PUBLISHED:May 12, 2015

Historical Practice and the Federal Judicial Power Roundtable

Friday, October 23, 2015 • ALL DAY • Law School Room 3000

It has long been recognized that historic governmental practices are potentially relevant to determining the scope of presidential and congressional power, a proposition recently confirmed by the Supreme Court in its recent recess appointments decision, NLRB v. Noel Canning.  Although less recognized, historical practice is also potentially relevant to a wide range of issues concerning the scope of federal judicial power, including issues relating to justiciability and other limitations on judicial review; the authority of Congress to regulate federal court jurisdiction and decisionmaking; the constitutionality of “Court-packing” or other efforts by the political branches to alter the size of the Supreme Court or the tenure of the Justices; the process and standards for impeachment of federal judges; the role of the Executive Branch in federal court litigation; the nature and effect of judicial supremacy; the creation of non-Article III tribunals; and various means of judicial self-preservation.

Because the potential role of historical practice in the field of Federal Courts has been underexplored in the literature, there has been relatively little attention to the empirical, methodological, and normative issues implicated by this role.  Empirically, it is worth examining the relative frequency with which an historical “gloss” approach informs the exercise of, or restrictions on, federal judicial power.  Methodologically, it is worth considering how a practice-based approach compares with other methodologies common in the Federal Courts area, such as originalism and structuralism.  It is also worth exploring how the potential role for historical practice in this area compares with its potential role in other areas (such as its use in construing “the executive Power”).  Normatively, crediting historical practice implicates a variety of issues, including the potential for self-aggrandizement by the federal judiciary through accretion of practice.  On the other hand, if Alexander Hamilton was right that the judiciary is the weakest branch, such accretion could be viewed as a useful counterpoint to the potential for interference by Congress and the Executive Branch.