Topic: Checks and Balances & the Exceptions Clause
Senator: Brownback
Date: SEPTEMBER 14, 2005
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BROWNBACK: Let me take you to another area that's stewing here in legislative bodies, certainly, across the United States and, certainly, in Congress, and that's the issue of checks and balances of the court.
Any civics student can talk about checks and balances within the executive, the legislative and the judicial branch. And we all know that Congress, when it passes a bill, can be checked by a veto of the president. And we know the president's power can be checked by the power of the purse in the Congress -- those checks and balances. And when popularly elected branches of government enact bills contrary to the Constitution, the courts can strike the law down by exercising judicial review.
One curiosity, though, especially given the broad sweep of judicial power in America today and the angst that that stirs among so many people, is what check there is on the court and what checks there exist on the court. And it seems to me critical that we have this discussion at this point in time.
First check on the judiciary, of course, is the president's ability to populate the bench, of which you're a nominee, and our ability on advise and consent.
A greater problem arises once a federal judge is on the bench. And what's in Article 3, Section 1 -- and this is getting a lot of discussion now here in this body -- where judges hold office during good behavior -- which I know you will -- effectively have life tenure. But that's not really an effective check in the system.
There is also another area that you wrote about when you were working within the Reagan administration. That was the ability of Congress to limit the authority and the review of the courts of what you would have. And I want to look at that in particular.
It's the power to define jurisdiction that we would have. It's in Article 3, Section 2, and I just want to read this because I don't think it's well understood as the check and balance. And I want to get your reaction to it.
This is Article 3, Section 2: "In all cases affecting ambassadors, other public ministers, counsels and those in which a state may be a party, the Supreme Court shall have original jurisdiction" -- no question there.
Goes on: "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to law in fact with such exceptions and under such regulations as the Congress shall make."
BROWNBACK: That phrase, as you know, is known as the exceptions clause.
You wrote about this when you were in the Reagan White House, about this exceptions clause. And you stated this: "It stands as a plenary grant of power to Congress to make exceptions to the appellate jurisdiction to the Supreme Court. A clause by its terms contains no limit" -- these are your words -- and, quote, "this clear and unequivocal language is the strongest argument in favor of congressional power and the inevitable stumbling block that those who would read the clause in a more restrictive fashion."
Now, I understand that you also argued on policy grounds this is not a good idea for the Congress to do. But would you agree with those earlier statements that you made about the nature of this power being a plenary power of the Congress and stands as a clear standard in favor of the Congress to be able to limit the jurisdiction of the courts?
ROBERTS: Well, you know, Senator, that that writing was done at the request of the attorney general. And he asked me specifically to present the arguments in favor of that power.
He was receiving, from elsewhere in the department, a memorandum saying that this was unconstitutional, the exercise of that authority. He wanted to see the other view before making up his mind for the department. So I was tasked to present the arguments in favor of constitutionality.
And as you say, they focus and start with the language in the Constitution, the exceptions clause, which is as you read it. And I went on to explain that it had been interpreted, in the famous case of Ex Parte McCardle, around the time of the Civil War, which seemed to suggest that the framers meant what that language says on its face.
Also, though, a later case, United States against Kline, suggested that there were limits on the power of Congress in this area.
ROBERTS: It is a central debate among legal scholars, the scope of that authority.
The argument on the other side -- the one that the attorney general adopted, rather than the argument he asked me to present -- is that it is the essential function of the Supreme Court to provide uniformity and consistency in federal law. And that if you carve out exceptions in its core constitutional area, that you deprive it of that ability and that that itself violates the constitutional scheme.
It's an area in which most distinguished scholars line up on either side, because it does call into question basic relationships between the Congress and the courts.
BROWNBACK: Could that language be any clearer, though, in the exceptions clause? I mean, I understand how legal scholars maybe can debate what a single word means, but that language is pretty clear, isn't it?
ROBERTS: The argument on the other side says that it's intended to apply to -- well, for example, we have clear situations in the lower federal courts like the amount in controversy; those cases are excluded; you can have rules about timing, you know.
The question is whether it was intended to address core constitutional areas or simply more administrative matters. The argument on the other side says, if you get into the core constitutional areas, that undermines the Supreme Court's authority and that the framers didn't intend that.
BROWNBACK: Then what check is there on the court's power?
ROBERTS: Well, I think the primary check is the same one that Alexander Hamilton talked about in the Federalist Papers, because the exact argument was raised in the debates about the Constitution. People were concerned about a new judiciary. What was it going to do? They were concerned that it might deprive them of their rights.
And, of course, Hamilton's famous answer was, the judiciary was going to be the least dangerous branch because it had no power. It didn't have the sword. It didn't have the purse.
And the judges were not going to be able to deprive people of their liberty because they were going to be bound down by rules and precedents; they were going to just interpret the law. And if judges just interpreted the law, there was no threat to liberty from the judicial branch.
So I would say the primary check on the courts has always been judicial self-restraint and a recognition on the part of judges that they have a limited task, that they are insulated from the people.
They're given life tenure, as you mentioned, precisely because they're not shaping policy. They're not supposed to be responsive; they're supposed to just interpret the law.
BROWNBACK: And I guess that's the area that has so many people concerned, is that the judiciary does not show restraint, and judicial restraint is the limitation on the courts, such as in the takings clause debate we just had, really, where the court is saying, "Well, no, this is a broader power"; that if you don't restrain yourselves, then who does within this system?
BROWNBACK: Obviously, there's restraints on the Congress. There's restraints on the president. And we like that system; we want that check and balance system. I think the framers put that exceptions clause and other things in there for a clear purpose and for a clear reason.
But let me take you on to another area, because that one, I think, you're going to see a lot of action as you get pushing back and forth between the three branches of government, and a number of people feeling like the judiciary has not shown judicial restraint in recent years.
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