In a famous passage in The Federalist, Alexander Hamilton wrote of the federal judiciary that it would have
no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
If someone wrote these words today, he would be dismissed out of hand as totally ignorant of the practice of modern judges. Federal courts issue complex decrees that sometimes involve them in continuous oversight of government institutions such as schools and prisons. In connection with this task, they have ordered governments to impose taxes. They routinely use injunctions to enforce constitutional rulings and invoke their power to punish contempt of court in levying fines against recalcitrant officials. Moreover, under 42 U.S.C. 1983, they entertain lawsuits against officials for constitutional violations, which now are held to include failure to follow judicial doctrine, and under other provisions of the code they accept requests for declaratory judgments and entertain suits commenced on behalf of whole classes of people. At the level of the Supreme Court, they effectively set their own agenda each term by the wide discretion they exercise over what cases to hear. In short, though still without an armed force under their direct command, they certainly “influence” the state’s use of arms and fiscal power and take plenty of “active resolution.” They have, in short, acquired a good measure of force and will, and after their appointment, seem not to depend on the executive branch for anything at all that it might at its discretion withhold.
But Hamilton was right in characterizing the judicial power as it was understood in his day as involving “merely judgment.” Chief Justice John Marshall’s famous statement in Marbury v. Madison that “[i]t is emphatically the province and duty of the judicial department to say what the law is” meant not only that the judges have authority to pronounce what is law but also that they have, ordinarily at least, no other authority. The issue in Marbury, in fact, was precisely whether the Supreme Court has authority in the dispute at hand to issue an order to an executive official, and their judgment was they did not, and this despite the general principle that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Even today, as any landlord trying to collect arrears or any creditor trying to collect an unpaid debt soon discovers, getting a court judgment that one is owed a certain sum of money is not the same as getting the money: usually one has to initiate a separate process to enforce a judgment, and sometimes even a further process to see the subsequent court order is carried out. It is the business of the court to settle what is right in a dispute properly before it. To see that right is enforced is, or at any rate was, the business of someone else.
How did federal judges acquire the authority, not only to say what the law is, but to order others to act in a specific way in response? Mostly, I think, by federal statute, beginning with the Judiciary Act of 1789, of course, but most especially through a series of statutes in two eras. First was during Reconstruction, when Congress sought to empower federal judges to enforce federal law against recalcitrant state officials. Second, during the 1920s and 1930s, in the name of Progressive reform designed to increase the efficiency of federal legal process, extensive changes in how cases came to court radically altered how they could be disposed. While the process these statutes enabled is well-known – and, as might be expected, has developed as a result of further court decisions – there has been little appreciation in the scholarly literature of how procedural changes, initiated by statute, have transformed the judicial power and its role in the polity today. The question of the implementation of judicial decisions is raised from time to time – often in the context of lamenting the “hollow hope” of counting on courts to successfully effect policy change – but the question is not raised how changes in the process of implementation have changed judges’ views of what their function is.
Let me put this another way. In analyzing judicial power, one can look at how disputes come to court, how courts decide them, and how their decisions are made effective. Let’s call these three stages jurisdiction, interpretation, and implementation. In relation to the federal courts’ constitutional powers, almost all attention tends to focus on the middle term – how do judges interpret the Constitution, or more generally, what do they say the law is – while the first and third steps are overlooked. On the one hand, this makes a certain sense: If saying what the law is really is central to the judicial function, it naturally corrals the most attention. But on the other hand, it seems likely that how courts interpret the law is affected by the kind of disputes that come before them and by what they think the consequences of their judgments will be. If courts are interpreting the Constitution too freely, perhaps that is in part because they have been given the wrong kind of disputes to settle and granted the wrong kind of powers to act.
Now if one thing has become clear in disputes about constitutional interpretation over the past generation, it is that judges are not eager to be told how they ought to interpret the law, at least by other branches of government. This does not mean that they can claim to be exclusive interpreters of the Constitution; indeed, it has increasingly been recognized, both by scholars and by people active in politics and government, that in many instances other branches can and often must proceed to interpret the law without judicial guidance and may even, in certain circumstances, act on their own understanding even if that understanding is not fully in accord with the dicta of judges. Still, when judges resist being told by others what the law is, they are showing an appropriate sense of their own task, and when others acquiesce, they, too, are not necessarily acting foolishly. But the definition of jurisdiction and the action of implementation are not in the first place judicial functions, but rather, respectively, legislative and executive. Judges can make mistakes in interpreting the law, and there is no guarding against this by dictating interpretation. But perhaps they should not be led into the temptation to err by statutes that encourage political actors to bring policy disputes to court or that encourage judges to think they can issue commands instead of judgments in response. To be continued . . .