When do lawmakers threaten judicial independence?

Professor Chemerinsky considers the concept of judicial independence in light of attempts to limit it, at both the state and federal levels.

The topic of judicial independence has received much attention in recent years. More of the attention has focused on judicial independence at the federal level than at the state level.

For instance, in 1997, the American Bar Association's blue ribbon Commission on Separation of Powers and Judicial Independence reported on the current threats to an independent judiciary.(1) The report focused virtually entirely on ensuring independence for federal judges.

Yet, the greatest threats to judicial independence are at the state level. The life tenure of federal judges provides them an independence that elected state court judges never can enjoy. Increasingly, state court judges are being targeted for particular rulings and are being ousted from office for their decisions.(2) Throughout the country, the costs of judicial elections are skyrocketing, requiring judicial candidates to raise growing amounts of money, especially from attorneys who may represent clients with cases that will come before the successful candidates, as well as from potential litigants themselves.

At the same time, legislatures are targeting courts and attempting, directly or indirectly, to exercise more control over legal decision making. Statutory caps on compensatory and punitive damages, sentencing guidelines, and laws dictating procedures in particular types of cases (such as the Prison Litigation Reform Act)(3) are all efforts by legislatures to control matters that had been previously left to judicial or juror discretion.

Not all legislative actions directed at the judiciary should be regarded as unconstitutional.(4) For example, Congress has set an amount-in-controversy requirement in diversity suits since the first judiciary act was passed in 1789, and state legislatures always have set salaries for state judges.

When, however, do legislatures go too far and impermissibly interfere with an independent judiciary? Specifically, which types of legislative actions exercising control over the judiciary should be regarded as permissible and which should be viewed as unacceptable or even unconstitutional infringements of judicial independence?

This article first seeks to identify the constitutional foundation for judicial independence so as to assess when legislative actions are unconstitutional. Second, it attempts to categorize the different types of legislative actions that might be regarded as a threat to judicial independence. Finally, it appraises the constitutionality of the different types of legislative action to answer the basic question: When do legislative actions infringe judicial independence?

The Constitution's framers were acutely concerned about judicial independence because of their experience with judges in the colonies who served at the pleasure of the king and were widely distrusted because of their lack of independence.(5) Article III's grant of life tenure to federal judges and its assurance that their salaries cannot be reduced embody the goal of creating an independent judiciary.

Yet, the Constitution does not create an entirely independent federal judiciary. The Constitution, in Article III, creates a Supreme Court, but merely gives power to Congress to establish lower federal courts.

Even as to the Supreme Court, Article III limits the Court's appellate jurisdiction to "such exceptions, and under such regulations as Congress shall make." Also, the Constitution grants Congress the power to impeach and remove federal judges for bribery, treason, and "high crimes and misdemeanors." As with all aspects of separation of powers, the U.S. Constitution creates both an independent and an interdependent judiciary.

The same, of course, is true in every state. Many of the states experimented in their initial constitutions with establishing all-powerful legislatures(6) as a contrast to an all-powerful executive, only to learn the truth of Thomas Jefferson's warning that "173 despots would surely be as oppressive as one."(7) By the middle of the 19th century, the various states were rewriting their constitutions to constrain legislative power and begin a march toward greater judicial independence.(8)

In discussing judicial independence, a distinction sometimes is drawn between "decisional independence" (the authority of an individual judge to decide a case solely on the basis of his or her judgment about the facts and law and without consideration of any other interests) and "institutional independence" (the insulation of the judiciary as a branch of government from control by the other branches of government).(9) For example, the need for judges to please voters in elections is seen as a serious threat to decisional independence, while a refusal by the legislature to fund the courts adequately would be a threat to institutional independence.

Although the distinction between decisional and institutional independence is often invoked, it adds little to the understanding of judicial independence. Fear of legislative reprisals by cutting off judicial funds may influence particular judges in specific cases and thus threaten both decisional independence and institutional independence. And the accountability of state judges at the polls creates a threat both to the independence of the entire judicial institution, as well as a risk to independence in particular cases.

A far more important distinction is to be drawn between judicial independence as a normative concept and judicial independence as a constitutional principle that can be protected from legislative actions. For example, voters could deny retention to judges because of controversial rulings or Congress could impeach and remove judges because of specific rulings. Both acts undoubtedly would pose grave threats to judicial independence but would likely not be held to be unconstitutional.(10)

When can legislative actions be challenged as unconstitutionally infringing judicial independence? At the outset, it must be emphasized that threats to judicial independence are not less important simply because they are not vulnerable to constitutional challenge.

As alluded to earlier, some of the greatest threats to judicial independence are the targeting of state court judges for specific decisions and the escalating costs of elections that cause judges to turn to attorneys and litigants for money. My focus, however, is on when legislative acts unconstitutionally interfere with the judicial branch. There are two constitutional foundations for judicial independence, and either might be violated by a legislative action.

First, separation of powers protects judicial independence. At the federal level and in every state, the judiciary is a coequal branch of government. Justice Lewis Powell explained that the doctrine of separation of powers can be violated in two ways: "One branch may interfere impermissibly with the other's performance of its constitutionally assigned function. Alternatively, the doctrine may be violated when one branch assumes a function that more properly is entrusted to another."(11)

Second, due process of law--both procedural and substantive--provides a basis for constitutional protection of judicial independence. Legislative actions that deny a meaningful hearing before a neutral decision maker violate procedural due process. The Supreme Court has long declared that the very essence of due process of law is a fair hearing before an impartial decision maker.(12)

Also, legislative actions that deprive people of liberty or property without adequate justifications deny substantive due process. Over a century ago, the Supreme Court declared that due process "is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any `due process of law,' by its mere will."(13)

Legislative actions that threaten judicial independence

I have identified eight types of legislative actions that can seriously threaten an independent judiciary, some of which may also be unconstitutional. Although this list is by no means exhaustive, it provides a starting point for analyzing when legislative actions may violate the Constitution.

1. Legislative actions that undermine the institutional functioning of the courts. The judiciary depends on legislatures for necessities essential for its operation. The most obvious example is funding.

If a legislature were to refuse to fund the judiciary entirely, or refuse to fund it adequately, the judiciary would be compromised in its ability to function. Judicial independence would be threatened especially if this were done in response to particular rulings, or even if the judiciary compromised its judgments merely due to serious fears that unpopular rulings might lead to such reprisals.

2. Legislation that dictates the result in particular cases. More than a century ago, in United States v. Klein, the Supreme Court held that Congress cannot constitutionally direct particular substantive results.(14) Klein arose during Reconstruction and concerned an 1863 statute providing that those whose property was seized during the Civil War could recover the property, or compensation for it, after proving they had not offered aid or comfort to the enemy. The Supreme Court had held that a presidential pardon fulfilled the statutory requirement of showing that an individual was not a supporter of the rebellion.(15)

On the basis of that decision and his presidential pardon, Klein won his case in the court of claims. The government appealed, however, and while the case was still pending, Congress adopted another statute(16) making a pardon inadmissible as evidence in a claim for return of seized property and providing further that a pardon, without an express disclaimer of guilt, was proof that the person aided the rebellion.

In those circumstances, the statute operated to deprive the federal courts of their jurisdiction over the claims, providing that, upon "proof of such pardon ... the jurisdiction of the court in the case shall cease, and the court shall forthwith dismiss the suit of such claimant."

The Supreme Court held that the statute adopted while Klein's case was pending was unconstitutional.

   It seems to us that this is not an exercise of the acknowledged power of
   Congress to make exceptions and prescribe regulations to the appellate
   power.... What is this but to prescribe a rule for the decision of a cause
   in a particular way? ... Can we do so without allowing one party to the
   controversy to decide it in its own favor? Can we do so without allowing
   that the legislature may prescribe rules of decision to the Judicial
   Department in cases pending before it? We think not.... We must think that
   Congress has inadvertently passed the limit which separates the legislative
   from the judicial power.(17)

Klein remains powerful authority that a legislature acts unconstitutionally if it commands that the judiciary decide a case in a particular manner. A legislature attempting to compel a particular case is doing nothing less than exercising judicial power, an authority that our system of separated powers denies.

3. Legislation that dictates procedures in particular cases and particular classes of cases. Rules of procedure at the federal level are adopted pursuant to a federal statute, the Rules Enabling Act.(18) In many states, court rules are embodied in or are created through a constitutionally mandated rule-making process that places exclusive rule-making authority in the state's highest court.(19)

Rules created pursuant to statute, however, can pose a serious threat to judicial independence when they target particular cases or classes of cases for treatment different from that afforded other cases. A legislature might, thus, try to control decision making by controlling procedures. In one example at the state level, the Ohio Supreme Court has invalidated, on constitutional grounds, statutes that overrode procedural and evidentiary rules.(20)

In another example, the proposed global tobacco settlement agreement would do this by precluding any class action suits or joinder of claims.(21) The agreement would also limit who could be plaintiffs in lawsuits by precluding actions by third-party payers such as insurance companies or union health and welfare funds under some circumstances.(22)

4. Legislation that restricts the jurisdiction of courts. The legislature can also attempt to control judicial decision making by restricting the authority of courts to hear particular types of cases.

Legislation of this kind, directed at the federal courts, has been advanced for years in response to major controversies. Altogether, since the 1940s, more than 100 bills have been introduced into Congress to restrict federal court jurisdiction over particular topics.(23)

For example, during the 1950s, after the Supreme Court invalidated some loyalty oaths for government workers and attorneys,(24) the Jenner-Butler bill(25) was introduced in the U.S. Senate to prevent review of state board of bar examiners' decisions concerning who could practice law in a state.

Similarly, during the 1980s, there were proposals in Congress to prevent federal courts from hearing cases involving challenges to state laws permitting prayer in public schools or restricting access to abortions.(26) The obvious purpose of these jurisdiction-stripping bills is to achieve a change in the substantive law by a procedural device. Proponents of the legislation would have preferred to overturn the court rulings in question by enacting constitutional amendments, but bills creating such amendments have not attracted sufficient strength in Congress to be forwarded to the states for possible ratification.

Unable to directly overrule the Supreme Court, opponents of these decisions believe that they might achieve a substantive change in the law by limiting federal court jurisdiction. Without lower federal courts or the Supreme Court to protect particular rights, the litigation would be entirely in state courts with no review in the federal judicial system.

Proponents of jurisdictional restrictions are hopeful that state courts, especially without the prospect of federal judicial oversight, will be more sympathetic to their causes and thus be more likely than federal courts to sustain state laws regulating abortion or permitting school prayers. Thus, the goal of federal jurisdictional restrictions is the "de facto reversal, by means far less burdensome than those required for a constitutional amendment, of several highly controversial Supreme Court rulings dealing with such matters as abortion, school prayer, and busing."(27)

5. Legislation that restricts remedies that can be imposed by courts. As long ago as the monumental decision in Marbury v. Madison, Chief Justice John Marshall declared that "the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury."(28) The same sentiment is found in the constitutional text of 39 states where the "right to a remedy" is explicitly protected.(29)

Even where legislatures do not restrict jurisdiction outright, they might attempt to limit judicial independence by limiting the remedies available for redress of proven violations of common law, statutory right, or constitutional rights. For example, many state legislatures have attempted to impose limitations on damages in particular types of cases, abolish joint and several liability, or abrogate the collateral source rule.

If the effect of such legislation is to prevent courts from providing an adequate remedy, or to create other obstacles to access to the courts, the judiciary is crippled in its ability to perform its core function. Certainly, a right without a remedy is but an illusion.

6. Legislation that limits the traditional discretion of courts. Federal courts long had substantial discretion in determining the punishment for federal crimes. The federal Sentencing Reform Act(30) and federal sentencing guidelines adopted pursuant to it(31) now dramatically limit the discretion of federal judges in imposing sentences in criminal cases. The limitations on damages alluded to above also restrict the traditional discretion of courts or of jurors who, in their role as fact finders, act as adjuncts of the courts.

7. Legislation that assigns nonjudicial functions to the courts. Legislatures may attempt to assign courts burdensome administrative tasks or responsibilities inconsistent with the judicial function. An early example appeared during the administration of President George Washington, when Secretary of State Thomas Jefferson asked the Supreme Court for its answers to a long list of questions concerning American neutrality in the war between France and England.(32)

The justices responded to President Washington, but declined to answer the questions asked. They explained that the constitutional separation of powers requirement would be violated if they were to give such advice to another branch of government.

Whether the legislature has unconstitutionally assigned nonjudicial tasks to the judiciary, however, depends on the specific facts of the case. Much more recently, in Mistretta v. United States, in upholding the placement of the Sentencing Commission within the judicial branch, the Court stated that "Congress may delegate to the judicial branch nonadjudicatory functions that do not trench upon the prerogatives of another branch and that are appropriate to the central mission of the judiciary."(33)

This, however, suggests that federal legislation assigning new duties to the courts is unconstitutional if it usurps the powers of another branch of government or interferes with "the central mission of the judiciary." The Court provided no criteria for assessing when this occurs.

8. Legislation that changes substantive law in response to judicial decisions. Legislatures might attempt to supplant common law principles with statutes dictating different results in future adjudications, or legislatures might respond to court rulings interpreting statutes by modifying the statutes. Such actions obviously seek to control judicial rulings in future cases.

In some instances, these modifications may be designed to bring a statute into compliance with constitutional requirements when a court has invalidated a prior version of the statute. No intrusion on judicial independence occurs by such good faith response to a judicial ruling.

Which legislative actions infringe judicial independence?

Violations of separation of powers

In analyzing this question, three distinctions are key.

1. Past versus present. First, it is necessary to distinguish between statutes dictating different results in particular cases that were decided in the past or that are now pending in the courts and statutes that will change the substantive law in the future. The former, but not always the latter, should be regarded as violating a separation of powers requirement.

If the legislature disagrees with a judicial interpretation of a statute, it can modify the statute to reflect its intent. These legislative actions are generally within the legislature's province. The extent of that province, however, is often overlooked or misunderstood by courts.

The recent decision in Caulk v. Superior Court(34) illustrates this problem at the state level. The California Welfare and Institutions Code required that county governments provide eligible individuals needed food, clothing, shelter, and medical care. In an earlier decision, the court of appeal interpreted a specific provision of the code as relieving the duty of counties to provide medical care in certain circumstances not relevant to the present discussion.

The state legislature then enacted a statute in response to the court's initial decision, seeking to make it clear that county governments in fact had the duty to provide such care. The California Court of Appeal declared that the new statute constituted an ultra vires attempt to "instruct the judicial branch in the proper interpretation of a statute."(35) This seems wrong; the legislature can revise its own statutes to make its intent clear.

The same problem exists at the federal level, as illustrated by a recent Supreme Court decision.(36) In 1991, in the Lampf case, the Court had ruled that actions brought under [sections] 10(b) of the Securities Exchange Act of 1934(37) and the Securities and Exchange Commission's Rule 10(b)(5) must be brought within one year of discovering the facts giving rise to the violation and within three years of the violation.(38) Then, Congress amended the law to allow cases to go forward that had been filed before the Lampf decision took effect --if they could have been brought under the prior law.

In Plaut v. Spendthrift Farm, Inc., the Supreme Court declared the amended statute unconstitutional as violating the separation of powers doctrine.(39) Justice Antonin Scalia wrote that the Constitution "gives the federal judiciary the power, not merely to rule on cases, but to decide them."(40)

Because the "judicial power is one to render dispositive judgments," he reasoned, the federal law "effects a clear violation of the separation of powers."(41) The Court held the statute unconstitutional on the ground that, in effect, it overturned a Supreme Court decision and gave relief to a party that the Court had said was entitled to none.

The difficulty with Justice Scalia's analysis is that Congress always has the ability to respond to the Supreme Court's interpretation of a statute by amending the law in question. The Court was properly concerned that Congress was reinstating cases that had been dismissed by the judiciary, but it is not clear that Congress cannot give individuals a cause of action, even if the courts have previously ruled that none existed.

For example, if the Court ruled that a group of plaintiffs could not obtain relief under a particular civil rights law, Congress surely could amend the law to provide relief in the future and could entertain private legislation to right past wrongs. Critics of Plaut argue that that was exactly what Congress did with regard to the Securities Exchange Act following the Supreme Court's ruling in Lampf.

Thus do legislatures retain control over statutes. They also wield substantial, but not unlimited, authority over the common law.(42) If a legislature dislikes a judicially created common law rule, it can replace or modify the common law with a statute, but only within constitutional limitations. For example, due process requires that a traditional common law cause of action may be abrogated only if a reasonably adequate alternative is available to vindicate the rights at stake.(43)

2. Jurisdiction versus discretion. A second distinction must be drawn between laws restricting jurisdiction and laws restricting judicial discretion.

Legislatures can narrow the range of judicial discretion so long as they do not dictate results in particular cases or violate due process. The federal sentencing guidelines undoubtedly restrict judicial discretion, but that does not make the guidelines unconstitutional.

Prescribing the punishment for a crime always has been a legislative prerogative. There is no violation of separation of powers if the legislature chooses to be more specific about the extent of punishment, even if, in so doing, it leaves judges less discretion.(44) However, where a restriction on discretion impinges on the fundamental fairness of a trial, a constitutional violation may occur.

Similarly, not all restrictions on jurisdiction are unconstitutional. As mentioned earlier, Congress always has imposed amount-in-controversy requirements, and states always have had courts of limited jurisdiction. But restrictions on jurisdiction may become unconstitutional, as argued by the late Professor Henry Hart a half century ago, when they compromise the "essential functions" of a court. In a famous article written as a dialogue, Hart said that Congress's power to prescribe exceptions to the Supreme Court's jurisdiction "must not be such as will destroy the essential role of the Supreme Court in the constitutional plan."(45)

What is included in this "essential role" that is so protected? The Court's essential function of ensuring the supremacy of federal law could be undermined if Congress were to restrict the Supreme Court's jurisdiction. States could ignore Supreme Court precedents with impunity, even though they remained the law of the land, and thus make state law supreme over federal. If such were the case, the notion of a national Constitution with uniform meaning throughout the country would be lost.

Also, the Court's essential function in checking the legislature would be lost if Congress could enact a statute immunizing the law from judicial review. The power of the federal courts to review the constitutionality of federal statutes, established in Marbury v. Madison, would be largely meaningless if Congress could enact unconstitutional laws and then restrict jurisdiction to prevent their review by federal courts.(46)

3. Result versus procedure. A third important distinction must be drawn between laws dictating results and those dictating procedures. As discussed earlier in this article, United States v. Klein clearly and correctly holds that the legislature cannot direct the result in a particular case.

In some states, the legislature has no power over procedure; its authority in other states remains substantial. However, the separation of powers doctrine is surely offended if the legislature uses this authority to control effective access to the courts, create impossible burdens on parties, or dictate the results in particular cases or classes of cases.(47)

At the federal level, a strong argument can be made that provisions of the Prison Litigation Reform Act are unconstitutional on this basis. The statute, in part, requires that federal courts terminate consent decrees entered in litigation concerning prison conditions where relief was granted in the absence of a finding that it was the minimum appropriate relief.

For that reason, the U.S. Court of Appeals for the Ninth Circuit recently declared the act unconstitutional, explaining that "Congress, in violation of the Constitution, has reopened the final judgments of the federal courts and unconditionally extinguished past consent decrees affecting prison conditions."(48)

Violations of due process

Procedural due process requires notice and a fair hearing before a person's life, liberty, or property is deprived. Legislative actions that serve to deny individuals their life, liberty, or property without a fair hearing thus violate the Constitution. Substantive due process requires that all government actions are justified by a sufficient purpose. Arbitrary government actions infringe substantive due process.

Courts have struggled with what this means in terms of legislative actions that eliminate or otherwise burden a person's access to the courts. Where, for example, the statute implicates other constitutional provisions, such as the right to trial by jury, courts have used substantive due process to strike down the law.(49) Where the process due is procedural in nature, courts have split their decisions.

Although there also is substantial authority rejecting the notion that restrictions on recovery deny due process, the Supreme Court has expressed that "no person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit."(50) Yet, in the same case, the Court strongly suggested that a state might not, "without violence to the constitutional guaranty of `due process of law,' suddenly set aside all common law rules respecting liability ..., without providing a reasonably just substitute."(51)

The major recent case evidencing this duality of views is Duke Power Co. v. Carolina Environmental Study Group, Inc.,(52) which involved provisions of the Price-Anderson Act. The relevant part of the act limits the aggregate liability of a utility for accidents at nuclear power plants to $560 million per incident.

The challengers argued that the limitation on liability violated due process because the Due Process Clause "protects them against arbitrary governmental action adversely affecting their property rights and that the Price-Anderson Act ... constitutes such arbitrary action."(53) The Court rejected the due process objection to the limitation of liability:

   Our cases have clearly established that "[a] person has no property, no
   vested interest, in any rule of common law." ... The Constitution does not
   forbid the creation of new rights, or the abolition of old ones recognized
   by the common law, to attain a permissible legislative object ... despite
   the fact that "otherwise settled expectations" may be upset thereby.(54)

Still, without determining that it was a necessary prerequisite for its decision, the Court went out of its way to note that the act provided a substantial and adequate quid pro quo for the rights it displaced.(55) In so holding, the Court found the act similar to workers' compensation statutes that abolish negligence liability and certain damages for employees while entitling workers to compensation for economic losses without regard to fault, providing a reasonably equivalent quid pro quo.(55)

Although the issue of whether the Due Process Clause requires the substitution of a reasonable alternative remedy remains unsettled at the federal level, there is state constitutional precedent, consistent with Professor Thomas Cooley's authoritative 19th-century treatise,(57) that holds it a necessary element of due process.(58)

The argument is that a claim for recovery is a property interest under the Due Process and Takings Clauses and that a government action depriving a person of such a claim must meet the test of the Due Process Clause and be accompanied by just compensation. Mullane v. Central Hanover Bank & Trust Co. held that terminating claims of possible beneficiaries of a trust required notice and a hearing because the claims were property protected under the Due Process Clause.(59)

The Supreme Court, in Logan v. Zimmerman Brush Co., has declared:

   [A] cause of action is a species of property protected by the Fourteenth
   Amendment's Due Process Clause.... The Court traditionally has held that
   the Due Process Clause protects civil litigants who seek recourse in the
   courts, either as defendants hoping to protect their property or as
   plaintiffs attempting to redress grievances.(60)

In Logan, an employee claimed that he was terminated from his job because of a physical disability. He challenged his firing through the proper state administrative agency, but the agency negligently failed to hold a hearing within the statutorily prescribed time limit. The employer secured a dismissal of the plaintiff's claim with prejudice. The Court concluded that the dismissal denied the defendant a property interest without due process.

The Court emphasized that under well-established law, a property interest exists where an individual has an "entitlement" grounded in state law.(61) The argument is that state law has created an entitlement in providing a reasonable expectation for tort law recovery for injuries.

Indeed, in Martinez v. California, the Court accepted that "arguably" a state tort claim is a "species of `property' protected by the Due Process Clause."(62) As the Court concluded in Logan: "As our decisions have emphasized time and again, the Due Process Clause grants the aggrieved party the opportunity to present his case and have its merits fairly judged."(63)

Lower courts, too, have recognized a property interest in claims for recovery of injuries. The Ninth Circuit, for example, has stated: "There is no question that claims for compensation are property interests that cannot be taken for public use without just compensation."(64)

Closely related, it can be argued that there is a liberty interest in--even a fundamental right to--access to the courts. The Supreme Court has spoken of "the fundamental constitutional right of access to the courts."(65) The Court long has said that the right to be heard in court is protected by the First Amendment's Petition Clause(66) and an essential aspect of due process.(67)

For example, in Windsor v. McVeigh, in 1876, the Court spoke of the right to be heard as a principle that "lies at the foundation of all well-ordered systems of jurisprudence" and that was "founded in the first principles of natural justice."(68) Yet, despite this language, there is strong authority, described above, that the legislatures violate due process when they preclude recoveries for injuries. Caps on compensatory and punitive damages are constitutionally suspect if they prevent individuals from receiving adequate remedies for the violation of their rights.

Essential component

The concept of "judicial independence" has enormous rhetorical force. An independent judiciary is widely and correctly regarded as an essential component of American government.

Yet, clashes between the legislative and judicial branches over the scope of their respective spheres are inevitable and have been apparent since the beginning of our constitutional system of government. The difficulty is to discern the difference between those impingements on judicial independence that violate constitutional principles and those impingements that otherwise limit the completeness of that independence but do not rise to a constitutional violation.

While some of these differences are apparent and easily recognized, there are times when the line between the two is rather indistinct. Moreover, when legislative action has the effect of burdening the essential functions of our courts, an otherwise legitimate legislative act can cross the line into unconstitutionality because of the doctrine of separation of powers.

Notes

(1.) AN INDEPENDENT JUDICIARY: REPORT OF THE ABA COMMISSION ON SEPARATION OF POWERS AND JUDICIAL INDEPENDENCE (1997).

(2.) Stephen B. Bright, Political Attacks on the Judiciary, 80 JUDICATURE 165, 166-69 (1997); see also Penny J. White, An America Without Judicial Independence, 80 JUDICATURE 174 (1997).

(3.) 18 U.S.C. [sections] 3626 (1997); 28 U.S.C. [sections] 1915 (1996); 42 U.S.C. [sections] 1997(e) (1996).

(4.) See, e.g., REPORT OF THE NATIONAL COMMISSION ON JUDICIAL DISCIPLINE AND REMOVAL 16 (1993).

(5.) See Charles Gardner Geyh, The Origins and History of Federal Judicial Independence, in AN INDEPENDENT JUDICIARY, supra note 1.

(6.) See, e.g., Gordon S. Wood, Foreword: State Constitution-Making in the American Revolution, 24 RUTGERS L.J. 911, 916-17 (1993).

(7.) THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA 157 (1781; W. Peden ed., 1954).

(8.) See, e.g., ILL. CONST. (1848), IND. CONST. (1851), and OHIO CONST. (1851).

(9.) See Deanell Reece Tacha, Independence of the Judiciary for the Third Century, 46 MERCER L. REV. 645 (1995).

(10.) The Supreme Court has held that the challenge of a former federal judge to the impeachment and removal process posed a nonjusticiable political question. See Nixon v. United States, 506 U.S. 224 (1993).

(11.) Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 963 (1983) (Powell, J., concurring).

(12.) See, e.g., Gibson v. Berryhill, 411 U.S. 564 (1973).

(13.) Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1856).

(14.) 80 U.S. (13 Wall.) 128 (1872).

(15.) United States v. Padelford, 76 U.S. (9 Wall.) 531 (1870).

(16.) Act of July 12, 1870, 16 Stat. 235, ch. 251.

(17.) 80 U.S. 128, 146-47.

(18.) 28 U.S.C. [subsections] 2071-2077 (1994).

(19.) See, e.g., OHIO CONST. art. IV, [sections] 5(b), which provides that the "supreme court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right" and that "[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect."

(20.) Hiatt v. Southern Health Facilities, Inc., 626 N.E.2d 71 (Ohio 1994); In re Coy, 616 N.E.2d 1105 (Ohio 1993).

(21.) State Tobacco Information Center, Proposed Resolution: Settlement Terms, [sections] VIII.B.2 (accessible through WESTLAW's "TOBACCONEWS" database or at http://stic.neu.edu/settlement/6-20-settle.htm).

(22.) Id. [sections] VIII.B.5.

(23.) PAUL M. BATOR ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 377 (3d ed. 1988).

(24.) See, e.g., Schware v. Board of Bar Examiners, 353 U.S. 232 (1957); Konigsberg v. State Bar, 353 U.S. 252 (1957).

(25.) S. 3386, 85th Cong., 2d Sess. (1958).

(26.) See, e.g., S. 158, 97th Cong., 1st Sess. (1981); H.R. 3225, 97th Cong., 1st Sess. (1981) (bills restricting federal court jurisdiction in abortion cases); S. 481, 97th Cong., 1st Sess. (1981); H.R. 4756, 97th Cong., 1st Sess. (1981) (bills restricting federal court jurisdiction over cases that involve voluntary school prayers).

(27.) Laurence H. Tribe, Jurisdictional Gerrymandering: Zoning Disfavored Rights out of the Federal Courts, 16 HARV. C.R.-C.L.L. REV. 129, 129-30 (1981).

(28.) 5 U.S. (1 Cranch) 137, 163 (1803).

(29.) See, e.g., TENN. CONST. art. I, [sections] 17; William C. Koch, Reopening Tennessee's Open Courts Clause, 27 MEM. L. REV. 333 (1997).

(30.) Federal Sentencing Reform Act of 1984 (Pub. L. No. 98-473, 98 Stat. 1987) (codified at 18 U.S.C. [sections] 3551).

(31.) 28 U.S.C. [sections] 994(a)-(y) (1994). The placement of the Federal Sentencing Commission within the judicial branch (see next subsection) was a related development.

(32.) See BATOR ET AL., supra note 23, at 65-67 (reprinting the correspondence between Jefferson and the Supreme Court).

(33.) 488 U.S. 361,388 (1989).

(34.) 71 Cal. Rptr. 2d 904 (Ct. App. 1998), review granted, 955 P.2d 450 (Cal. 1998).

(35.) Id. at 906.

(36.) Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).

(37.) 15 U.S.C. [sections] 78j(b) (1988 ed. Supp. V).

(38.) See Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991).

(39.) The Court acknowledged that Hayburn's Case, 2 Dall. 409 (1792) (holding that Congress could not vest review of decisions of Article III courts in officials of the executive branch), was distinguishable. Plaut, 514 U.S. 211, 218.

(40.) Id. at 218-19.

(41.) Id. at 219, 225.

(42.) Wisconsin is the only state giving its legislature plenary power over state common law. See WIS. CONST. art. XIV, [sections] 13.

(43.) The paradigm example is probably the universal creation of state workers' compensation plans with the concomitant extinguishing of the right to jury trial in workplace injury cases. The guarantee of scheduled benefits for employment-related injuries is a substantial quid pro quo given the uncertain outcome of trial in court. See Berry v. Beech Aircraft Corp., 717 P.2d 670, 677 (Utah), amended, 1985 Utah LEXIS 1003 (Utah 1985).

(44.) Mistretta, 488 U.S. 361,388.

(45.) Henry M. Hart Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1402 (1953).

(46.) Such a limitation on the courts has been advanced by former federal judge Robert Bork. ROBERT H. BORK, SLOUCHING TOWARDS GOMORRAH: MODERN LIBERALISM AND AMERICA 117 (1996).

(47.) See, e.g., Best v. Taylor Mach. Works, 689 N.E.2d 1057 (Ill. 1997).

(48.) Taylor v. United States, 143 F.3d 1178, 1181 (9th Cir. 1998).

(49.) See, e.g., Plumb v. Fourth Judicial Dist. Court, 927 P.2d 1011, 1016-20 (Mont. 1996)(striking down on substantive due process grounds a revised version of a law establishing an "empty chair" defense, the previous version of which had been struck down in Newville v. State Dep't of Family Servs., 883 P.2d 793 (Mont. 1994)).

(50.) New York Cent. R.R. v. White, 243 U.S. 188, 198 (1917).

(51.) Id. at 201.

(52.) 438 U.S. 59 (1978).

(53.) Id. at 69.

(54.) Id. at 88 n.32 (citations omitted).

(55.) Id. at 88. (56.) Id. at 93 (citing New York Cent. R.R., 243 U.S. 188).

(57.) THOMAS M. COOLEY, ATREATISE ON THE CONSTITUTIONAL LIMITATIONS 351 (5th ed. 1883).

(58.) See, e.g., Boswell v. Phoenix Newspapers, Inc., 730 P.2d 186 (Ariz. 1986) (en banc); Ecker v. Town of West Hartford, 530 A.2d 1056 (Conn. 1987); Bonin v. Vannaman, 929 P.2d 754 (Kan. 1996); Berry, 717 P.2d 670.

(59.) 339 U.S. 306 (1950).

(60.) 455 U.S. 422, 428-29 (1982).

(61.) Id. at 430; Board of Regents v. Roth, 408 U.S. 564, 576-78 (1972).

(62.) 444 U.S. 277, 281-82 (1980).

(63.) Logan, 455 U.S. 422,433.

(64.) In re Aircrash in Bali, Indon., 684 F.2d 1301, 1312 (9th Cir. 1982).

(65.) Bounds v. Smith, 430 U.S. 817, 828 (1977), overruled in part by Lewis v. Casey, 518 U.S. 343 (1996).

(66.) Brotherhood of R.R. Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 7 (1964).

(67.) In re Murchison, 349 U.S. 133, 136 (1955).

(68.) 93 U.S. 274, 277, 280 (1876); see also Hovey v. Elliott, 167 U.S. 409, 417 (1897).

Erwin Chemerinsky is Sydney M. Irmas Professor of Law and Political Science at the University of Southern California Law School in Los Angeles. Professor Chemerinsky delivered this paper to the Roscoe Pound Foundation Forum for State Court Judges in Washington, D.C., in July.