A Mere Machine: The Supreme Court, Congress, and American by Anna Harvey

By Anna Harvey

Introductory textbooks on American govt let us know that the excellent court docket is autonomous from the elected branches and that autonomous courts greater shield rights than their extra deferential opposite numbers. yet are those proof or myths?
In this groundbreaking new paintings, Anna Harvey studies proof exhibiting that the best courtroom is in reality terribly deferential to congressional personal tastes in its constitutional rulings. studying cross-national proof, Harvey additionally unearths that the rights protections we get pleasure from within the usa seem to be principally in view that we don't have an autonomous superb court docket. actually, we might most probably have even larger protections for political and monetary rights have been we to ban our federal courts from exercise judicial evaluate altogether. Harvey’s findings recommend that constitutional designers will be clever to heed Thomas Jefferson’s recommendation to “let mercy be the nature of the law-giver, yet permit the pass judgement on be a trifling machine.”

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Development economists studying judicial independence have suggested that independent judges may simply be relatively more protected from the pressures inducing legislators and executives to predate economic and political rights. Legislators and executives with uncertain tenures face incentives to give preferential treatment to their supporters, and to silence their opponents; these survival-directed incentives may induce them to expropriate private property and/or suppress dissent. 75 Importantly, this argument does not assume that judges sincerely prefer more robust rights protections than do legislators and executives.

The question of the independence of the federal courts would be settled. For any or all of these reasons, we could conclude that federal judges in the United States are free to decide cases independently of elected branch preferences. The point of this chapter is simply to suggest that we shouldn’t call it a day quite yet. While there is some suggestive evidence supporting each 35 36 SUPREME COURT, ELECTED BRANCHES, AND THE CONSTITUTION of these claims, this evidence is far from conclusive. While the Constitution’s text does provide federal judges with some protections from the elected branches, for example, it also appears to leave considerable room for elected branch majorities to punish divergence from and reward deference to elected branch preferences.

Moreover, the structure of the Constitution’s provisions regulating the federal courts may make it far easier for the elected branches to induce judicial deference than is commonly believed. There may be more periods of divergence between elected branch and judicial preferences than we have previously suspected. And the most frequently cited evidence in support of the claim that elected officials do not seek judicial deference, namely that the elected branches rarely attempt to check the federal courts, is consistent with multiple interpretations.

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