Congressional oversight (of the Executive) is dead; Long live congressional oversight (of the Judiciary)
By Lauren C. Bell
On August 8, 2018, sixteen organizations sent a joint letter to U.S. Senate Judiciary Committee chairman Charles Grassley and ranking member Dianne Feinstein, asking them to commit to equal access for all senators to documents from U.S. Supreme Court nominee Brett Kavanaugh’s tenure in the George W. Bush administration. The letter framed the request in the language of congressional oversight, noting: “Senator Grassley, we support you in your fight to ensure that all senators are able to conduct oversight of the executive branch and request information from federal agencies.”
A month later, as the public learned of allegations of sexual assault against Kavanaugh, the Senate Judiciary Committee slowed Kavanaugh’s near-certain confirmation to hold additional hearings on the nominee to the high court, delaying and possibly denying Republican senators an important political victory heading into the congressional midterms. Meanwhile, senators and interest groups on both sides of the nomination ramped up their rhetoric, revealing just how high the stakes surrounding confirmation to the Supreme Court are and the extent to which the public expects the U.S. Senate to do its due diligence when evaluating judicial nominees.
And the confirmation process is just one of the opportunities that Congress has to influence the work of the federal judiciary.
Judicial Branch Oversight
Congress frequently engages in efforts at political control of the judiciary. These efforts mirror, and often exceed, the same efforts Congress makes at executive branch oversight. Indeed, even as the contemporary Congress has come under fire for engaging in too little oversight of the executive branch, Congress has (mostly) quietly continued its steady review of judicial branch activities. So great is Congress’s ability to intervene in the affairs of the judicial branch that it is able to exercise far greater influence over the operations of the federal courts than it has influence over the executive branch. And yet, most oversight scholarship ignores the activities and impact of legislative scrutiny of the judicial branch.
In a recent analysis for the Wayne Law Review’s special issue on congressional oversight, I argue that there are two reasons that it is unfortunate that the literature on congressional oversight typically excludes Congress’ role in shaping the federal courts. First, the exclusion of these important activities from standard oversight analysis inhibits our ability to understand fully congressional oversight. Second, because of the failure to identify as oversight congressional monitoring of and intervention with the judicial branch, scholars have missed opportunities to apply theories of executive branch oversight to the judicial branch and to gauge the impact of oversight on the judicial branch.
Not only does the Constitution give Congress the explicit authority to create courts and establish their jurisdictions, but Congress is obligated by the Constitution, by law, and by its own rules to monitor judicial capacity, workload, decisions, staffing, discipline, and a host of other elements related to the federal courts. Congress authorizes (or doesn’t) new courts and judgeships and confirms (or doesn’t) judges to fill them; the national legislature also sets court budgets and judicial salaries. And Congress uses each of these processes to attempt to influence the work of the courts. For example, in 2007, the late Senator Arlen Specter took former Associate Justice Anthony Kennedy to task for the Supreme Court’s failure to televise its proceedings during a hearing nominally about increasing the judicial branch’s court security budget.
Judicial Decision Making
Judicial decisions also are not immune from congressional scrutiny. While there is congressional deference to the principle of judicial independence, that has the practical effect of meaning that there is no prior restraint by Congress on the court’s decision making in individual cases. But Rule X of the Rules of the House of Representatives includes the review of “court decisions” among House committees’ general oversight responsibilities. And Congress has found ways to intervene directly in judicial decision-making processes generally, even while avoiding intervention into specific cases.
For example, fed up with judges imposing widely disparate sentences for the same crimes, Congress in 1984 created the U.S. Sentencing Commission to standardize sentences nationwide. In upholding the constitutionality of the Sentencing Commission in Mistretta v. United States (1989), the U.S. Supreme Court affirmed the lower court’s decision that the Commission “should be judicially characterized as having executive branch status.” The U.S. Sentencing Guidelines allow for departures, but ultimately serve as a congressional check on judicial decisions in federal criminal cases.
Since Congress generally refrains from intervening proactively in individual judicial decisions, its members may seek to punish the courts for their decisions after the fact. For the Wayne Law Review’s congressional oversight issue, I compiled data on congressional responses to U.S. Supreme Court decisions for each of the last eight terms of the Court. The data show that Congress is attentive to the work of the Court, with Congress reacting publicly to one in every six Supreme Court decisions. Such reactions include efforts to override the Court’s decision through legislation, efforts to strip the Court of the jurisdiction to hear similar cases in the future, and even pre-emptive efforts to influence the outcome of high-profile cases that have been appealed to the Supreme Court. Over the same time frame, there have been 40 measures introduced in the House of Representatives aimed at stripping jurisdiction from the federal courts on issues such as voting rights, abortion, immigration, and marriage equality. One measure would have prohibited the federal courts from citing as precedent any of the Supreme Court’s decisions on the Affordable Care Act.
It might be tempting to dismiss congressional efforts at judicial branch oversight. After all, even if Brett Kavanaugh isn’t confirmed, the overwhelming majority of judicial nominees are, particularly when the President and Senate are controlled by the same party. And efforts to strip the courts of jurisdiction to hear cases are almost never successful.
Still, as the examples I cite above demonstrate, Congress is quite proactive at monitoring judicial branch staffing, budgets, decisions—and these are just a handful of examples of the ways in which Congress uses its institutional authority to influence the federal courts.
As I note in the Wayne Law Review, there is evidence that courts are responsive to the signals that Congress sends through its various oversight activities. To the extent that federal courts moderate their decisions in an effort to forestall congressional meddling in their activities, congressional oversight can be a powerful tool for reining in the courts. Incorporating the judicial branch in the conversation provides a fuller picture of Congress’s oversight priorities and capacity.
Lauren C. Bell is professor of political science and dean of academic affairs at Randolph-Macon College.