Court Curbing in the United States

Efforts directed at constraining the influence of courts. Court “curbing” occurs because the courts make decisions that disturb other public officials or the public. If court decisions are sufficiently disturbing, one or another “curbing” initiatives may result. The courts, particularly the U.S. Supreme Court, are vulnerable to these initiatives because they are linked in a variety of ways to the other branches. The initiatives have two objectives. One is to apply enough political pressure to bring about a change in decisional behavior. The other, more extreme objective is to make structural adjustments to judicial institutions. These adjustments may keep the courts from being able to render certain kinds of decisions at all. Policy directions of the courts can generally be kept in check through the normal processes of judicial selection. Beyond that, the Congress determines the jurisdiction and size of federal courts. This is true even for the Supreme Court, where Congress has the authority to regulate or otherwise make exceptions to the Court’s appellate jurisdiction. These are potentially very effective court “curbing” methods. Moreover, the executive and legislative branches are often critical in securing compliance with court rulings. Finally, courts can be constrained by actions taken to directly nullify particular decisions. This often takes the form of statutory reversal, but the constitutional amendment process may be accessed for this purpose as well.

See Also

Constitutional Amendment (Judicial Effects and Policies) Court “Packing” (Judicial Effects and Policies) Statutory Reversal (Judicial Effects and Policies).

Analysis and Relevance

Court “curbing” is not a permanent condition. Indeed, the courts are normally headed in the same policy directions as the other branches, thus there is no need to “curb” them. Efforts to constrain the courts are usually prompted by substantial and rapid shifts in direction by the electorate, by the lack of turnover in incumbents, or a combination of the two. The court “packing” initiative of President Franklin D. Roosevelt is illustrative. Economic conditions during the Depression produced extensive political realignment. The priorities of the Hoover Administration were replaced by those of Roosevelt’s New Deal. A majority of justices on the Supreme Court did not reflect these same priorities. Conflict between the Court and other branches resulted. The problem was aggravated because none of the sitting justices left the Court during Roosevelt’s first term. Following his reelection, Roosevelt sought to “curb” the intransigent Court by addingjustices. He wanted to “pack” the Court with justices who would support New Deal legislation. Congress declined to adopt the plan to enlarge the Court. Although the initiative was not formally successful, subsequent decisions of the Court were more supportive of the New Deal, even without a change in Court personnel. Congressional control over jurisdiction can also be used as a means of court “curbing.” Because Congress has the authority to create all lower federal courts, it has complete control over the definition of the jurisdiction of any court it creates. If so inclined, Congress could keep lower federal courts from ruling on one or more issues, possibly the more controversial social issues such as the busing of school students. The Congress can also regulate the appellate jurisdiction of the Supreme Court. This approach has a downside because it might remove from the Supreme Court the ability to fashion doctrine that applies uniformly across the nation. Nonetheless, the Supreme Court’s appellate jurisdiction has been regulated. After the Civil War, for example, the Congress wished to keep the Court from considering the constitu-tionality of the Reconstruction Acts. It did so by withholding the Court’s jurisdiction over all habeas corpus actions. The Court itself upheld this congressional action in Ex parte McCardle (7 Wallace 506: 1869). Similar exceptions to the Court’s appellate jurisdiction have been proposed, but have not been formally adopted. Like other court “curbing” techniques, however, threatening jurisdictional changes conveys a political message. Occasionally, the Court’s response to these messages is to modify its own decisional behavior.

Notes and References

1. Definition of Court Curbing from the American Law Dictionary, 1991, California