1702692880 美国最高法院通识读本 [:1702690387]

1702692881 美国最高法院通识读本 Chapter 6The Court and the other branches

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1702692883 To the extent that it conveys the image of the three branches of the federal government, each operating in its own sphere, the phrase“separation of powers” is misleading. A more accurate image is one of dynamic interaction, in which the Supreme Court is an active participant. Even when relations among the president, Congress, and the Court appear peaceful, there is often tension beneath the surface, reflecting not dysfunction so much as distinct institutional limits, perceptions, and responses to events. When relations deteriorate, as they have periodically, what starts as disequilibrium can take the form of a power struggle. Not only the Court but the judiciary as a whole is a player in interbranch relations, with significant tools at its disposal. Its challenge, its “abiding dilemma,”in the words of Stephen B. Burbank, a leading scholar of the judiciary, is “participating in a political system without becoming the victim of politics.”

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1702692885 As Burbank points out, relations between the branches are governed as much by norms and customs as by formal structures. The Constitution permits Congress to impeach and remove federal judges, for example, but the norm is that impeachment is reserved for criminal behavior or serious ethical lapses, and not for judicial rulings with which members of Congress disagree.

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1702692890 10. On January 14, 2009, six days before their inauguration, Presidentelect Obama and Vice President-elect Biden visit the justices in their private conference room. From left to right: the president-elect; Chief Justice John G. Roberts Jr., Justice John Paul Stevens; Justice Ruth Bader Ginsburg; Biden; Justice David H. Souter; Justice Anthony M. Kennedy; Justice Antonin Scalia; Justice Stephen G. Breyer. Absent are Justices Clarence Thomas and Samuel A. Alito Jr.

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1702692892 Cases that have placed the justices at odds with Congress or the White House provide a prism through which to examine the Court’s relationship to the other branches. There is inherent drama to a major Supreme Court case in which the powerful institutional actors include the Court itself. Some will emerge as winners and some as losers. But it is important to recognize that outside the courtroom, in less dramatic ways, the Court continually interacts with the other branches. The Court submits its annual budget request to Congress, and the justices take turns going before the relevant congressional subcommittees to testify about the Court’s fiscal needs. Congress determines the salaries of the justices and all federal judges. When John Roberts became chief justice, he made it a priority to persuade the president and Congress of the need for a long-deferred pay raise for federal judges, a plea that fell on deaf ears.

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1702692894 The attorney general, along with the chairmen and ranking members of the Senate and House Judiciary Committees, travel to the Court twice yearly to meet with the chief justice and members of the Judicial Conference. The agenda for these private sessions includes pending legislation and broader questions of policy. The Court in turn is invited every January to hear the president deliver the State of the Union message to a joint session of Congress. The appearance of at least some justices, if not the entire Court, at this event was once routine. But in January 2010, President Obama used the occasion to criticize the Court for a decision issued a week earlier that gave corporations an expanded right under the First Amendment to spend money on political campaigns. As the television cameras swung to the justices, Justice Alito was seen mouthing the words “not true” in response to the president’s characterization of the decision, Citizens United v. Federal Election Commission (2010). Chief Justice Roberts later wondered aloud whether justices should continue to attend, saying that he had found the scene “very troubling,” more like a “pep rally” than a state occasion. As the date for the 2011 State of the Union message approached, there was widespread speculation: would the justices come or would they stay away? Justice Alito chose to spend the day in Hawaii. But Chief Justice Roberts and five other members of the Court did attend, and the president greeted them as he walked past their seats to the podium.

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1702692896 While the State of the Union episode might be described as interbranch tension as melodrama, more serious concerns are presented by repeated efforts in Congress to strip the federal courts in general or the Supreme Court in particular of jurisdiction to decide specific kinds of cases. Southerners and other conservatives in Congress responded to the decisions of the Warren Court by introducing bills to strip the Court of jurisdiction over school desegregation, state legislative apportionment, and anti-Communist loyalty and security matters. Other targets of congressional anger and proposed jurisdiction-stripping have included cases concerning prayer and recitation of the Pledge of Allegiance in public schools, as well as public display of the Ten Commandments. In recent years, criminal sentencing has been a source of tension between Congress and the federal judiciary. Senior Republican members of Congress have accused federal judges of undue leniency in sentencing. In 2003 Congress enacted a law requiring federal courts to provide Congress with reports on sentences that fell below the range set by federal sentencing guidelines. Chief Justice Rehnquist denounced the measure, known as the Feeney Amendment, as “an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties.”

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1702692898 The Court’s exercise of judicial review is an ever-present and renewable source of interbranch tension. While the courtstripping efforts were responses to the Supreme Court’s constitutional rulings, Congress pushes back regularly and more productively against the Court’s statutory decisions. In the early 1990s, Congress responded sharply to the Court’s rightward turn in a series of civil rights cases decided several years earlier. Legislation enacted in 1990 and 1991 overturned more than a dozen Supreme Court decisions.

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1702692900 The first bill that President Obama signed into law after taking office in January 2009 was the Lilly Ledbetter Fair Pay Act, enacted to overturn a 2007 Supreme Court ruling in an employment discrimination case. The Lilly Ledbetter episode is a useful example of the way in which a Supreme Court decision can propel an issue onto the country’s political agenda as well as its legal one. Lilly Ledbetter was a supervisor in a tire factory, the only woman to hold that position. She learned only after she retired that for years she had been paid less than any of the men. She brought suit under Title VII of the Civil Rights Act of 1964, which bars discrimination in the workplace on the basis of race and sex. The statute requires a lawsuit to be filed within 180 days of a “discriminatory act.” Although the employer’s discrimination against Ledbetter had begun years earlier, her lawyers argued that she was entitled to pursue her lawsuit under an interpretation of the 180-day time limit asserted by the federal agency in charge of administering the statute. Under the agency’s “paycheck accrual”rule, the clock started to run again each time the employer issued a paycheck that reflected the discriminatory treatment. Most of the federal circuits had endorsed the agency’s interpretation, but the Atlanta-based Eleventh Circuit, which heard Ledbetter’s case, rejected the agency’s rule, overturning a $3 million jury verdict in her favor and dismissing the lawsuit.

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1702692902 In a 5 to 4 decision, Ledbetter v. Goodyear Tire & Rubber Co.(2007), the Supreme Court agreed. The majority relied on earlier Supreme Court decisions that had applied Title VII’s 180-day limit to other discriminatory actions in the workplace, including termination, failure to promote, and failure to hire. The same rule should apply in the “slightly different context” of unequal pay, Justice Alito wrote for the majority. For the dissenters, Justice Ginsburg objected that the context was in fact crucially different. She said that while termination and failure to hire or promote are public acts, easily ascertained, employees of most private companies have no way of knowing what their fellow workers are being paid. Because Ledbetter received periodic raises along with the other employees, Justice Ginsburg observed, she had no reason to suspect that by the end of her career, her pay was as much as 40 percent less than that of her male co-workers.

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1702692904 Justice Ginsburg took the unusual step of announcing her dissent from the bench. Her action raised the decision’s visibility, converting what might otherwise have been seen as a technical ruling about a rather obscure provision of employment law into a new front in an ideologically infused battle over civil rights and the future of the Supreme Court. Justice Alito, at the time the newest justice, appointed by President George W. Bush, had been on the bench for less than eighteen months. The justice he succeeded, Sandra Day O’Connor, would most likely have voted the other way, and the outcome would have been different. Democrats in Congress began an immediate effort to overturn the decision by amending Title VII. Republicans in the Senate blocked the amendment’s passage in the spring of 2008. Lilly Ledbetter, an accidental heroine if there ever was one, became a powerful symbol of all that progressives feared from the newly consolidated Roberts Court and from the prospect of a Republican victory in the 2008 election. In the summer of 2008, Ledbetter addressed the Democratic National Convention, winning pledges of a renewed effort in Congress. The momentum carried the bill through Congress and onto the new president’s desk.

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1702692906 During the term that followed the uproar over its Ledbetter decision, with the issue of employment discrimination suddenly prominent, the Supreme Court appeared newly solicitous of workers with job discrimination complaints. A majority ruled in employees’ favor in several cases.

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1702692908 The Ledbetter episode came and went quickly. It is entirely predictable that other discrete disputes over the intent of Congress and the meaning of federal statutes will similarly come and go in the future. But there exists a more profound constitutionally-based struggle between the Court and Congress over the boundaries of congressional lawmaking authority, with origins deep in the country’s history. While it flares up and then recedes periodically, this struggle has no apparent end. Perhaps it is hardwired into the constitutional design.

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1702692910 Two periods sixty years apart provide bookends to an account of deep conflict between the political branches and the Supreme Court in the modern era. The first was the struggle over the New Deal. During President Franklin D. Roosevelt’s first term, a conservative majority on the Supreme Court invalidated major portions of the new administration’s economic recovery program. The Court held that a dozen acts of Congress, including the National Industrial Recovery Act and the Agricultural Adjustment Act, were beyond congressional authority either to regulate interstate commerce or to provide for the general welfare. The time had come, Roosevelt declared, “where we must take action to save the Constitution from the Court.”

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1702692912 In early 1937, following his reelection, Roosevelt proposed the Judiciary Reorganization Bill, more familiarly known as his“court-packing plan.” Under this proposal, the president could appoint a new justice for every justice over the age of seventy who had not retired—six new justices, given the age of the incumbents. The proposal sparked enormous controversy and failed when the Senate Judiciary Committee rejected it. Yet because the Court quickly began to uphold key New Deal provisions, including the Social Security Act and the highly pro-labor National Labor Relations Act, Roosevelt is regarded as having prevailed. Not for almost sixty years, a period that witnessed a dramatic expansion of the federal government’s presence in American life, would the Supreme Court again invalidate an act of Congress on the ground that the legislation exceeded the congressional commerce power.

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1702692914 When the battle resumed in 1995, the Court’s target was an obscure federal statute that barred possession of guns near school buildings. Since every state had a similar law, the fate of the federal law, the Gun-Free School Zones Act, was of little moment. Nonetheless, the decision invalidating the statute, United States v. Lopez, ushered in the Rehnquist Court’s federalism revolution. Writing for the majority, Chief Justice Rehnquist said that to uphold the statute would be to blur the “distinction between what is truly national and what is truly local.” This analysis implied an end to the long period during which the Court permitted Congress to decide for itself whether the distinction between national and local mattered for any particular piece of legislation. The vote was 5 to 4, with the dissenters quick to point out the implications. Justice Souter warned that “it seems fair to ask whether the step taken by the Court today does anything but portend a return to the untenable jurisprudence from which the Court extricated itself almost sixty years ago.”

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1702692916 There followed, in quick succession, a series of closely divided decisions that constricted congressional authority not only under the Commerce Clause but also under the Fourteenth Amendment. Section 5 of the Fourteenth Amendment gives Congress “the power to enforce, by appropriate legislation, the provisions of this article”—namely, the guarantees of due process and equal protection provided by the amendment’s Section 1. The question that came to the fore as the federalism revolution of the 1990s proceeded was the meaning of “enforce” and the breadth of Congress’s Section 5 authority. Was Congress’s power limited to enforcing only those interpretations of due process and equal protection that had been adopted by the Supreme Court? Or did Congress have substantive authority to legislate on the basis of its own constitutional views?

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1702692918 This issue was joined in a dispute over protection for the free exercise of religion that first divided the justices and then became the source of conflict between the Court and Congress. In a 1990 decision, the Court had withheld protection from individuals who claimed that their religious beliefs required an exemption from a generally applicable law. In that case, Employment Division, Department of Human Resources of Oregon v. Smith, the Court ruled that American Indians who used the hallucinogenic drug peyote in religious rituals were not constitutionally entitled to unemployment benefits when they were fired for violating their employer’s rule against drug use.

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1702692920 Congress responded promptly by passing a statute, provocatively titled the Religious Freedom Restoration Act (RFRA). The new law provided that a statute that appeared neutral on its face could not be applied in a way that placed a burden on the practice of religion unless the government could show that the burden served a “compelling interest.” A Roman Catholic parish in Boerne, Texas invoked RFRA, seeking to demolish an old church that was protected under a historic preservation code in order to build a new and bigger one. The church argued that RFRA entitled it to an exemption from the code. In response, the city argued the Religious Freedom Restoration Act was unconstitutional. The Section 5 enforcement power entitled Congress to enact legislation to remedy a violation of a constitutional right, the city argued, but not to legislate a more expansive definition of the right itself than the Supreme Court had provided.

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1702692922 In a 6 to 3 decision, City of Boerne v. Flores (1997), the Supreme Court agreed with the city. Congress’s enforcement power was merely “remedial and preventive,” the Court said, rejecting “any suggestion that Congress has a substantive, nonremedial power under the Fourteenth Amendment.” The majority opinion, written by Justice Kennedy, struck a formal separationist tone.“When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is,” Justice Kennedy wrote, invoking the familiar words of Chief Justice Marshall in Marbury v. Madison. He concluded: “Broad as the power of Congress is under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance.”

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1702692924 The Rehnquist Court majority used similar interpretations of Section 5 and of the Commerce Clause to overturn other statutes, including the Violence Against Women Act, which permitted women who were victims of gender-motivated violence to sue their attackers in federal court (United States v. Morrison, 2000). The Court also ruled that states could not be bound, as employers, by the federal laws against employment discrimination, either on the basis of age (Kimel v. Florida Board of Regents, 2000) or on the basis of disability (Board of Regents of the University of Alabama v. Garrett, 2003).

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1702692926 Then in 2003, led by Chief Justice Rehnquist himself, the Court unexpectedly reversed course, turning back a similar constitutional challenge to the Family and Medical Leave Act.

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1702692928 The law required state employers, along with private employers, to give their employees time off to attend to family emergencies. States that failed to follow the law were not immune from suit, Chief Justice Rehnquist wrote for the majority. With this decision, Nevada Department of Human Resources v. Hibbs, the federalism revolution appeared to have run its course. But history teaches that the apparent hiatus in this particular aspect of the contest between the Court and Congress is only temporary. Whether “temporary”means years or decades is an open question.

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