The Constitution establishes the judiciary as an independent, co-equal branch of the federal government. As a reciprocal check on this power, the Constitution also makes the judiciary accountable to the political branches by giving the political branches the powers to nominate and confirm federal judges as well as impeach and remove them for high crimes and misdemeanors, constitute the lower federal courts, regulate court jurisdiction, and make laws necessary and proper for the exercise of the foregoing powers, which includes the powers to fund and oversee court operations. This system of checks and balances purposely creates a tension between judicial independence and accountability that makes some interbranch friction inevitable. The key to managing interbranch friction and advancing the purpose of government is for each branch to refrain from pressing its powers to the utmost.

In the last 50 years, there has been a significant growth in the size and budget of the federal judiciary, required by the explosive growth in case filings and expansion of federal jurisdiction into matters previously handled by the state courts. At the same time, the federal judiciary has been called upon to decide cases dealing with contentious social issues. These developments have led to intensified Congressional oversight of the judicial function as well as the judiciary as an institution. Some of these forays into the judiciary's affairs, while constitutionally permissible, unnecessarily strain interbranch relations and test the line between accountability and independence; others have given rise to legitimate complaints that Congress is eroding the judicial process and threatening judicial independence.

Over the years, there have been many proposals to withdraw the jurisdiction of the federal courts in certain areas for the purpose of effecting change in constitutional law. In the 1950s, for example, bills were introduced in Congress to strip the federal courts of power to hear cases involving Communist charges. Some bills passed the House, but none succeeded in the Senate. During the 1980s, Congress debated and defeated multiple proposals to strip the federal courts of jurisdiction over cases involving controversial issues of the moment such as busing, abortion and school prayer. Frustrated by a string of defeats, proponents switched to pursuing constitutional amendments on these subjects in the early 1990s in an effort to "rein in" the federal judiciary.

These efforts, too, were unsuccessful, and court-stripping as a legislative tactic to reign in an activist judiciary returned in earnest starting in 2003. During the 108th and 109th Congresses. legislators angered by court decisions involving socially-charged issues such as recitation of the Pledge of Allegiance, religious displays on government property, state sodomy laws, eminent domain and the execution of juveniles, to name a few, unsuccessfully introduced dozens of court-stripping bills. They also tried to curtail the discretion of judges through other legislative vehicles, such as prohibiting citation to foreign opinions, dividing the Ninth Circuit and creating an inspector general for the courts. In actions considered overly intrusive and heavy-handed during both Congresses, the House Judiciary Committee launched investigations of particular judges who had rendered decisions that certain members felt were contrary to the law or hat amounted to legislating from the bench. Even though Congress has the legitimate authority to engage in oversight of the judiciary, many organization expressed concern that these targeted investigations crossed the line from legitimate oversight to judicial intimidation.

Please click here for a summary of interbranch relations and legislative efforts to curb the discretion and jurisdiction of the courts during the 104th-109th Congresses.

Past and present judicial interpretations of laws affecting unsettled societal issues such as reproductive choice, gun control, death penalty and immigration continue to give rise to allegations by some Congressional members that the federal judiciary is overstepping its constitutional authority and usurping the legislative function. These disgruntled Members, persist in trying control the Federal Judiciary through legislation to limit discretion or curtail jurisdiction, even though it is highly unlikely that this Congress will take action on any legislation aimed at controlling an activist judiciary or punishing the courts for specific decisions.

As in previous Congresses, bills have been introduced for the sole purpose of curtailing the jurisdiction of the federal courts; none has received action to date. They include:

• H.R. 699 (Akin, R-MO), to amend title 28, United Stated Code, with respect to the jurisdiction of Federal courts over certain cases and controversies involving the Pledge of Allegiance.
  Status: Referred to the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties on March 3, 2007. No further action.
  
  
• H.R. 300 (Paul, R-TX), to limit the jurisdiction of the Federal courts, and for other purposes. H.R. 300, the We the People Act would prevent the federal courts from hearing any case relating to state laws regarding the establishment of religion, privacy rights regarding sexual orientation and reproduction, and same-sex marriage.
  Status: Referred to the House Committee on the Judiciary on January 5, 2007. No further action.
  

• H.R. 1094 (Paul, R-TX), to provide that human life shall be deemed to exist from conception. The Sanctity of Life Act would amend the federal judicial code to prevent the Supreme Court and district court from ruling on cases involving abortion.
  Status: Referred to the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties on March 19, 2007. No further action.
  
  
• H.R. 724 (Burton, R-IN), to amend title 28, United States Code, to limit Federal court jurisdiction over questions under the Defense of Marriage Act. The Marriage Protection Act would prevent federal courts from hearing or deciding any question under the Defense of Marriage Act.
  Status: Referred to the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties on January 30, 2007. No further action.
  
  
• H.R. 2898 (Akin R-MO) to amend title 28, United States Code, to establish standards for impeachment of justices and judges of the Unites States. The bill seeks to discourage judicial activism by defining the making of decisions “based on powers reserved to the Congress” as a high crime and misdemeanor, and making it an impeachable offense.
  Status: Referred to House Judiciary Committee. No further action.
  
  
• H.R. 5514 (Cannon R-UT) to amend title 28, United States Code, to limit Federal court jurisdiction over State laws restricting pornography, and for other purposes.
  Status: Referred to House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property on March 17, 2008.

Legislative efforts to divide the Ninth Circuit, which often peak after the Ninth Circuit issues a decision in a controversial case such as Newdow v. U. S. Congress, the Pledge of Allegiance case, have been pursued for decades despite persistent opposition from a majority of judges in the Circuit. No judicial circuit has ever been divided without the express approval of the circuit's judicial council. As a result, some characterize these efforts as an attempt by Congress to tamper with the decisional independence of the Circuit by diluting its influence.

Legislation to split the Ninth Judicial Circuit has resurfaced during the 110th Congress and includes:

• S. 525 (Ensign, R-NV), to amend title 28, United States Code, to provide for the appointment of additional Federal circuit judges, to divide the Ninth Judicial Circuit of the United States into 2 circuits, and for other purposes.
  Status: Referred to the Senate Committee on the Judiciary on February 8, 2007. No further action.
  
  
• H.R. 221 (Simpson, R-ID), To amend title 28, United States Code, to provide for the appointment of additional Federal circuit judges, to divide the Ninth Judicial Circuit of the United States into two circuits, and for other purposes.
  Status: Referred to the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property on February 2, 2007. No further action.

Representative F. James Sensenbrenner (R-WI) and Senator Charles Grassley (R-IA) re-introduced companion Inspector General (IG) bills, called the on January 31, 2007. The legislation would establish a statutory Office of Inspector General for the judiciary under Title 28 of the U.S. Code, not under the 1978 Inspector General Act. The two bills are identical except for one important feature: the jurisdiction of the IG in the House bill does not extend to oversight of the activities or justices of the U.S. Supreme Court, as it does in the Senate bill.

The Judicial Transparency and Ethics Enhancement Act of 2007 is nearly identical to a bill that was approved by the House Judiciary Committee last September after an amendment was added to clarify that IGs could not investigate a judge for a specific opinion. The only difference between the Senate and House bills is that the House bill covers only the federal district and appellate courts while the Senate bill also allows the Inspector General to investigate alleged misconduct within the Supreme Court.

Upon introduction, Sensenbrenner rejected criticism of the bills by explaining, "The creation of an Inspector General is not a radical idea," "Inspectors General exist in over 60 Executive agencies, boards and commissions, and in Congress as well. They shine a light on the internal operations of these entities in order to prevent fraud and improve efficiency and accountability. There is no reason why the Judicial Branch should be exempt from this type of oversight."

Senator Grassley added, "Press accounts and Government Accountability Office reports indicate the federal Judiciary’s self policing are not up to snuff. An Inspector General is just the right medicine the federal Judiciary needs to ensure it is complying with its own ethical guidelines and to root out potential waste, fraud and abuse in the system. Sunshine is the best disinfectant, and an IG can only help shed more light on the actions of our Judicial Branch of Government and keep it accountable to the American people."

H.R. 785 and S. 461,

• Establishes the Office of Inspector General for the Judicial Branch, who shall be appointed by the Chief Justice of the Supreme Court for a specific term of service of four years. Gives the Chief Justice express authority to remove the Inspector General from office.
• Specifies duties of the Inspector General, which include (1) to conduct investigations of alleged misconduct of judges in the judicial branch (Senate version includes the Supreme Court), that may require oversight or other action by Congress; (2) to conduct and supervise audits and investigations; (3) to prevent and detect waste, fraud and abuse; and (4) to recommend changes in laws or regulations governing the Judicial Branch.
• Provides powers for the Inspector General, which include (1) to make investigations and reports; (2) to obtain information or assistance from any Federal, State or local agency, or other entity, or unit thereof, including all information kept in the course of business by the Judicial Conference of the United States, the judicial council of circuits, the administrative office of United States courts, and the United States Sentencing Commission; (3) to require, by subpoena or otherwise, the attendance for the taking of testimony of any witnesses and the production of any documents, which shall be enforceable by civil action; (4) to administer or to take an oath or affirmation from any person; (5) to employ officers and employees; (6) to obtain all necessary services; and (7) to enter into contracts or other arrangements to obtain services as needed.
• Requires the Inspector General to (1) to provide the Chief Justice and Congress with an annual report on the Inspector General's operations; (2) to make prompt reports to the Chief Justice and to Congress on matters which may require further action; and (3) to refer to the Department of Justice any matter that may constitute a criminal violation.
• Prohibits the Inspector General from investigating or reviewing the merits of a judicial decision. The investigatory powers of the Inspector General are limited to only alleged misconduct under the "Judicial Conduct and Disability Act of 1980."
• Requires the Inspector General to only commence an investigation after the judiciary has conducted its review of an ethical complaint under the 1980 Act.
• Establishes whistleblower protections for individuals within the Judicial Branch.

Status: Both bills were referred to their respective Judiciary Committees, where neither has seen any action to date.

ABA Policy: The ABA adopted policy in August 2006 that opposing congressional proposals that would create an Office of Inspector General for the judiciary with broad investigative powers and close ties to Congress. These bills are offensive to the notion of separation of powers because they would permit the Office of Inspector General to subpoena judges and their documents and investigate specific judges for opinions rendered; create too close a nexus between Congress and the Office of Inspector General. If passed, these bills would re-calibrate checks and balances by expanding the potential opportunity for Congress to intrude into the decisional and institutional independence of the judiciary.

After the murders in 2005 of the family of U.S. District Court Judge Joan Lefkow in the family’s home and of Judge Rowland Barnes and court personnel in the courthouse in Fulton County, Georgia, there was an immediate nationwide outcry, condemning these horrific and devastating attacks on judges, their families and court personnel. Throughout the 109th Congress, legislators were unsuccessful in passing legislation to improve court security, including efforts to renew Judiciary’s redaction authority, which had expired in December, 2005. This authority permitted the Judicial Conference of the United States to redact certain information from a federal judge's mandatory financial disclosure in circumstances in which the release of the information could endanger the filer-judge or family member.

Soon after the 110th Congress convened, Rep. John Conyers (D- MI) introduced H.R. 1100, legislation to restore until 2009 the authority for redacting sensitive information that could compromise the safety of a judge or family member from financial disclosure statements that are available to the public. The House passed the legislation March 21 on and the Senate followed on April 19. The measure was signed into law (PL 110-24) on May 3.

Senator Patrick Leahy (D-VT) and Rep. John Conyers, Jr. (D-MI) also introduced broader court security bills, S. 378 and H.R. 660. Upon introduction, Chairman Leahy said, "Threats against our judges and their families put the men and women who serve in our justice system at risk and are a repugnant assault on our independent judiciary...We owe it to our judges to better protect them and their families from violence and to ensure that they have the peace of mind necessary to do their vital and difficult jobs." Senator Specter said, "The ability of the judiciary to determine the rule of law without fear or favor is an indispensable prerequisite to our democratic society...Our judges’ personal security, along with their judicial independence, must be safeguarded at all costs, and I believe that this bill is an important step toward providing those safeguards."

In addition to extending redaction authority to 2008, these bills would respond to the needs expressed by the federal judiciary for a greater voice in working with the U.S. Marshals Service to determine security needs; create new criminal penalties for the protections of judges, their families, and others performing official duties; and expand resources available to state courts for their security; and provide additional protections for law enforcement officers.

The House passed a similar bill in 2005 after a Chicago federal judge’s husband and mother were murdered, but it included provisions that would have created new mandatory minimum prison sentences and death penalties. The Senate in 2006 passed a version without those provisions, and the two versions were never reconciled in the 109th Congress.

The Association supports numerous provisions in the court security bills, including those that provide permanent redaction authority for the Judicial Conference to withhold potentially endangering information from disclosure of judges’ financial disclosure forms, require greater consultation between the judiciary and US Marshals Service, and provide authority to hold court in a temporary location due to emergency conditions.

Status: The House passed H.R. 660 on July 10, 2008. The Senate passed the House legislation with an amendment on December 17, 2007. The House agreed to and passed the amended Senate version on December 19, 2007. The measure was signed into law (P.L. 110-177) on January 7, 2008.

The 110th Congress took several positive steps in introducing legislation to create new federal judgeships.

The only legislation that received any legislative action was S. 2774, The Federal Judgeship Act.

Senator Patrick Leahy introduced the Federal Judgeship Act on March 13, 2008. The legislation would direct the president to appoint 12 new appellate court judges and 38 new district court judges. The legislation would not take effect until after the next president takes office.

Status: S. 2774 was reported favorably out of the Senate Judiciary Committee on May 15, 2008. There has been no additional action.

Other positive legislation that was introduced in the 110th Congress to provide for additional federal judgeships include:

• H.R. 1450 (Lungren, R-CA), to create 4 new permanent judgeships for the eastern district of California.
  Status: Referred to House Judiciary Committee on March 9, 2007. No further action.
  
  
• H.R. 1454 (McCarthy, R-CA), to create 4 new permanent judgeships for the eastern district of California, to provide for an additional place of holding court in the eastern district of California, and for other purposes.
  Status: Referred t House Judiciary Committee on March 9, 2007. No further action.
  
  
• H.R. 231 (Terry, R-NE), to authorize an additional district judgeship for the district of Nebraska.
  Status: Referred to the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties on February 2, 2007. No further action.
  
  
• S. 476 (Grassley, R-IA), to amend chapter 3 of title 28, United States Code, to provide for 11 circuit judges on the United States Court of Appeals for the District of Columbia Circuit.
  Status: Referred to Senate Judiciary Committee on February 1, 2007. No further action.
  
  
• S. 389 (Domenici, R-NM), a bill to increase the number of Federal judgeships, in accordance with recommendations by the Judicial Conference, in districts that have an extraordinarily high immigration caseload.
  Status: Referred to Senate Judiciary Committee on January 25, 2007. No further action.
  
  
• S. 525 (Ensign, R-NV), to amend title 28, United States Code, to provide for the appointment of additional Federal circuit judges, to divide the Ninth Judicial Circuit of the United States into 2 circuits, and for other purposes.
  Status: Referred to Senate Judiciary Committee on February 8, 2007. No further action.

• Judicial independence exists for the benefit of the people, not for the personal benefit of the judge. Article III, Section 1 of the Constitution establishes judicial independence by making the federal judiciary an independent branch of government and by guaranteeing federal judges life tenure during good behavior and an undiminished salary. These guarantees make it possible for a judge to protect and enforce individual rights, even when doing so is contrary to popular opinion, and hold the other branches in check.


• While there will always be interbranch conflict arising out of disputes over where to draw the line between judicial independence and judicial accountability, the key to managing interbranch tension and maintaining a sound state of judicial independence and accountability in a government of separated powers is for each branch to act with mutual restraint, respect, and common purpose. This is best achieved through productive and cooperative communication among the branches.


• Our Constitutional system of government relies on a system of separated powers and checks and balances to prevent the over-concentration of power in any one branch of government. It is incumbent upon each branch to work cooperatively, but still retain its "checking authority," in order to maintain the balance and distribution of power contemplated by our Constitution.


• Congress does not have the authority to review individual decisions of judges or to interrogate judges about suspected violations of judicial duty outside of the constitutionally prescribed method of impeachment. To exert such authority is a violation of separation of powers.


• Even though the Constitution authorizes Congress to make "exceptions" to and "regulations" of the appellate jurisdiction of the Supreme Court and to create and ordain the lower federal courts, Congress’s power to regulate federal court jurisdiction was NOT intended to vest in transient majorities the power to alter judicial decisions by depriving the federal courts of the power to interpret the Constitution in issue-specific situations.


• Although robust criticism of judicial decisions is fully protected by the First Amendment and is indispensable to the well being of a democracy, misleading or intemperate judicial criticism misinforms the public, distorts their view of the judicial process, and may undermine public confidence in our courts. Since ethical obligations generally prevent judges from defending themselves against purposely misleading criticism, it is incumbent upon the legal profession in particular to correct the record.


• Maintaining public confidence in the judiciary not only depends upon Congress and the courts interacting with the necessary spirit of restraint and common purpose, it also requires a public that is knowledgeable about the fundamental importance of the principle of judicial independence in a healthy democratic republic.

• The ABA opposes legislative initiatives that infringe upon the separation of powers between Congress and the courts.


• The ABA also opposes enactment of any legislation to curtail the jurisdiction of the Supreme Court or the inferior courts or to curtail remedies available to federal courts in cases involving constitutional rights for the purpose of changing constitutional law.


• The ABA opposes legislative efforts to create an inspector general for the federal courts. Click here for the ABA policy and report on the Inspector General for the Federal courts.


• The ABA adopted policy in 2001 that contained several recommendations to improve court security including one urging Congress to permanently extend the law that allows federal judges to redact sensitive information on their financial disclosure forms that might compromise their or their family members' security. Click here for the ABA policy and report on Court Security.