Judicial Power and Legislative Remedies

views updated

JUDICIAL POWER AND LEGISLATIVE REMEDIES

Article III of the Constitution states that "[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The Article itself fails to detail the nature and extent of the phrase "judicial Power." However, the Constitution, taken as a whole, is not so silent as to its meaning.

The Framers, borrowing from montesquieu the idea of separation of powers, believed that each of the branches had to have a discrete role if the overall government was to avoid tyranny. Each branch was to have specific functions and tasks that would prevent the acquisition of too much power by any one branch. Montesquieu, writing in The Spirit of the Laws, stated that "there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression."

The Constitution is more explicit in its explanation of legislative and executive powers. Article I, section 8, lists many of the specific powers to be exercised by Congress in carrying out its constitutional duties. Section 8 contains, among many duties, the power "to lay and collect Taxes, Duties, Imposts, and Excises … [t]o coin Money … [t]o establish Post Offices … [t]o raise and support Armies." Likewise, the executive powers described in Article II include the power to fill vacancies and to act as commander-in-chief of the armed forces.

Nevertheless, when one reviews the Constitution as a complete document and notes the placement of powers under specific articles, the power of the judiciary becomes something clear and distinct as well. That power is by nature a limited one. Publius wrote in the federalist #78, "Whoever attentively considers the different departments of power must perceive, that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous … [It] has no influence over either the sword or the purse, no direction either of the strength or of the wealth of society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment."

The debate concerning judicial power should not focus on judicial review. In fact, the question as to whether the Court should exercise judicial review is a moot one, at best. The writings of both The Federalist and the anti-federalists assumed that the Court would rule on matters of law to determine whether statutory law complied with the standards of constitutionality.

The nature of judicial power, however, remains a subject of debate in the political arena because the Supreme Court continues to expand its role by directly implementing specific public-policy choices. In doing so, it has employed such constitutional provisions as equal protection and due process in order to secure remedies in cases such as brown v. board of education (1954), which effectively overturned the separate but equal doctrine of plessy v. ferguson (1896). More recently, courts have begun to propose remedies that encroach on the powers specifically delegated to the legislative branch. In some cases, courts have formulated the exact legislative programs by which wrongs will be righted. Two cases from the 1989 term illustrate the difference between legitimate exercise of judicial power and encroachment on legislative prerogatives.

In Spallone v. United States (1990) the Supreme Court reversed, by a 5–4 vote, the civil contempt charges and fines imposed by a united states district court on the city council members of Yonkers, New York. The city had been found in violation of Title VIII of the civil right act of 1968 and the equal protection clause of the fourteenth amendment by "intentionally engag[ing] in a pattern and practice of housing discrimination." Chief Justice william h. rehnquist, writing the majority opinion, framed the question narrowly, asking "whether it was a proper exercise of judicial power for the District Court to hold petitioners, four Yonkers city councilmembers, in contempt for refusing to vote in favor of legislation implementing a consent decree earlier approved by the city."

The Supreme Court, concluding that the district court lacked authority to impose the contempt fines against the individual members of the city council, upheld the contempt fines levied against the city. With the question framed so narrowly, the five-Justice majority explained that "[t]he imposition of sanctions on individual legislators is designed to cause them to vote, not with a view to the interest of their constituents or of the city, but with a view solely to their own personal interest." In so doing, the district court jeopardizes the legitimate exercise of deliberation by representative institutions accountable to a legitimate constituency and removes the legislative immunity that is essential to enable elected representatives to consider the common good of the community.

Although the mounting fines against the city (nearly one million dollars a day) had forced the council to vote in favor of the housing plan, the members of the council still could have decided that it was in the best interest of the city to go bankrupt, thereby defying the court. However, when the individual members of the council were forced to vote under threat of personal financial catastrophe, they were no longer able to represent the interest of the community. This point is of great consequence. A legislative body must have a will of its own while working collectively (and even if at time in conflict) with the courts toward the implementation of the Constitution and laws passed pursuant to it.

The second recent Supreme Court case concerning the limits of judicial power is missouri v. jenkins (1990). In this case, a unanimous Court agreed that a federal district court had exceeded its authority when, in fashioning a remedy for school desegregation, it ordered an increase in a school district's property tax levy, even though the increase exceeded the limits imposed by state law. The majority opinion by Justice byron r. white, however, raises a serious question as to the limits of judicial authority. Justice White "agree[d] with the State that the tax increase contravened the principles of comity." But he went on to suggest that the district court, under the supremacy clause of the Constitution, could order the school district to levy taxes at the rate needed to pay for the desegregation remedy.

In a concurring opinion by Justice anthony m. kennedy , a four-Justice minority argued that the majority opinion's obiter dictum had endorsed "an expansion of power in the federal judiciary beyond all precedent." The minority argued that "while courts have undoubted power to order that schools operate in compliance with the Constitution, the manner and methods of school financing are beyond federal judicial authority." It was apparent from the majority's decision that there was a "fear that failure to endorse judicial taxation power might in some extreme circumstance leave a court unable to remedy a constitutional violation." But, as the minority noted, "this possibility is nothing more or less than the necessary consequence of any limit on judicial power."

Spallone and Jenkins are merely the most recent examples in a long history of judicial attempts to impose remedies on legislative bodies. With the growing reluctance of representatives to raise taxes and to fashion rules and laws to meet the costs of constitutional obligations determined by the courts, the conflict between the branches is sure to continue.

Thus, the basic question concerning the nature and extent of judicial power returns to the focus. Judicial power obviously is not the same as the power of the legislative or executive branches. The courts have the power to order officials to comply with the Constitution's demands; however, the extent of this judicial power is limited in scope. An extraordinary situation may arise in which a court is unable to enforce a judicial remedy—in effect lowering the status of the court, but granting courts unlimited remedial power derogates from the principle of representative government.

Jeffrey D. Schultz
(1992)