A (modest) separation of powers success story.

• Author: Grove, Tara Leigh

The United States Constitution was, in many respects, designed to be "a machine that would go of itself." (1) The Constitution would be made "politically self-enforcing by aligning the political interests of officials ... with constitutional rights and rules." (2) The system of separated powers was a central component of this self-enforcing "machine." (3) As James Madison famously stated, "the great security ... consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments" on constitutional principles. (4)

Recent scholarship has, however, cast doubt on the effectiveness of this constitutional design. First, scholars have argued that partisan politics has eclipsed the checks and balances created by the Constitution, so that the relevant "check" now depends on the "separation of parties, not powers." (5) Second, and more broadly, scholars have doubted that the constitutional design will lead politicians to protect constitutional values under any circumstances, because "there is no robust mechanism ... that could even in principle align" the interests of elected officials with the public interest in constitutional enforcement. (6)

In this Essay (drawing upon prior work), (7) I argue that there is an important context in which the constitutional scheme of separated powers has functioned quite well: safeguarding the Article Ill federal judiciary. Efforts to strip federal jurisdiction have repeatedly been blocked by the "checks" established by our constitutional structure. Notably, the separation of powers has worked in this context not despite the political incentives and ambitions of elected officials, but because of those incentives and ambitions. Political actors have repeatedly found it in their interest to protect the authority of the independent federal judiciary.

This separation of powers "success story" may have broader implications. To the extent that the judiciary serves as a guardian of individual rights and other constitutional values, the structural safeguards for the federal judiciary may indirectly protect those constitutional concerns. Thus, by ensuring the authority of the Article III courts, politicians may also--however inadvertently--safeguard other constitutional principles. In sum, the Madisonian "machine" may work reasonably well, after all.

1. CRITIQUES OF MADISON'S VISION

   The system of separation of powers was designed to channel--and thereby curtail--the influence of "factions." (8) Madison expressed particular concern about majority factions, which might gain substantial political power in government and use that power to oppress minorities. (9) But he argued that such an oppressive faction was unlikely to gain power in the federal government. (10) The government would be divided into three departments (the executive, legislative, and judicial), and the legislature would be further divided into the House and Senate. Much of Madison's discussion focused on the political institutions--i.e., the House, Senate, and Presidency. (11) Madison reasoned that, even if a dangerous faction captured one of these political institutions, the other institutions would use their constitutional authority to prevent encroachments on constitutional principles. (12) Thus, he stated:

   [T]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.... Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. (13) Accordingly, Madison did not trust that political actors would protect constitutional principles for their own sake. "If angels were to govern men, neither external nor internal controls on government would be necessary." (14) Instead, he assumed that many politicians would be more concerned with enhancing their own power (or, at a minimum, getting reelected). Madison's solution was to "harness" these competing political incentives and ambitions--by arranging the government so that all these "ambitious" political actors would check one another. (15)

   The Madisonian design has, however, recently come under attack by scholars. (16) First, in an influential article, (17) Daryl Levinson and Richard Pildes argue that this scheme is unlikely to work during periods of unified government. (18) Instead, when the Presidency and Congress are controlled by the same political party, the two branches are likely to cooperate rather than compete. (19) Accordingly, the relevant "check" arises from the "separation of parties, not powers." (20)

   Second, and perhaps even more fundamentally, Adrian Vermeule has urged that Madison's analysis is simply incomplete. "The argument lacks any mechanism to ensure that competition among institutions promoting their interests or ambitions will promote a state of affairs that is ... desirable overall." (21) In other words, Madison never explained why government officials would use their institutional authority to protect, rather than to harm (or be neutral toward), constitutional values. (22)

   These powerful critiques do not necessarily undermine the Madisonian separation of powers regime. But they do call for a more refined analysis. The scheme of separated powers cannot merely be presumed to promote constitutional values. Instead, the "success" of that scheme must be demonstrated in particular contexts. (23) In this Essay, I aim to show that this structural design has worked well to safeguard one important constitutional value: the power of the independent federal judiciary.

2. THE STRUCTURAL SAFEGUARDS FOR THE FEDERAL JUDICIARY

   In order to ascertain whether the separation of powers has "worked" in a given area, it is necessary to identify a normative baseline. (24) I rely on the scholarly debate surrounding jurisdiction-stripping measures for the relevant baseline. There appears to be a substantial amount of agreement on certain principles. (25) First, scholars generally agree that all jurisdiction-stripping proposals (defined here as efforts to restrict or eliminate federal jurisdiction over a class of claims) (26) are unwise, if not unconstitutional. (27) Second, there appears to be a consensus that two types of jurisdiction-stripping measures are of particular concern: efforts to restrict the Supreme Court's appellate review power and federal jurisdiction over constitutional claims. (28)

   Scholars have long debated the extent to which the judiciary can enforce these two normative standards. (20) But I argue that there is an alternative enforcement mechanism: the structural and political constraints built into our constitutional scheme. The Madisonian system of separated powers has served to block most efforts to strip federal jurisdiction and has precluded virtually all measures targeted at the Supreme Court or at constitutional claims. This structural design has accordingly "worked" reasonably well--as judged by the normative standards underlying the scholarship on jurisdiction stripping. Although the scheme may not have functioned precisely as Madison anticipated, it has nevertheless served as an "invisible hand" safeguarding the federal judiciary.

   1. Article I Protections

      The first barrier to jurisdiction-stripping legislation is the lawmaking process of Article I, which requires all federal legislation to pass through two chambers of Congress and be presented to the President. (30) These lawmaking procedures effectively create a supermajority requirement for every piece of federal legislation and thereby give political factions--even political minorities--considerable power to "veto" legislation. (31)

      Recent social science research suggests that political actors have a strong incentive to use this structural veto to block jurisdiction-stripping proposals. Political scientists assert that, in our politically divided society, the overall content of federal court decisions is generally favored by at least one major political faction. (32) Such political supporters of the judiciary have good reason both to empower the federal judiciary and to block court-curbing proposals. (33)

      Notably, this political support is tied to the constitutional structure. The appointment and confirmation process established by the Constitution (requiring both presidential and senatorial approval) effectively guarantees that each federal judge has been selected by a dominant political group. (34) Thus, our process helps ensure that, at least at the outset, a judge's views on constitutional and other legal issues align to some degree with those of political leaders. As social scientists concede, the fact that judges are chosen by a dominant political faction does not mean that federal courts always issue decisions that accord with the views of that faction. (35) But this political group does tend to favor the overall content of federal court decisions. The selection process of Article II thus gives a major political faction an incentive to support the relatively "friendly" judiciary that it put in place.

      For example, in the late nineteenth century, the Republican Party was dominated by pro-business conservatives who sought to advance their economic agenda through the federal judiciary. (36) The party controlled the Presidency and the Senate during much of this period and used this authority to appoint judges who were likely to be sympathetic to the concerns of large corporations. (37) Indeed, the members of the Supreme Court were selected almost entirely based on "their devotion to party principles and 'soundness' on the major economic questions of the day." (38) Furthermore, when the Republicans had sufficient political power in Congress, they sought to expand the size of the federal judiciary and the scope of federal jurisdiction. (39)

      In the mid-to-late...