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A Mere MachineThe Supreme Court, Congress, and American Democracy$
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Anna Harvey

Print publication date: 2013

Print ISBN-13: 9780300171112

Published to Yale Scholarship Online: January 2014

DOI: 10.12987/yale/9780300171112.001.0001

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The Supreme Court, the Elected Branches, and the Constitution

The Supreme Court, the Elected Branches, and the Constitution

Chapter:
(p.35) 2 The Supreme Court, the Elected Branches, and the Constitution
Source:
A Mere Machine
Author(s):

Anna Harvey

Publisher:
Yale University Press
DOI:10.12987/yale/9780300171112.003.0002

Many believe that federal judges in the United States are free to decide cases independently of elected branch preferences; others state the contrary. This chapter questions both these propositions. It remains an open question. Firstly, the plain words of the Constitution's text appears to enable multiple elected branch checks on the federal courts. Secondly, there is considerable evidence in the historical record that many colonial and revolutionary era reformers actually preferred deferential courts to independent ones, and that they sought elected branch control over judicial tenures and salaries precisely in order to induce judicial deference to elected branch preferences. Thirdly, there is reason to reject as determinative the argument that, even if the Constitution's provisions regulating the federal judiciary were in fact intended to induce judicial deference to elected branch preferences, those provisions have proved too difficult for elected officials to implement. Fourthly, there are both logical and empirical reasons to reject as conclusive the argument that judicial and elected branch preferences will only rarely diverge. Finally, reliable inferences about the willingness of elected officials to police federal judicial decision making cannot be made from the frequency with which policing is observed.

Keywords:   federal judges, Constitution, federal judiciary, elected officials, policing

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