Checks and Balances: Congress and the Federal Courts
The most up-to-date version of this piece can be found in the Duke Law Scholarship
This essay was published as a chapter in Reforming the Supreme Court: Term Limits for Justices (Paul D. Carrington & Roger Cramton eds, Carolina Academic Press 2006). Its point is that Congress has long neglected its duty implicit in the constitutional doctrine of separation of powers to constrain the tendency of the Court, the academy and the legal profession to inflate the Court's status and power. The term "life tenure" is a significant source of a sense of royal status having not only the adverse cultural effects noted by Nagel, but also doleful effects on the administration and enforcement of law in the other federal courts for which the Court and Congress share responsibility. Fixing the superannuation problem will not fix everything, but it would be a benign step in the right direction. I will conclude by suggesting numerous related reforms that might help more, all of which have been proposed to Congress in times past. Perhaps legislation addressing the superannuation problem would make it more likely that other needed reforms might be achieved in the future, by Congress or by a judiciary more aware of its own frailties.
Date of Authorship for this Version
Carrington, Paul D., "Checks and Balances: Congress and the Federal Courts" (2008). Duke Law School Faculty Scholarship Series. Paper 138.