Written By The Honourable John Doyle AC QC
Professor Sam Issacharoff is a leading scholar of American Constitutional Law. In an interview recorded in September 2019 (here), Justice Gageler of the High Court of Australia invited Professor Issacharoff to reflect on the relationship between the Federal Judiciary of the United States and the Executive branch of Government of that nation. A summary of these reflections follows.
The process of appointment to the United States Supreme Court is notoriously politicised. Professor Issacharoff traces this back to the nomination of Robert Bork in 1986 and to the Bush/Gore election decision. As the potential to achieve political objectives through the Supreme Court became apparent, so the process of appointment has become more politicised.
The process of appointment to the other Federal Courts is essentially the same as for the Supreme Court. But, as Professor Issacharoff observes, there was little political involvement in the process relating to other Federal Courts. Apparently recommendations from the Senators of the candidates’ States would suffice. But things have changed. The increasing number of Federal Judges at the lower levels of the judiciary, and the increasing and relatively new involvement of the lower Courts in Constitutional cases has attracted “political attention” to the appointments to these Courts.
More and more the Republican and Democrat parties are using the lower Federal Courts to achieve political objectives, in particular to rein in the powers of the President when the President comes from the opposing party. Professor Issacharoff says that the inability or failure of Congress to control the Executive has left the Courts as the only resort, and has led to the politicisation of appointments to the lower Courts. There also seems to be a shedding of some traditional restraints on the involvement of the lower Federal Courts in Constitutional issues. While appointments at the higher level of the Federal Courts continue to be sound, at the lower level men and women, ill equipped for judicial office, are being appointed. The political parties are grooming preferred candidates for appointment.
The involvement of the lower Federal Courts in Constitutional cases has also led to cases coming forward in which the real issue is not “ripe for judgment”, the cases not having been handled through traditional channels better capable of ensuring that the real issues are properly presented to the Court.
According to the Professor, the nature of issues coming to the Supreme Court has changed. Few cases now turn upon the text of the Constitution. Cases are arising in which, in Professor Issacharoff’s terms, the “law has run out”, and the outcome of the cases depends upon Constitutional arrangements and practices worked out over time. In other words, increasingly controls over the Executive are not found in the Constitution, but in Constitutional arrangements and practices.
Historically, Congress was seen as the source of power in Government, and it was the Executive that needed protection from Congress. That was the premise of the founding fathers. Now things are reversed. The Congress is ineffective, and the Executive is dominant. Hence the resort to the Courts in an attempt to restrain the Executive, Congress failing to do so.
An interesting point made by the Professor is that a nine Judge Court means that a majority of one can determine the fate of a challenge to validity. This in turn puts a lot of pressure on the appointment process. One vote can tip the outcome of a case in the Supreme Court. If, for example, the Supreme Court comprised 10 or 12 Judges, a majority of two would be required. This might protect the political process if adopted, and appears to have some merit.
Professor Issacharoff does not regret the circumstance that the Supreme Court decides political issues. That is its role. Constitutional issues are frequently political. But “ideological drift” between the Democrat and Republican parties makes the issues more contentious, because of a lack of accepted common ground.
Professor Issacharoff says that the American approach to Constitutional Law is moving towards that of the United Kingdom Courts, the boundaries to Executive decision not being the text of the Constitution, but “settled Constitutional practice”. These calls for consideration of the manner in which the Executive has exercised the relevant power or function in the past lead to a process of decision making similar to that of the United Kingdom Courts.
A final point is that for 200 years the Supreme Court struck down laws relatively rarely. Then in about 1980 there was a change. The Court began to strike down laws more often. And now, shedding traditional restraints, the lower Federal Courts are striking down laws and granting injunctions in Constitutional cases. It is clear that this is not something that Professor Issacharoff regards with favour.
This is just a quick summary of what the Professor says. There is plenty of food for thought in his discussion with Justice Gageler. The whole discussion is well worth listening to. The interview was conducted for use at the National Judicial College of Australia (NJCA) program “Reflections on the Judicial Function”.