Term Paper on "Autonomy of the Law"

Term Paper 8 pages (2727 words) Sources: 1

[EXCERPT] . . . .

Autonomy of the Law

The executive, legislature and judiciary are the three branches of the national government in United States. Speaking on the occasion of 2003 Law-Day, President Bush highlighted the independence of the judiciary as an important pillar of the administrative system. He said, "Our constitutional system of separation of powers places careful limits on the powers of judges and separates the responsibilities of making laws and interpreting laws between the Legislative and Judicial branches. Independent Federal judges have the autonomy to make decisions and interpret the law unfettered by outside influences. In this way, we are assured that our laws will be interpreted justly and applied with uniformity."

The Judiciary has achieved its present autonomy by careful use of its powers and diligently guarding its independence. Judiciary cannot avoid being embroiled in political squabbles that have threatened its independence in the past and continues to this day.

On 29th June 2006, Supreme Court struck down the military commissions established by President Bush to try suspected Al-Qaeda terrorists. The court determined that the commissions outlined by President Bush were neither authorized by Federal Law nor by military necessity. In doing so the justices had to brush aside the executives' pleas to not let down the commander-in-chief (the President) during wartime. The process of approving the judges' appointment has become a political football where judges views on certain major ideological points threaten to de-rail judges' approval by the Congress.

In 1800s when the boundaries of authority for various arms of government were being established, the courts also asserted themselves to establish if the courts were entitled to have a say in matters not considered in their jurisdiction till then. In the Marbury v. Madison [Marbury v. Madison, 1803] case Chief Justice Marshall established that the courts had the power of judicial review. He asserted that any statute that violated the constitution could not stand and the Supreme Court had a duty to reject any such statute. The courts decisions in later years gave the courts the power to undertake judicial review of the Acts of Congress, and Executive & Administrative orders. The power of over-ruling the Congress was unique to the United States at that time as even in the British legal system judges could not overrule acts of parliament on constitutional grounds.

The autonomy of the courts and establishment of the limits of authority of each arm of the government has been established over more than two hundred years. The beginning of the process can be traced to Chief Justice Marshall's period but President Roosevelt's desire to expedite his New Deal Plans provided the impetus for establishment of clear boundaries.

Roosevelt's New Deal Plan & Courts

Democratic President Franklin Roosevelt was immensely frustrated by the courts striking down many of his New Deal Acts. He believed that the conservative judges were harming his plans due to their attachment to outdated views. He decided to 'pack' the court with his own nominees. President Roosevelt sought approval from the Congress for a bill which would have allowed him to nominate a judge for each sitting judge who was over seventy. As six of the judges of the Supreme Court at that time were over seventy, the bill would have allowed Roosevelt to nominate six more judges to the Supreme Court.

Roosevelt was immensely popular among the masses but his plan was viewed as an attack on the autonomy of the courts. The plan drew huge opposition from the public and was rejected through a bipartisan opposition vote in the Congress. Roosevelt's 'Pack the Court' plan was defeated which showed how much importance 'the people' gave to the independence of the court. At about the same time the courts basically changed their attitude. The Courts decisions showed a '180-degree jurisprudential turn' [Hilbank, 1999]. The observers of the change associated this change in court's behavior as the result of Roosevelt's 'packing plan'. The Chief Justice at the time Justice Hughes strongly denied any such connection but the change was so marked that legal historians have tried to explain this change in jurisprudence as the result of Internal and external changes in ideas about law and society during the period of 19th and 20th century.

The Internalist Approach

Barry Cushman and Richard Friedman are considered the main advocates of the Internalist approach who argue that the constitutional changes during the New Deal were the result of doctrinal and intellectual causes. Cushman believes that the changes were a result of concerns internal to the workings of the court and jurisprudence. The changes in part were also influenced by the socio economic changes in the world of that period. Cushman believes that the internal changes were the result of three factors in jurisprudential philosophy. These included; republican fear of centralized authority; dividing law into public and private areas to prevent private interest from legislative corruption and the third emerged from a tradition of Lockean property rights (that rights in property are the basis of human freedom and government exists to protect them and to preserve public order) and freedom of contract. Cushman concluded that the demise of the public/private distinction was the main reason for the major changes in the New Deal constitutional period.

The Externalist Approach

Externalists approach recognizes that the decisions made by the Supreme Court justices are affected by the factors similar to those applicable to elected officials. The justices have to ask themselves of the political and social implications of a particular outcome of the case and how it matches with the pre-existing perspectives. William Leuchtenburg is a major advocate of externalist approach. He believes that major changes in jurisprudence came as a result of abrupt change. He acknowledges the New Deal laws as constitutional revolution. Leuchtenburg believes that the impact of court packing plan made some of the justices switch their stance towards the efficacy of governmental regulation and that explains the decisions of the court taking a '180-degree jurisprudential turn'.

Internalist approach appears to have more solid footing as it recognizes that the justices were merely changing their stance to the new political situation and the changes were a result of concerns internal to the workings of the court and jurisprudence. Disagreeing with Externalists approach [White, 2005] points out that an analysis of the decisions taken by justices Hughes, Robert, Cardozo and Stone over the whole decade of 1930s shows that they were attempting to develop a doctrinal posture that could accommodate some of the regulatory legislation of the New Deal laws. [White, 2005] believes that this gradual change in their policy favors the internalist approach.

Courts Handling of Commerce Power Issues

Commerce Clause is among the few powers delegated to the federal government under the Constitution. Interpretation of the commerce power clause determines the scope of federal legislative power. This clause effectively determines the balance of power between the states and federal government.

In today's vocabulary commerce means an economic activity but when the constitution was being drafted, the word had much wider and non-economic meanings too. Interpreting the role of commerce power of the constitution in the sense of interstate human interaction gives the Congress the powers to regulate non-economic relations with other countries.

The commerce power clause was interpreted differently by the Supreme Court in Roosevelt period. A number of New Deal measures initiated by Roosevelt were rejected by the executives were struck down by the court due to commerce clause on the grounds that 'they encroached upon interstate matters'. The Roosevelt Packing Plan did not succeed but it made the nine Supreme Court judges more conscious of their duties under the new economic realities. The internalist approach of doctrinal changes or the external pressure (externalist approach) helped the court switch their views and it is often described as the savior of nine judges; 'a switch in time that saved nine'. Decisions in cases such as Wickard v. Fulburn in 1942, the court declared that "the act of growing wheat on one's own land, for one's own consumption, affected interstate commerce, and therefore under the Commerce Clause was subject to federal regulation [Wikipedia, 2006]." Earlier in 1937 National Labor Relations Act was upheld on similar grounds.

The New Deal Plan had a great deal of impact on regulations related to commerce. The republicans and conservative judges were reluctant to let go of the old property rights and commerce. Nebbia case established that businesses being 'affected with a public interest' were not eligible for extensive police power regulations. The 1942 case of Wickard v. Filburn established that the distinction between direct and indirect effect of interstate commerce stood abolished. The courts thus removed themselves from reviewing police power and commerce power regulations allowing the states and Congress to regulate economic activity or redistribute economic benefits.

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