely rare. Miller’s use of these three examples is meant to remind the reader that assaults on decisional and judicial independence persist.
Miller concludes his study by making a case for judicial independence based on three rationales. First, judicial [*166] independence guarantees the courts’ important role in the constitutional dialogue. Second, Miller argues that restrictions on judicial power must be guarded because “courts are necessary to protect human rights and other individual rights” against the tyranny of the majority (p. 203). Finally, Miller argues that the fact that courts make their decisions based on legal reasoning and legal analysis “is what makes the institutional judicial voice in the constitutional conversation so different from the voice of the purely political branches” (p. 206).
THE VIEW OF THE COURTS FROM THE HILL is clear in its purpose: to examine the many facets of contemporary interactions between Congress and the federal courts. Because the book is highly readable from start to finish, it is a valuable resource for undergraduate courses examining the federal courts, Congress, and interest group dynamics. The study does a fine job in describing the nature of congressional-court interactions, and it provides ample examples of attacks, albeit primarily from the right (which is defensible given that most of the contemporary criticisms or threats to judicial independence come from the right).
This study falls short of expectations for scholarship because it covers no new ground and it fails to engage the material critically. Judicial independence is one of those amorphous phrases that is often used in legal, academic and political discourse, but rarely is it operationally defined. Miller gives short shrift to defining the phrase, although he states that “Federal courts in the United States enjoy both decisional and institutional independence. Their decisions are not dictated by another branch of government, and the institution of the judiciary is separate and independent from the other branches of government” (p.28). Miller never explains why life tenure for federal judges and protections against salary diminution are not enough to ensure judicial independence. In addition, the historical and contemporary examples of threats to federal court independence undercut the force of Miller’s arguments. The evidence to date shows that verbal assaults, threats of impeachment, court-curbing legislation, court packing plans, threats to cut the federal judiciary’s budget, failure to increase the salaries of federal judges, or even overturning Supreme Court decisions by constitutional or statutory means have not fundamentally altered the federal courts’ role in our system of separated powers with checks and balances. It is important to emphasize that Miller does not argue in his book that institutional measures have weakened the independence of courts; he argues instead that they either have the “intent” of changing the relationship in our constitutional system of governance or that it is possible, under the right conditions, that these threats “may” weaken the voice of the courts. More systematic evidence is needed to support Miller’s claims that federal judges react to verbal assaults and institutional attacks lodged against them.
Miller’s book reads like an exposé on the Religious Right’s attack on the federal courts. Readers might agree with his observations and his conclusions about threats to judicial independence, but for a scholarly audience, more analysis and evidence are needed to buttress his arguments. Miller is correct [*167] to argue that federal judges themselves can do little to fend off these attacks given that they do not have a natural electoral constituency, but he does not delve enough into why the voices of the defenders of judicial independence are muted in this highly contentious debate. Do these criticisms suggest that we should be dismissive of Miller’s arguments about the threats to judicial independence from the right? I do not think so, especially given the hyper-partisanship, polarization and gridlock that currently grip Congress.
BOUMEDIENE v. BUSH, 552 U.S. (2008).
DRED SCOTT v. SANFORD, 60 U.S. (19 How.) 393 (1857).
HAMDAM v. RUMSFELD, 548 U.S. 557 (2006).
HAMDI v. RUMSFELD, 542 U.S. 507 (2004).
LOCHNER v. NEW YORK, 198 U.S. 45 (1905).
RASUL v. BUSH, 542 U.S. 466 (2004).
© Copyright 2010 by the author, Barbara L. Graham.