Responding to a Democratic Deficit: Limiting the Powers and the Term of the Chief Justice of the United States

IF 2.5 2区 社会学 Q1 Social Sciences University of Pennsylvania Law Review Pub Date : 2006-07-11 DOI:10.2307/40041348
J. Resnik, Lane Dilg
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引用次数: 9

Abstract

This essay questions the wisdom and the constitutionality of the packet of powers now held by the Chief Justice of the United States. Many of the current attributes of the position are relatively recent additions, generated during the twentieth century through the interaction of a sequence of congressional decisions and the leadership of Chief Justices William Howard Taft, Earl Warren, Warren Burger, and William Rehnquist. These jurists responded to new demands as national law grew in importance in the American polity, and they introduced new ideas that gave the federal judiciary the capacity to function as a programmatic, agenda-setting agency. The reconfiguring of judicial power and structure within the federal system took place as, more generally, democratic mandates were reinterpreted to insist both that women and men of all colors had rights enforceable by courts and that the judiciary ought to include individuals diverse enough to capture an expanding class of litigants. Further, as concerns emerged about how, through popular electoral processes, individuals could entrench their authority for unduly long periods of time, American democracy revisited its institutions of electoral politics in the hopes (not yet well realized) of imposing constraints on the power of elected officials to entrench their own or their parties' power. It is the interaction among these factors - the developing democratic principles, the long-held commitments to separation of powers and independent adjudication, and the new range of tasks accruing to the Chief Justice - that makes troubling the range of powers now possessed by the chief justiceship. One individual can serve for decades as a life-tenured administrator-adjudicator. With such tenure in office, one person has a unique opportunity to forward positions through two channels: by building a body of doctrine in case law and by building a set of policies in administrative directives. When an individual is asked to be instrumental on behalf of the billion-dollar agency called The Federal Courts (with some two thousand judges, thirty thousand in staff, and hundreds of facilities) and also to be successful jurisprudentially as a disinterested adjudicator, one role cannot help but bleed into the other. Each role amplifies the power of, distracts from, and imposes costs on the other. Such conflation undermines democratic principles and the legitimacy of adjudication by giving the few individuals who hold the chief justiceship a disproportionate impact on American law. The history of the developments of the twentieth century makes plain the plasticity of the packet of activities associated with the chief justiceship. Because the powers are artifacts of custom and statute rather than the Constitution, Congress as well as the Chief Justice can and should revisit these powers to revise the charter of that role.
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回应民主赤字:限制美国首席大法官的权力和任期
这篇文章质疑美国首席大法官现在所拥有的一揽子权力的智慧和合宪性。该职位目前的许多属性都是相对较新的,是在20世纪通过一系列国会决定和首席大法官威廉·霍华德·塔夫脱、厄尔·沃伦、沃伦·伯格和威廉·伦奎斯特的领导下产生的。随着国家法律在美国政治中的重要性日益提高,这些法学家对新的要求做出了回应,他们提出了新的想法,赋予联邦司法机构作为一个程序化、议程设定机构的能力。联邦体制内司法权力和结构的重新配置发生在更普遍的情况下,民主授权被重新解释为坚持所有肤色的女性和男性都有由法院强制执行的权利,司法部门应该包括足够多样化的个人,以涵盖不断扩大的诉讼群体。此外,随着人们对个人如何通过民众选举程序在过长时间内巩固其权威的担忧日益凸显,美国民主重新审视了其选举政治制度,希望(尚未完全实现)对民选官员的权力施加限制,以巩固他们自己或他们所在政党的权力。正是这些因素之间的相互作用- -不断发展的民主原则,对权力分立和独立审判的长期承诺,以及首席大法官的新任务范围- -使首席大法官目前拥有的权力范围令人不安。一个人可以担任数十年的终身行政-裁决官。有了这样的任期,一个人有一个独特的机会通过两个渠道来提出立场:在判例法中建立一套理论,在行政指令中建立一套政策。当一个人被要求代表一个价值数十亿美元的机构——联邦法院(拥有大约2000名法官、3万名工作人员和数百个设施)发挥重要作用,并在法律上作为一个公正的裁决者取得成功时,一个角色必然会渗透到另一个角色中。每一个角色都放大了另一个角色的力量,分散了另一个角色的注意力,并给另一个角色增加了成本。这样的合二为一让少数几个担任首席大法官的人对美国法律产生了不成比例的影响,从而破坏了民主原则和裁决的合法性。二十世纪的发展历史清楚地说明了与首席大法官职位相关的一系列活动的可塑性。由于这些权力是习俗和法规的产物,而不是宪法,国会和首席大法官可以也应该重新审视这些权力,以修改该角色的章程。
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来源期刊
CiteScore
2.90
自引率
0.00%
发文量
1
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