The separation of powers and the Supreme Court: a new institutional analysis of inter-branch disputes, 1946-2005

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THE SEPARATION OF POWERS AND THE SUPREME COURT:

A NEW INSTITUTIONAL ANALYSIS OF INTER-BRANCH DISPUTES,

1946 – 2005

by

Katayoun Mohammad-Zadeh, J.D.

________________________________________________________________

A Dissertation Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILOSOPHY
(POLITICAL SCIENCE)

May 2007

Copyright 2007 Katayoun Mohammad-Zadeh, J.D.

ii

Dedication

For my darling men,

Paul, Darius and Julian

iii

Acknowledgements

A course of doctoral studies is truly a collaboration. The student herself is
but one part of a network of faculty, family and friends that make all aspects of such
an arduous endeavor possible. I’d like to thank Howard Gillman for his guidance
and support. Thank you also for being an excellent role model in the classroom.
Thanks to Stanley Rosen for years of kind words and attention to detail. Many
thanks to Terry Seip for his careful reading of the manuscript.
Nothing would be possible without my parents, Ali and Mahrokh
Mohammad-Zadeh. Beyond life, they have given me love, confidence, humor and
respect. A mere thank you will never be enough. Amir and Ladan are the dream
team. I couldn’t be any luckier. The cheerleading squad consists of Susan, Willy,
Diana, Paul, Peter and Dorota. Thanks to all.
This was such a long journey for me, and outside my family, no one knows
the journey better than Nirella. Thank you for your friendship and so much more.
Finally, everything begins and ends with Paul, Darius and Julian. You are
the great loves of my life and the finest people I know. A million kisses.

iv

Table of Contents

Dedication ii

Acknowledgements iii

List of Tables v

List of Figures vii

Abstract viii

Introduction: Attitudes, Games and Missions: 1
A Review of Competing Models of
Supreme Court Decision Making

Chapter 1: The History and Development of the American 52
Separation of Powers Doctrine

Chapter 2: The Vinson Court: 112
The Modern Era Begins, 1946 – 1953

Chapter 3: The Warren Court: 182
Individual Liberties and Inter-branch Disputes, 1953 – 1969

Chapter 4: The Burger Court: 272
Game, Set and Match, 1969 – 1986

Chapter 5: The Rehnquist Court: 337
Exposing the Limits of Judicial Modeling, 1986 – 2005

Chapter 6: Conclusion: 384
The Role of the Supreme Court in Divided Government

Bibliography 391

v
List of Tables

Table 1. Summary of Separation of Powers Cases: 1800 – 1946 109

Table 2. Segal Cover Ideological Values of Justices of the Vinson Court 155

Table 3. Average Segal/Cover Ideological Values of Natural Courts of the
Vinson Era 156

Table 4. Attitudinal Analysis of Separation of Powers Cases in the Vinson
Court: 1946 – 1953 159

Table 5. Voting Correlation Rates for Justices of the Vinson Court in
Separation of Powers Cases: 1946 – 1953 160

Table 6. Strategic Model of Separation of Powers Cases in the Vinson Court 164

Table 7. Ruling Coalitions Analysis of Vinson Court Separation of Powers
Cases 168

Table 8. Summary of Vinson Court Separation of Powers Cases: 1946 -
1953 177

Table 9. Segal Cover Values of the Warren Court, 1953 – 1969 242

Table 10. Average Segal/Cover Values of Natural Courts of the Warren Era,
1953 – 1969 244

Table 11. Attitudinal Analysis of Separation of Powers Cases in the Warren
Court, 1953 – 1969 248

Table 12. Voting Correlation Rates of Justices of Warren Court in Separation
of Powers Cases, 1953 – 1969 249

Table 13. Strategic Model of Separation of Powers Cases in the Warren Court 252

Table 14. Ruling Coalitions Analysis of Warren Court Separation of Powers
Cases 256

vi
Table 15. Summary of Warren Court Separation of Powers Cases: 1953 -
1969 261

Table 16. Segal/Cover Values for Justices of the Burger Court, 1969 – 1986 311

Table 17. Average Segal/Cover Values of Natural Courts of the Burger Era,
1953 – 1969 311

Table 18. Attitudinal Analysis of Separation of Powers Cases in the Burger
Court, 1969 – 1986 313

Table 19. Voting Correlation Rates for Justices of the Burger Court in
Separation of Powers Cases: 1969 – 1986 314

Table 20. Strategic Model of Separation of Powers Cases in the Burger Court 316

Table 21. Ruling Coalitions Analysis of Burger Court Separation of Powers
Cases 319

Table 22. Summary of Burger Court Separation of Powers Cases, 1969 –
1986 327

Table 23. Attitudinal Analysis of Separation of Powers Cases in the
Rehnquist Court, 1986 – 2005 359

Table 24. Voting Correlation Rates of Justices of the Rehnquist Court in
Separation of Powers Cases 360

Table 25. Strategic Model of Separation of Powers Cases in the Rehnquist
Court 365

Table 26. Ruling Coalitions Analysis of Rehnquist Court Separation of
Powers Cases 368

Table 27. Summary of Rehnquist Court Separation of Powers Cases 379

vii
List of Figures

Figure 1. Historical New Institutionalist Decision Tree for Separation of
Powers Cases 48

Figure 2. Historical New Institutionalist Decision Tree for Separation of
Powers Cases: 1787 – 1946 107

Figure 3. Diagram Representation of Sala and Spriggs (2004) Study 161

Figure 4. Historical New Institutionalist Decision Tree for Vinson
Separation of Powers Cases: 1946 – 1953 170

Figure 5. Historical New Institutionalist Decision Tree for Warren Court
Separation of Powers Cases: 1953 – 1969 259

Figure 6. Historical New Institutionalist Decision Tree for Burger Court
Separation of Powers Cases. 323

Figure 7. Historical New Institutionalist Decision Tree for Rehnquist
Court Separation of Powers Cases 373

viii
ABSTRACT

Very few theories of Supreme Court decision making offer explanations of
the Court's opinions in separation of powers cases. My study attempts to address this
omission in the literature by using separation of powers cases to test the explanatory
and predictive power of four different approaches to Supreme Court decision
making: the attitudinal model, the "strategic" approach, ruling-coalition theory, and
historical new institutionalism. The study hypothesizes that historical new
institutionalist approaches are in the best position to explain the outcomes in these
cases.
As a test of this hypothesis, I am analyzing all significant separation of
powers cases decided by the Vinson, Warren, Burger and Rehnquist Courts.
Attitudinal models fail to explain why justices of widely different ideological
preferences vote along the same lines in these cases. The strategic model would
predict that the justices would support those institutions that are controlled by people
with attitudes that are most closely aligned with the Court majority, but this turns out
not to be the case. The theory of ruling coalitions suggests that the Court's decisions
will reflect the preferences of dominant ruling coalitions, but the data suggests either
that this is not consistently true or that separation-of-powers cases fall outside the
scope of the model because they reflect divisions among dominant coalitions.

ix
Instead, the preliminary results demonstrate that the justices' behavior is most
consistent with that which we would expect from an historical new institutionalist
analysis. There is evidence that justices form endogenous preferences based on the
structure of constitutional doctrine, and that these preferences are not reducible to the
sort of conventional policy preferences measured by attitudinalists. Moreover, in
these cases the justices also appear to be pursuing a distinctive institutional mission
related to the maintenance of judicial power and a system of checks and balances;
the outcomes in these cases do not suggest that the justices are stealthily promoting
conventional policy preferences. I will examine the question of whether separation
of powers cases expose limits to prevailing models of judicial behavior, and also the
question of what new institutionalist analysis can contribute to our understanding of
Supreme Court politics.

1

Introduction

Attitudes, Games and Missions:

A Review of Competing Models of
Supreme Court Decision Making

I. Introduction
The study of judicial behavior is rooted in skepticism that judges make
decisions rooted purely in the law and diligently ignore their own personal
preferences (Baum 1997, 57). While the legal community wrestles with questions of
how justices should make decisions, political scientists are more concerned with how
justices do make decisions (George and Epstein 1992) and this project will
concentrate on the latter. Lest the importance of the study of judicial behavior not be
self-evident, it is important to point out the many ramifications of this area of
political and legal inquiry. The sources of judicial behavior are not significant only
in their outcome or even for their narrow effect in the world of laws. The possible
existence of internal and external pressures on the judicial process has significant
implications for much more far-reaching debates regarding majority rule, judicial
accountability and reach within the constitutional system, and other values.
1
If, for

1
In Toward a Science of Impartial Judicial Behavior (1973), Harry A. Kalven stated, “The
fundamental premise in the idea of impartial judges and rules of law is that certain kinds of
decision-making, for example by judges, can by institutional arrangements and role discipline be
made to show less variance and less correlation to personal factors than other kinds of decision-
making, for example, voting and consumer preferences … Empirical studies of judicial behavior

2
example, it was revealed through empirical evidence that judges rule strictly to
maximize their personal attitudes, the legal professional’s approach would be far
different than one in which it was found that judges vote to be part of a majority
rather than to effectuate their personal preferences. Should an appointing President
look toward the Judicial candidate’s stated policy preferences or her actual voting
record (especially the record in “close” cases)? Would the two show consistent or
opposing values? And what if, just when you have arrived at a workable solution – a
mélange of attitudes and preferences and strategies, you find an area of law where all
existing explanations fall short? This study seeks to identify and explain just such an
area of law – separation of powers.
A review of public law literature reveals that separation of powers issues
have not been adequately addressed by any of the models of judicial behavior in use
today. Still, because many scholars claim to have identified general theories of
Supreme Court decisionmaking, it is important to see how they fare when asked to
explain the issue of separation of powers. For the behavioral models, separation of
powers represents the “hard case” and it is only through the analysis of such cases
that the limits of various models can be exposed. I will begin with an overview of
the traditional legal model. Using the specific example of the tensions between
formalist functionalist notions of separation of powers, I will highlight the need to go
beyond legalism. Next, I will trace the development of extralegal models of judicial

must stimulate and sharpen theory about the aspiration to have a human being who as a judge is
tolerably impartial and tolerably independent.”

3
behavior and culminate in a discussion of the theories under consideration in this
study: attitudinalism, strategic choice theory, regime theory and the historical new
institutionalism.
II. The Legal Model
In the early part of the 20
th
Century, there was no distinction between positive
and normative theories of judicial decisionmaking. Formalism was the dominant,
and only lens, through which decisions were analyzed. Indeed, the moniker of
judicial behavior seemed utterly inappropriate given the early paradigms of decision
outcomes. This methodological formalism combined with the understanding of the
functions and norms of Common Law came to be known as Classical Legal Theory.
Classical Legal Theory holds that judicial decisions are based on logical reasoning or
reasoning by example. Under this familiar view of judicial decisionmaking, justices
review the case before them and draw inevitable conclusions based on its
commonalities with earlier cases.
The classical legal orthodoxy, also called the Langdellian legal theory,
derives its name from the first Dean of the Harvard Law School, Christopher
Columbus Langdell. Langdell appropriated the constraints of physical science to
derive a scientific theory of law (Grey 1983). Under Langdellian theory, “law
should be formal, producing outcomes by the application of rules to facts without

4
any intervening exercise of discretion” (Grey 1996, 495).
2
Therefore, as in the law
of gravity, the law of say, contracts, should be equally constant in its existence and
consistent in its effective force.
Following this model, both legal scholars and social scientists approached the
study of law and courts through the same ostensibly objective mechanism. As Felix
Frankfurter explained the position:
“[o]ur judicial system is absolutely dependent upon a popular belief that it is
as untainted in its workings as the finite limitations of disciplined human
minds and feelings make possible” (Frankfurter 1921 as cited in Kurland
1970).

The doctrine of separation of powers is inextricably linked with theories of
judicial behavior. It is after all, at the very heart of both Montesquieu and
Blackstone that judicial powers must be kept distinct from executive and legislative
powers and should be characterized by a lack of decisionmaking discretion.
3

The reasons to cling to a theory of neutral decisionmaking, for both legal
scholars and social scientists, are numerous and run at the core of our mythological
understanding of law and the judiciary. The primacy of rules and the attachment to a
set of neutral principles protect our collective notion of what it means to live in a
democracy. Scholars who looked to understand the Supreme Court and advocates

2
See also Edward H. Levi (1962), An Introduction to Legal Reasoning. This highly structured and
repetitive process by which judges theoretically reach decisions is called “mechanical
jurisprudence”. See Steven L. Wasby (1994), The Supreme Court in the Federal Judicial System,
4
th
Ed..
3
See Robert J. Pushaw Jr., “Justiciability and Separation of Powers: A Neo-Federalist Approach,” 81
Cornell Law Review, 393, 405-07, 426-27 (1996) (citing Baron de Montesquieu, The Spirit of Laws,
1748) and discussing Blackstone’s adherence to “the axiom that a judges role was merely to
‘expound’ not ‘make’ the law” 1 William Blackstone Commentaries.

5
who looked to argue effectively in front of the Court examined recent developments
in a particular area of law and postulated about the scope and implications of the
developing doctrine. From the Classical Legal perspective, any diversion from either
neutral decisionmaking or adjudication through mechanical and logical reasoning
would no longer be judging.
But even in the midst of this theoretical orthodoxy, some voices of dissent
began to be heard. In 1922, in an article entitled “General Observations on the
Effects of Personal, Political, and Economic Influences in the Decisions of Judges,”
Charles Grove Haines observed that, even while mechanical theories of
jurisprudence were dominant there were always justices and magistrates who frankly
recognized that under the veil of the mysterious and divine sources of legal
principles, it was necessary for judges to exercise discretion and to make choices as
to the legal rules to be applied (Haines 1922, 98).

A. Alternative Conceptions of Separation of Powers in American
Constitutional Law
There is a profound lack of analytical consistency when addressing
separation of powers issues within American jurisprudence. The two main
competing doctrines in the area of separation of powers are generally characterized
as “formalist” and “functionalist.” The formalist approach emphasizes bright line
demarcations between the branches. Functionalists are more concerned about

6
preserving the core functions of the branches and ask whether the disputed action
threatens the essential attributes of the particular branch under attack. Under this
approach, there is considerable flexibility in the moving branch, usually Congress,
acting to make structural or institutional change, if there is little significant risk of
impairment of a core function or in the case of such a risk, if there is a compelling
reason for the action. The analytical paradigm has also been stated in terms of
“orginalism” versus “non-orginalism”, and “literalism” versus “interpretation”
(Brown 1991). On closer inspection, the varying nomenclature reveals the same
theoretical cleavages that exist between formalists and functionalists.

B. Formalism
Formalists seek judicial legitimacy by insisting upon a strong textual basis in
the Constitution for any governmental act (Brown 1991). Their position is that the
structural provisions of the Constitution should be understood solely by their literal
language and the Framers’ original intent. The advantages of formalism, according
to its advocates, are clear: formalism contributes to the planning and stability of
government and assures the rule of law. Clear lines of demarcation reduce
uncertainty in resolving interbranch disputes (Strauss 1984, 625 – 626).
According to formalist theory, the creation of independent administrative
agencies is considered a violation of the Constitution because these agencies
combine executive, legislative and judicial powers all within one institution (Brown

7
1991). A formalist decision is derived from reasoning logically from the text of the
Constitution (Shane 1987; Carter 1985; Schauer 1985) and what is known about the
framers’ intent. The formalists’ overt reliance on original intent
4
is problematic and
tends to obscure the presence of any other reasons for decisions, such as value
preferences (Ely 1980; Bobbitt 1982; Bruff 1987). As will be discussed in Chapter
1, the Framers were not unified in their opinions on separation of powers and
furthermore, taking into consideration the elements of the Framers’ decisionmaking
process, it is not at all clear that they intended to advocate a strict separation of
powers doctrine (Huston 1986; Powell 1985).
Stephen Calabresi and Saikrishna Prakash, who have found their voice on the
Supreme Court through Justice Antonin Scalia
5
, have been at the forefront of
scholars advancing an historical formalist approach to separation of powers by
arguing that the Founders espoused a formalist conception of governmental
divisions, including among other things, a unitary executive (Calabresi and Prakash
1994, 545-546; Flaherty 1996, 1743). In their now seminal piece, “The President’s
Power to Execute the Laws,” they argue that that the Founders clearly intended that
the President alone would be accountable for the execution of federal law,

4
For some thoughts about the importance of original intent and a historical perspective see Crosskey
and Jeffrey 1980; Krash 1984; Levy 1989; Baade 1991; Bork 1971; Meese 1986; Powell 1987;
Rehnquist 1976.
5
See e.g. Mistretta v. United States, 488 U.S. 361, 413-27 (Scalia, J., dissenting). See also Morrison
v. Olsen, 487 U.S. 654, 697-743 (Scalia, J., dissenting) where he outlines three distinct branches of
government with distinct powers. In that dissent, he chastises the majority for avoiding “the
inevitable conclusion that since the statute vests some purely executive power in a person who is not
the President of the United States, it is void” (705).

8
notwithstanding congressional attempts to insulate executive officials. They
erroneously base their analysis on the wording of the Vesting Clauses. They also
claim that the founders practiced this type of coherent theory of presidential
authority. Flaherty (1996) refutes this reading and points to much of the same
historical analysis discussed above to show that the Founders were innovating as
they went along and sought only to ensure the ratification of the Constitution and to
protect individual liberty through appropriate methods of governmental organization.
Another critic, Abner Greene (1994), using the same time of textual interpretation as
Calabresi and Prakash comes to the exact opposite conclusion, that “The bottom line
was not strength in the executive, but rather balance between the branches” (138).
Rebecca L. Brown (1991) points to three consequences of the formalist
approach. First, the approach relies on the highly questionable assumption that the
legislative, judicial and executive functions are distinct and separable. Formalists
believe the court should enforce bright line demarcations between the branches for
the sake of consistency, but have little consideration for the value of efficiency.
Second, a strict separation of powers doctrine stifles creativity within government
and disallows innovations, which may help institutions better serve the needs of the
people and the country. Finally, formalism – both by inference and implication –
supports majoritarianism.

9
C. Functionalism
Advocates of functionalism are more concerned with the protection of the
core functions of the branches of government rather than scripted lines of
demarcation. Power sharing and the formation of alliances between governmental
branches and institutions is not immediately alarming to functionalists because they
stress the interdependence between branches of government. Expertise, time and
money are all valid reasons for shared power structures. Where formalists are
concerned about bright lines and original intent, functionalists are concerned about
institutional competence and historical practice (Glennon 1984). It is only when the
core function of a branch – the very reason for which it exists – is subordinated
within another branch of government that functionalists see a violation of separation
of powers. Functionalist theorists remain primarily focused on the state of individual
rights. If an alliance between branches of government protects individual liberties,
6

then it is not a violation of separation of powers since functionalists hold that the
original goal of separation of powers doctrine was to guard against tyrannical rule
and impositions upon individual liberties (Redish and Cisar 1991).
Gerhard Casper (1989) explores the late eighteenth century political thinking
about separation of powers and concludes that no one principle reflective of the
concerns emerged. Moreover, he posits that in the constitutional framing, no

6
The consideration of individual liberties and the separation of powers becomes most pronounced
during the Warren Court Era, when separation of powers arguments were often used to protect
individual liberties, rather than to adjudicate interbranch disputes (See Chapter 3).

10
consensus existed as to the institutional arrangements that would satisfy the
requirements of separation of powers. Casper states, “Given the state of the
discussion of the discussion of the framers in the last quarter of the eighteenth
century and the constitutions enacted after 1776, a ‘pure’ doctrine of separation of
powers can be no more than a political science or legal construct” (212-216). Casper
is one of the primary practitioners of the historical analysis of separation of powers.
He points to the failure of attempts to interject a formalistic separation of powers
clause into the Constitution as evidence that even at the time of the Founding, it was
evident that at some point during the course of governance (as it turned out, at many
points during the course of governance) alliances and shared power agreements
would be necessary to serve the polity.
William B. Gwyn, who along with M.J.C. Vile, is one of the foremost
scholars on the development of separation of powers doctrine,
7
connects the absence
of a clear articulation of separation of powers doctrine and its goals at the time of
constitutional framing to the confusion in the modern doctrine, arguing that a
formalistic approach which is often promoted is not justified by history (1989).
Gwyn claims that the absence of consensus as to the institutional arrangements
required by separation of powers doctrine has allowed it to be used by individuals as
a “rhetorical weapon” to promote their own political claims. Because Madison
stated in Federalist No. 47 that a large variety of institutional arrangements could

7
See William B. Gwyn’s The Meaning of Separation of Powers (1965) and M.J.C. Vile’s
Constitutionalism and the Separation of Powers (1967).

11
satisfy separation of powers requirements, the ensuing debate over what these
arrangements actually look like is inherent. Gwyn points to a fundamental gap in the
Court’s understanding of separation of powers indicated by their silence as to the
objectives of such a system of governance. He maintains that from the time of the
Founding, “the distinction between legislative, executive, and judicial powers has
been inexact and highly misleading” (281). In Gwyn’s view, the Framers were not
political theorists espousing pure utopian methods of governance. They were
strongly rooted in the liberal tradition of the protection of individual liberty, English
values of checks and balances designed to ensure representative government, and yet
also aware of the unsuccessful attempts of many of the individual states to enact
formalistic articulations of separation of powers doctrine within their Constitutions.
All of this resulted in a very functional view of the structure of government, one
which would maintain liberal values, and yet form a workable model of governance.
Philip B. Kurland (1986) argues that the Framers’ expectation that separation
of powers would prevent one governmental branch from becoming dominant has
failed and pertinently the growth in the stature of the judicial branch flows from the
failure of the principle of separation of powers. He contends that the concept of
separation of powers should not flow solely from the Constitution, but also from
experience. While our common understanding of the legislative, judicial and
executive branches is that of rigid, clearly defined and clearly differentiated
institutions, experience has shown us that separations of realms of power are often

12
all but impossible.
8
As Kurland states, “…to resort to the idea that there is tripartite
division of powers… each self-defining, is to deal with phantasms” (612).
The malleability of the functionalist approach, so often criticized by
formalists, may in fact be its greatest strength. The indeterminacy of the result of
interbranch disputes in the judicial forum actually encourages compromise and
negotiations between the branches – especially the political branches, Congress and
the President.
9
Bright line demarcations actually encourage “positional
bargaining”
10
where each party is convinced that it is on the proper side of the bright
line. Positional bargaining often leads to confrontation rather than compromise
(Clair 1990, 340 – 341).
What are the goals of the functionalist approach? Beyond preservation of the
aforementioned liberties, the most radical functionalists
11
look forward to creative
innovations in governance meant to expand alliances which promote, for lack of a

8
James Madison wrote in Federalist No. 37, “Experience has instructed us that no skill in the science
of Government has yet been able to discriminate and define, with sufficient certainty, its three great
provinces, the Legislative, Executive, and Judiciary; or even the privileges and powers of the
different Legislative branches. Questions daily occur in the course of practice, which prove the
obscurity which reigns in these subjects, and which puzzle the greatest adepts in political science.”

9
Game theoreticians as summarized by Claire (1990) argue that political institutions will be risk-
averse when faced with the possibility of judicial decisionmaking based on the functionalists
approach. The indeterminacy of the outcome pushes the players to “back-down” or compromise.

10
“Positional bargaining consists of successively taking and then giving up a series of positions.
Positional bargaining informs the other side of what you want, provides a fall-back
position…[however] it fails to meet the basic criteria of producing a wise agreement, efficiently and
amicably” (Claire 1990, 341).
11
Some of the most radical attacks on separation of powers doctrine have come from those who argue
that it deadlocks government. Beyond espousing a greatly expanded view of current doctrine, many
have even offered alternatives to separation of powers orthodoxy. Lloyd N. Cutler proposes a
parliamentary system as used in England, Robinson suggests that bicameralism be abolished and
that term limits and new methods of presidential election be put in place.

13
better term, “good government.”
12
Nevertheless, there are many valid criticisms of
the functionalist approach. First it results in ad hoc judicial decisionmaking and
does not result in a clearly articulated separation of powers jurisprudence (Elliot
1989). Second, the functionalist approach often appears to be designed to do little
more than rationalize the invasion of one branch’s sphere of power by another
branch (Redish and Cisar 1991). Finally, functionalists pay little attention to
alliances outside of government, between private individuals and groups and
institutions of government (Brown 1991).

D. Alternative Theories of Separation of Powers jurisprudence
While there have been attempts to move beyond formalist/functionalist
dichotomy, most discussions of separation of powers law is still firmly rooted in the
legal model. E. Donald Elliott (1989) brands both formalism and functionalism as
attempts at literal interpretations of foundational texts. He argues that literalism in
judicial interpretation has stifled the development of separation of powers
jurisprudence because it limits the creative potential of discussion about the modern
meaning of the principle of separation of powers. As Elliott correctly point out,

12
As an example of what could be accomplished within this more radical functionalist paradigm,
Charles Gardner Geyh proposes the creation of an Interbranch Commission on Law Reform and the
Judiciary. He argues that the Constitution poses no impediment to a heightened level of legislative-
judicial cooperation contemplated by a new, more interactive paradigm. Geyh points out that the
branches of government are no longer working in “splendid isolation.” He recommends that
instead of dismantling cooperative arrangements between the branches, we should strive to take this
interplay to a higher, more systemized level thus aiding all three branches in their duties and saving
much time and energy now wasted needlessly worrying about separation of powers principles
which were never intended to keep the branches in complete isolation.

14
there is no Separation of Powers Clause contained within the Constitution and as
such, it is incorrect to attempt to interpret a non-existent edict. Nevertheless, it is
difficult to imagine, what a “non-literal” interpretation of the Constitution looks like.
Notions of separation of powers, while not rooted in a specific clause are found
throughout the Constitution and were a mainstay of discourse during the Founding
period. Furthermore, Elliott, like both formalists and functionalists, claims to speak
for the “true meaning” of the Constitution, thus placing himself squarely within the
text.
13

Redish and Cisar (1991) propose “pragmatic formalism” as a mode of
interpretation in separation of powers cases, limiting the Court’s role in those cases
to determining whether the challenged branch action falls within that branch’s
constitutionally derived powers. In fashioning its definition of branch power,
however, the authors invite the Court to look to a combination of factors, including
policy, tradition, precedent and linguistic analysis. As the authors define it,
“pragmatic formalism is a ‘street smart’ mode of interpretation, growing out of a
recognition of the dangers to which a more functional or ‘balancing’ analysis in the
separation of powers context may create” (451). Redish and Cisar maintain that the
primary function of separation of powers doctrine is to preserve both representative
government and individual liberties. In this sense, they share values with both

13
This is a problem commonly encountered in Constitutional interpretation in general and is not
limited solely to separation of powers doctrine.

15
formalists, who value majoritarian rule, and functionalists, who focus on individual
rights.
Some versions of pragmatism are rooted in economic theory and exemplify
the balancing of interests and values (Posner 1986). In economic terms, an over-
concentration of power in any one branch creates a monopoly – such as when an
independent administrative agency exercises legislative, executive and judicial
power. On the other hand, the efficiency, which results from these power-share
arrangements, is a prime economic goal. Thrown into the mix is the idea that the
judiciary represents a potentially enormous concentration of political power and thus
should not intervene too often in independently agreed upon alliances between the
executive and legislative branches. The resulting paradigm is one, which balances
these values and allows the branches to co-mingle their power spheres within a broad
range of allowable activities (Posner 1986, 582-584, 600)

E. Moving Beyond Legalism: The Limits of the Legal Model
The theoretical stalemate in separation of powers jurisprudence is caused by
two basic misinterpretations of the foundational roots of the doctrine. First,
separation of powers, as articulated by Locke and Montesquieu was to serve as a
protector of individual liberties from a tyrannical state. Later, a second value of
representative government crept into the doctrine, primarily because of the American
experience of governance. The second misinterpretation regards the effectuation of

16
separation of powers. Formalists especially, incorrectly assume that the Founders
espoused bright line demarcations between the branches and devised a highly rigid
system of government designed to prevent shared power and encroachments upon
representative democracy. The result of the infusion of these new ideas into an
ancient idea is a separation of powers that, in the current stalemate, does not
adequately guide the governance of the people. This is most obvious in the Court’s
inability to establish a clear separation of powers jurisprudence during the entire
history of the republic.
The approaches to separation of powers jurisprudence have served to
occasion a lively discourse on the divisions of power and the structure of power, but
they also serve a more invidious purpose. As with all theories of constitutional
interpretation, the advanced theories always supports and bolster the authors own
philosophy about governance, whether it be a concern for individual liberty or
representative government or something entirely different. But what do they tell us
about the process of judicial decisionmaking in relation to separation of powers? For
the most part, they are silent. As it turns out, the formalist/functional dichotomy is
neither useful, nor illuminating when trying to analyze the judicial behavior of
supreme court justices in separation of powers cases. Following the legal paradigm
the court has spent the last 100 years flip-flopping back and forth between formalism
and functionalism. What other ways could we find to talk about separation of
powers rather than in this traditional jurisprudential way? Does the role of the Court

17
within a political regime tell us something that mere precedent does not? While the
Court does need to orient itself within a structure of legal precedent – that is only one
of several factors that go into the Court’s decisionmaking in separation of powers
cases. Because separation of powers deals with the very nature of power sharing
within a regime – questions of political loyalty, institutional maintenance and a
general adherence to set of legal principles are all at play.
The next this step of this analysis is to apply the different models of judicial
behavior to separation of powers case law in order to derive a suggested model of
jurisprudence in this area of the law. In light of the misconceptions regarding
separation of powers discussed above, perhaps more illuminating accounts of
separation of powers case law can be developed.

III. Extralegal Models
A. Legal Realism
If neutral decisionmaking is a myth – then what of reality? The Classical
Legal model of judicial decisionmaking ignores the obvious fact that justices have a
good deal of discretion in deciding cases – and in exercising that discretion, justices
will be guided, at least in part, by their personal conceptions of public policy and
rights; and thus, their decisions cannot be explained solely by consideration of
existing precedent. For example, conservatives and liberals have different
perceptions about American society (e.g., do blacks still suffer from discrimination?)

18
that produce different decisions. Even when conservatives and liberals share a
certain perception (e.g., freedom of speech is a cherished right), they will likely
disagree on its value relative to competing concerns (e.g., should the speech rights of
dissidents outweigh the state's interest in maintaining order?). Even accepting the
Classical premise that recitation of law is relevant to a judge's decision, the judge
cannot decide cases without considering the context and consequence of her
decision, nor without the influence of her own thoughts and experiences. (see
generally Goldman 1973). Pushaw (1996) notes that even Justice Frankfurter
himself often created doctrines (most notably justiciability) by either ignoring or
distorting prior law to serve his own policy preferences (458-63).
Legal realism has its roots in the formation of sociological jurisprudence. In
a seminal article, “The Call for a Realistic Jurisprudence,” written in 1931, Roscoe
Pound draws a (now famous) distinction between “law in books” and “law in
action.” A new group of legal pragmatists adopted the normative paradigm that
judges could not made decisions without being influenced by their personal
preferences (Llewellyn 1930; Fuller 1934; Frank 1930). These realists argued that
at best legal rules and doctrines were boundaries in which judicial decisions were
made and that at worst, they were merely window dressing put on opinions in order
to mask the personal preferences of the judge(s). Karl Llewellyn has taken credit for
introducing the moniker “realism” into legal scholarship in his 1930 article, “A
Realistic Jurisprudence – The Next Step” (Llewellyn 1960, 512). Also in 1930,

19
Jerome Frank applied the psychological model to the study of the modern legal mind
in Law and the Modern Mind, where he proposed that it was not possible for the
jurist to simply block out his own personal preferences in favor of standing legal
doctrine.
The roots of today’s behavioral methods of judicial analysis are found in the
legal realist movement of the 1920s, led primarily by Llewellyn
14
and Frank. The
realists were responding to legal formalists and positivists, who argued that the legal
system was made up of an autonomous and self-contained set of coherent and formal
rules and principles, and that lawyers and judges trained in “legal reasoning” should
be able to discover the “correct” legal solution to any problem. This concept of a
static Law that could be learned, passed down and applied neutrally was abandoned
for the realists’ contention that law rested with judges (Llewellyn 1931, 1960; Frank
1949). Realists viewed legal rules as merely the rationalization for judicial decision
making rather than the actual source of rulings.

B. The Attitudinal Model: Diverse Preferences and Unanimous Voting
Judges are inevitably participants in the process of public policy formation;
… they do in fact “make law”; and in making law they necessarily guided in
part by their not public conceptions of justice and public policy (Pritchett).

14
In The Common Law Tradition: Deciding Appeals (1960), Llewellyn attempts to test the “method”
of American Legal Realism. He delineated and articulated the primary themes of Realism and
provided descriptive accounts of different appellate courts to support the behavioral ramification of
his assertions.

20
In 1948, University of Chicago political scientist C. Herman Pritchett offered
a positive interpretation of the normative paradigm of the legal realists. In The
Roosevelt Court: A Study in Judicial Politics and Values, 1937 – 1947, he first
posited that Supreme Court justices are “motivated by their own preferences” and
ever since, scores of political scientists have attempted to define and identify these
preferences and to show – to some statistical degree of certainty – that justices do
indeed make rulings based on their own pre-existing personal attitudes. While
Pritchett is widely credited as one of the first scholars to take this approach towards
judicial decisionmaking – the idea that Justices are a product of or beholden to the
political process which gives them their positions is certainly nothing new. As early
as 1800, Charles Pinckney, a Founder, soldier and statesman, expressed concern
about the political attitudes of justices,
If we recollect the manner in which our Judges are appointed, that
circumstance alone should induce us to adopt every mode in our power to
render them independent of the Executive. They are appointed by the
President, and if the moment after they receive their commissions they were
really so independent as to be completely out of his reach–that no hope of
additional favor, no attempt to caress could be reasonably expected to
influence their opinions, yet it is impossible for them ever to forget from
whom they have received their present elevation. Hence I have always been
of opinion that it was wrong to give nomination of Judges to the President; it
is, however, determined by the Constitution, and while the right continues in
him, it must in some degree have its effects on the good wishes and
influence of a Judge in his favor. He cannot hear anything quite so unbiased
and impartial a manner, as he would was the President unknown to him, or
had he not received any favor from him (6th Cong., 1st Sess., p. 101 (1800)).
15

15
As cited by Mark Graber, in posting “Attitudinal Model: 1800” on Law and Courts Discussion
List, May 23, 2002.

21
In his groundbreaking book, Pritchett used simple statistics to systematically
evaluate voting behavior on the Court between 1937 and 1947. He identified distinct
liberal and conservative voting blocs and revealed ideological preferences by
counting votes on particular issues. He did not, however present an explanatory
model of Supreme Court decisionmaking, but he did provide the basis for the
development of the behavioral study of the Supreme Court.
Building on insights of the legal realists – who posited that individual judges
make decisions based on their own values and policy positions – and the work of
Pritchett, social scientists have developed "attitudinal" models of judicial
decisionmaking that focus on the justice as an individualistic maximizer of policy
preferences. This group of scholars has come to comprise the now dominant force
in the study of judicial behavior – the attitudinalists. The Attitudinal Model contends
that Justices vote their raw exogenous preferences without regard or
acknowledgment of any constraints. As Lee Epstein and Jack Knight have observed,
“judicial specialists generally agree that justices, first and foremost, wish to see their
policy preferences etched into law. They are, in the opinion of many, single-minded
seekers of legal policy” (Epstein and Knight 1998). The underlying assumptions,
which make this assertion possible, are that Justices have lifetime tenure and that
their decisions are monumentally difficult to overturn by any other branch of
government (Rhode and Spaeth 1976; Segal and Spaeth 1993).
Members of the Supreme Court further their policy goals because they lack
electoral or political accountability, ambition for higher office and comprise

22
a court of last resort that control its own jurisdiction. …Because the
Supreme Court is court of last resort, the justices… may freely implement
their personal policy preferences (Segal and Spaeth 1993, 69 - 73).

Glendon Schubert was one of the first scholars to develop and test a model of
micro-level, attitudinal judicial decisionmaking. Published in 1954, The Judicial
Mind: The Attitudes and Ideologies of Supreme Court Justices, 1946 – 1963, was
Schubert’s attempt to build a model based on “attitudes” to discover the forces
hidden behind and producing Supreme Court opinions. Schubert referred to existing
scientific studies of human behavior, specifically the work of social psychologists
Louis Thurstone, Clyde Coombs, and Louis Guttman, as he attempted to pierce the
veil of judicial decisionmaking. Drawing an analogy between the facts in these
studies and those presented in the legal process, he characterized relevant case facts
as “stimuli” (22-37). Schubert sought to scale these stimuli according to their
relative ideological values. He then scaled in the same graph, or “multi-dimensional
ideological space,” the relative ideological position of a justice. A key assumption
underlying this model was that justices and cases in fact could be ideologically
scaled relative to one another (22-37).
A decade later, David W. Rohde and Harold J. Spaeth agreed with Schubert's
evaluation of the nature of the judicial process, but they proposed a different
attitudinal model based on the categorization of “attitude objects” and “attitude
situations.” In Supreme Court Decision Making (1976), the Rohde-Spaeth model
hypothesizes that individual preference is the primary determinant of judicial

23
behavior. Preferences, in turn, are composed primarily of “attitudes”(75). Borrowing
psychologist Milton Rokeach's definition, Professors Rohde and Spaeth proposed the
following behavioral outlines:
1. Attitudes are relatively enduring;
2. Attitudes are an organization of interrelated beliefs that describe,
evaluate, and advocate action with respect to an object or situation;
3. Each belief has cognitive, affective, and behavioral components;
4. Each belief is a predisposition that, when suitably activated, results
in some preferential response for the attitude object or situation, or
toward the maintenance or preservation of the attitude itself;
5. Attitude objects must always be faced with some situation about
which one also has an attitude, therefore a minimum condition for
social behavior is the activation of at least two interacting attitudes,
one concerning the attitude object and the other concerning the
attitude situation (Rohde and Spaeth at 75 quoting Rokeach 1968,
449-457).

Rohde and Spaeth observed that goals, rules, and situations influence
decisions and outcomes generally (71-72). The primary goals of justices are "policy
goals: . . . [e]ach member of the Court has preferences concerning the policy
questions faced by the Court, and when the justices make decisions they want the
outcomes to approximate as nearly as possible those policy preferences." (72) The
ability of justices to obtain their goals is aided by life tenure, which gives the justices
job security and removes ambition for higher office, and by supremacy in the judicial
system, which accords finality to their decisions (72-74).
As Harold J. Spaeth would explain more specifically nearly twenty years
later, "[c]entral to the Rohde-Spaeth formulation is the construct of attitudes, which
we define as a set of interrelated beliefs about at least one attitude object [AO] and
the situation in which it is encountered [attitude situation, or AS]" (Spaeth 1995,

24
307). In the context of judicial decisions, the attitude objects (AOs) are
conceptualized as the "legal or human persons involved in the legal process," and the
attitude situations (ASs) are the "dominant legal issues" presented (Rhode and
Spaeth 1976, 77).
16

In order to build workable, i.e. calculable, behavioral models of judicial
decisionmaking, it is essential to operationalize the attitudes of the justices in a clear
systematic way. Few judges have publicly stated their ideological preferences on
every issue. Indeed, one could argue that the most prudent judges work diligently to
appear completely neutral on the issues of the day. It is necessary therefore, to arrive
at a reliable proxy for judicial attitudes. As Epstein and Mershon have stated,
“Perhaps the most fundamental challenge is to locate sources of data that are
independent of the political actors under scrutiny” (1996, 261-262). Social scientists
have used observable attributes such as age, gender race, party identification and
religious, regional and ethnic background in order to estimate the unobservable
personal values or ideology of justices (Davis, Haire and Songer 1995; Cook 1973;
Segal and Cover 1989; Tate 1981). None of these models have gone without some
criticism.
17

As it turns out, social scientists have discovered that the political party of the
appointing President is a good proxy for a justice's attitudes (Nagel 1969 and 1961;

16
For examples see Rhode and Spaeth at pp. 161-167 for tables of actual cases and their
corresponding AO and AS values.
17
For criticism of attempts to use social background characteristics as a stand-in for attitudes, see
Sheldon Goldman and Austin Sarat, Backgrounds and Decisions in American Court Systems (1978)
and S. Sidney Ulmer, “Are Social Background Models Time-Bound?” (1986).

25
Epstein 1992; Sprague 1968). This is hardly surprising, because the appointment
process is highly political: Presidents, recognizing the policymaking role of justices,
seek to appoint justices whose politics most closely resemble their own (Schwartz
1988; Segal and Spaeth 1993; Goldman 1991). Various justices have reported being
questioned at length by administration officials, and in some instances by the
President himself, about their positions on various policy issues (Baum 1992, 42).
Judicial selection thus is inherently political and not strictly merit-based: "Merit
competes with other political considerations like personal and ideological
compatibility, with the forces of support or opposition in Congress and the White
House, and with demands for representative appointments on the basis of geography,
religion, race, gender, and ethnicity" (O’Brien 1990, 63). In turn, the appointment
process results in the appointment of justices whose decisions tend to be in line with
the ideology of the President who selects them (Baum 1992, 41-43). As Mark
Tushnet put it, “One can imagine that people could have views on the merits of
political issues…that contradict their views of the of constitutional aspects of the
same question. But the people who position themselves to be nominated for federal
judgeships are not part of that imagined group” (1987, 780).
The exceptions are memorable for their unusualness and do not undermine
the postulate that, on average, judges reflect the ideological positions of the President
who appoints them (McNollgast 1995, 1637-38). We know further that the
President's party identification reflects overarching, general principles such that a

26
Democratic President is more liberal than a Republican President (Woll 1982, 153-
67).
It is a question oft debated whether the conclusion that judicial behavior
can be explained by policy preferences and predicted by using the party of the
appointing President as a measure of preference should not be misconstrued to imply
that justices lack respect for the rule of law or vote the party line in the way elected
officials sometimes do. Yet justices remain policymakers, and the same factors that
lead a justice to identify with a particular political party and lead a President to select
a justice also lead to more or less liberal decisions by the justice because of his
attitudes (Murphy 1964; Schubert 1959).
Most adherents of the attitudinal model will concede that it does not account
for all factors in judicial decisionmaking and acknowledge that legal rules and
doctrines have been demonstrated to restrain and, in some instances, guide
decisionmaking. But they point out that the attitudinal model of judicial
decisionmaking is a valuable tool for explaining and predicting judicial behavior
(Epstein and Knight 1998).
At its core, the attitudinal model attempts to debunk the legal model.
However, it has yet to address other explanations of judicial behavior – most
specifically, it has yet to respond to institutional theories of judicial decisionmaking.
A prerequisite for the ability to turn pre-existing personal preferences into actual
legal rulings is control of the court’s agenda (Segal and Spaeth, 70). The

27
attitudinalists have produced exhaustive analyses of almost every type of issue
(except the separation of powers) and the Justices’ voting records in such cases.
They have achieved correlation rates of upwards of 90% in many of their studies. It
is evident therefore that the attitudinal model endures because empirical studies have
demonstrated that it has substantial explanatory power.
Although the attitudinal model is a good predictor of individual judicial
behavior, public choice scholars now argue that the model can be improved without
unnecessarily complicating it or detracting from its predictive ability. As discussed
in the next section, a small but growing number of judicial theorists are proposing
that a model of judicial behavior must account for the fact that Supreme Court
justices make decisions as members of a multi-judge court and as a part of a political
system (George and Epstein 1992).

IV. The Development of the Strategic Model: Rationalizing Judicial
Behavior
The common law’s … reverence for…stare decisis means that a policy
made in a piecemeal manner would be better able to win support. … When
the Court reverses itself or makes new law out of whole cloth… the holy rite
judges consulting a higher law loses some its mysterious power (Murphy
1964).

As long as law remains one of the most common means of formalizing
public policy, the judicial office in the United States will involve political,
i.e., policy-making, power . . . and [judges use that power], as J. W. Peltason
has said, 'not as a matter of choice, but of function.'"(citation omitted)
(Murphy 1964, 1).

28
While the attitudinal model is based on an atomistic understanding of judicial
behavior-the judge is viewed as an individual actor making decisions independently-
and posits that the judge seeks to maximize his/her sincere policy preferences,
termed "attitudes," the strategic model, in contrast, considers the judge as dependent
upon and responsive to the decisions of his/her colleagues on the bench and the
relative policy positions of other political institutions (George 1998, 1641).
The foundations of the strategic model are found in Walter Murphy’s
Elements of Judicial Strategy, in which it was proposed for the first time that judges
are aware of the constraints on their judicial behavior as well as the consequences of
their actions (1964). Murphy built on small group sociology theory to develop a
theory of justices as strategic actors within a collective body. Using a rational choice
framework, Murphy argues that the judiciary works within a political arena, much
like other branches of government and therefore is influenced by the political waves
surrounding their decisions. Murphy was also one of the first social scientists to
consider the fact that Supreme Court justices act collectively rather than individually.
He described how a justice could act to maximize influence on public policy
development through a process of bargaining. His approach was largely descriptive,
providing historical evidence to support the theory that justices brought together to
decide cases act like other persons forced to interact to reach a group decision, that
is, their positions are influenced by the presence of others. This influence will
produce different strategic behavior in different actors, but its effect undermines the

29
argument that justices will vote solely based on their attitudes (as proffered by the
attitudinal model).
The lingering sense that justices, while seeking to maximize their policy
preferences, are different from other political actors has prompted attempts to
consider more directly the influence of "the law." Tracey George and Lee Epstein
(1992) built on the attitudinal model by creating a macro-level model that considered
both extralegal factors, such as the composition of the Court (measured by the
number of Republican appointees), and legal factors, such as the legally relevant
facts presented to the Court in a particular case. They tested their theory through an
empirical consideration of death penalty cases decided by the Supreme Court
between 1972 and 1991 and found that an integrated model accounted for the Court's
rulings better than a strictly attitudinal model. They concluded that political as well
as legal doctrine did in fact act as a constraint in Supreme Court decisionmaking and
that "the most complete explanation of judicial outcomes should incorporate legal
and extralegal factors" (Epstein and George 1992, 333-334).
Scholars have built on Murphy's work by utilizing rational choice, or public
choice, theory to develop a model of strategic interaction within the Court
(Ordeshook 1993, Riker 1990, Epstein and Knight 1998). Strategy theorists such as
political scientists Epstein and Knight have argued that "[w]e can best explain the
choices of justices as strategic behavior, and not merely as responses to ideological
values" (Epstein and Knight 1997, 4). Recent research on the interaction between

30
Supreme Court justices suggests and documents various forms of strategic behavior
during the deliberative process, including the exchange of a vote for changes in
opinion content and the move from the minority position in a case to the majority in
order to retain authority (or perhaps simply to avoid loss of status).
There are three basic elements of the strategic model of judicial behavior: 1)
justices have goals and work towards attaining those goals, 2) justices act
strategically and 3) institutions structure or constrain justices’ actions (Epstein and
Knight 1998, 10-11).
Murphy concludes that to an indeterminate extent, policy goals underlie
judicial decision making.
18

A central assumption of strategic explanations is that actor make decisions
consistent with their goals and interests. We say that an actor makes a
rational decision when she takes a course of action that satisfies her desires
most efficiently. What this means is that when a political actor chooses
between two courses of action, she will select the one she thinks is most
likely to help her attain her goals. All we need to assume for the strategic
account is that she acts intentionally and optimally toward a specific
objective (Epstein and Knight 1998, 11).

The belief that justices act strategically begs the question: What is strategic
behavior? Scholars agree that it can include a wide array of actions, from lobbying
fellow justices to influencing future judicial appointments and finally to the actual
decision making itself (Murphy 1964, Baum 1997, Epstein and Walker 1995; Knight

18
For a discussion of the difficulty of assessing the actual “goals” of justices see Lawrence Baum’s
The Puzzle of Judicial Behavior (1997), where he points out that depending on whether one’s goals
are political, policy oriented or legal, a justice’s behavior can be deemed strategic, attitudinal or
simply adherence to legal principle. Once one attributes goals to judicial behavior, it is not simply
enough to illustrate the accomplishment of those goals. The very nature of the desired effect can
alter the entire analysis.

31
and Walker 1996). Today, the strategic model purports to be the more sophisticated
cousin of attitudinalism. The theory holds that Justices do pursue their exogenous
preferences, as in the attitudinal model, but that they also operate within a system of
constraints that sometimes forces them to make decisions that cause them to move
away from their preferences (Epstein and Walker 1995; Knight and Walker 1996).
What are these constraints? First, there are those constraints found in the
“separation of powers model” (Marks 1988), not to be confused with our issue at
hand. Marks states that the Court cannot always vote its preferences for fear of
reprisal from the other branches of government. This “separation of powers” model
therefore is not based on the basic constitutional principles we associate with actual
separation of powers, but rather on principles of ‘trying to get away with as much as
you can’, and ‘knowing when to back off.’ The second type of constraints are found
in “intra-court bargaining games” (Epstein and Walker 1995; Murphy 1964). The
Justices balance their own and each other’s preferences in order to maximize their
own utility. To the extent possible, Justices will attempt to keep a majority in issues
of great importance to them. In return they will allow concessions when strategically
necessary. Once again “backing off” of one’s true preferences is the hallmark of this
type of strategic bargaining.

32
V. Internal Forces
Murphy revealed, based on an examination of the papers of Justices Murphy,
Stone, and Taft, the intra-Court bargaining wherein a justice offers to trade his vote
and concurrence in an opinion for changes in the content and language of the opinion
(56-68). Similar studies have continued to be developed since Murphy’s
groundbreaking analysis. Most recently, political scientists Maltzman and Wahlbeck
(1996), after an extensive examination of intra-Court correspondence and conference
records contained in Justice Brennan's personal papers, discovered many modern
incidents of justices voting against their ideal policy positions in order to influence
the content of a majority opinion. In Strategic Policy Considerations and Voting
Fluidity on the Burger Court, they recount a post-conference yet pre-decision
exchange regarding Wardius v. Oregon, 412 U.S. 470 (1973), a case in which the
Supreme Court ultimately reversed the lower court and recognized a criminal
defendant's right to reciprocal discovery,
Justice Brennan's docket books reveal that Justice Rehnquist initially voted
with the minority. Nevertheless, on March 14, 1973, he circulated an
explanatory note: "I voted to affirm in this case at Conference, but before
writing a dissent to Thurgood's proposed opinion I think I will wait to see if
anything narrower . . . is written." On June 4, Justice Marshall circulated a
new draft with a cover letter stating that "since the Court appears hopelessly
splintered on the disposition of petitioner's [Wardius] contentions
concerning the state's exclusionary rule, I have decided that it may be best to
leave this question for another day." On June 6, Marshall's decision to limit
the breadth of his opinion was rewarded when Rehnquist joined his opinion
to reverse (583).

After discovering such historical evidence of opinion writing and signing
negotiations, Maltzman and Wahlbeck sought to test systematically Murphy's

33
hypothesis that "the key resource that policy-minded justices have at their disposal is
their vote and opinion-and these can be used as bargaining chips to affect the content
of the Court's opinion” (581). They looked at changes in votes between the original
conference on the merits and the Court's announcement of the final decision (known
as "voting fluidity") reflected in Justice Brennan's conference notes and proposed a
strategic model of voting fluidity to explain all discovered vote shifts. Using a
statistical tool called logistic regression
19
to examine votes on the Burger Court, they
demonstrated that justices' decisions to change their votes stemmed primarily from
strategic considerations rather than a change in their underlying policy positions
(587-590). More specifically, justices change their votes not because they are
persuaded by the other side but rather to retain what influence they can give a losing
position.
The social psychology literature provides some illumination upon the reasons
why a justice joins a majority which takes a position inconsistent with her sincere
policy preferences. Justices may cast a vote contrary to their ideological position
because they like to win (or to be perceived as "winners"), or perhaps because they
are loss averse.
20
They simply may prefer to be in the majority: "Justices on the

19
As Agresti and Finlay (1986) explain, “Logistic regression, unlike linear regression, assumes a
dependent variable (the event to be explained) and is dichotomous (has two possible values), and
therefore is better suited than traditional linear regressions for analyzing judicial decision which like
many political variables is dichotomous.”
20
The application of loss aversion of judicial behavior is a rather new phenomenon and has not as yet
been fully tested only brought up as a possible area of future study. The phenomenon of loss
aversion in the instance of a riskless choice (a choice without uncertainty) is well documented in the
psychological literature (Kahnemann 1991).

34
court, like individuals in all institutions, may feel uncomfortable remaining outside
the dominant group. As a result, justices may change their votes from the minority to
the majority because of small-group influences that are independent of policy
preferences” (Maltzman and Wahlbeck 1996, 583).
21

Justices may also act as swing justices because they seek status by
establishing themselves as the pivotal vote on the court, shifting between majority
coalitions (Schubert 1959). These justices may cast the decisive vote in close cases
(e.g., where there is a five-to-four vote split) and thereby appear to have greater
policymaking power (George 1990). In a range of issue areas, Justice Anthony
Kennedy appears to shift between voting blocs in an effort to earn the role of
deciding vote (Coyle 1995; Rosen 1996). Justice Sandra Day O'Connor has also
been considered a pivotal justice, although within certain, limited issue areas like
affirmative action, abortion rights, and First Amendment Establishment Clause
jurisprudence (Coyle 1995; Wermeil 1990). Scholars have identified several justices
as filling this key position: Hugo Black, Tom Clark, Charles Evans Hughes, Lewis

21
Justice George Sutherland, who served on the Court from 1922 to 1938, acceded on a number of
occasions to a majority opinion with which he did not agree rather than dissent alone. He wrote to
Chief Justice Harlan Fiske Stone in 1930 that “I was inclined the other way [in Broad River Power
Co. v. South Carolina, 281 U.S. 537 (1930) ], but I think no one agreed with me. I, therefore, yield
my not very positive views to those of the majority.” (quoted in Murphy at 52). Similarly,
Sutherland told Stone regarding Lamb v. Schmitt, 285 U.S. 222 (1932) “I voted the other way, but I
have acquiesced in other outrages and probably shall in this. Shall let you know Saturday, though I
should like more time to forget.” (quoted in Murphy at 52). He did acquiesce. Finally, in Alaska
Packers Association v. Industrial Accident Commission, 294 U.S. 532 (1935), Sutherland wrote on
the back of Stone's slip opinion in the case: “Probably bad-but only a small baby. Let it go.”
(quoted in Murphy at 52-53).

35
Powell, Stanley Reed, Owen Roberts, and Potter Stewart (J. Howard 1968; Schubert
1959; Sprague 1968; Schultz and P. Howard 1975).

VI. External Forces
A strategic, policy-oriented justice considers not only the positions of her
colleagues but also of other actors who can influence policy outcomes. The Supreme
Court's statutory rulings can be and have been overruled by Congress and the
President. Although extremely unlikely, its constitutional rulings can be overturned
by the amendment process It would be surprising if these external forces did not
influence Supreme Court decisionmaking. A justice truly seeking to maximize his
sincerely-held preferences would want to consider whether his decision would be
overturned by an actor above her in the hierarchy.
Historically, scholars did not incorporate environmental variables such as the
interrelatedness of the judicial and political subsystems into research design (Cook
1973). In recent years, scholars, again relying on game theoretic designs, have
developed formal models of the strategic interplay between the Supreme Court,
Congress, and the President; these so-called "separation-of-powers games," like the
internal dynamics strategic model, presume that justices seek to maximize their
personal policy preferences (Epstein and Walker 1995; Marks 1989; Segal 1997).
But, as Segal explains, the separation-of-powers games, again like the internal
strategic model, emphasize the role of strategy:

36
The positive political theorists argue that in order to come as close as
possible to achieving that goal the Court must frequently defer to the
preferences of Congress, especially in statutory interpretation cases.
Attitudinalists, alternatively, argue that the rules and structures of the U.S.
political system allow the justices to vote sincerely, that is, without
constraints from Congress and/or the president (Segal 1997, 28).

And what of separation of powers case law? Empirical studies of
Court/Congress/President interactions have found that the Court is responsive to the
preferences of the other branches of government, particularly Congress. For
example, in the statutory interpretation area, the Court is influenced by the current
legislators' preferences, as opposed to the preferences of those who wrote the law
(Martin 1997, 2001). Yet, in examining separation of powers cases of last 50 years,
this study will show that the Supreme Court only gives deference to one branch of
government, the judiciary itself. This type of “selfish” preference with little
acknowledgment of countervailing restraints is not easily anticipated by the strategic
model. This inability to account for such systemic, rather than individual
preferences is one of the weaknesses of this model, especially in regards to
separation of powers case law.
The strategic choice view of the world too often focuses on individual actors
operating at the micro-level in a well-bounded scenario where choices and pay-offs
are clear. This approach, however does not and cannot account for macro-level
phenomena and often avoids social aggregates. When social aggregates are
addressed, groups are often treated as coherent strategic actors – a move that often
provides untenable results, especially in separation of powers cases. The strategic

37
model does not flex easily and therefore has difficulty when new actors and changed
preferences, which so often occur in the real world, are introduced in a game. “The
story of politics ends up sliced and frozen into artificial moments on the slide of a
powerful, but tightly focused microscope” (Pierson and Skocpol 2003, 20).

VII. Ruling Coalition Theory
The theory of ruling coalitions, as differentiated from a straightforward
strategic approach, states that the Court will side with the controlling elites,
regardless of its own political affiliation. Therefore, in this analysis, the particular
ideological make-up of the Court becomes far less relevant than the ideological tenor
of the ruling coalition. The role of the court, in this type of analysis, is far more
reactive rather than proactive. As Mark A. Graber states, the Court becomes
involved in disputes “only when the dominant national coalition is unable or
unwilling to settle some public dispute” (1993, 36). This leaves little room for
questioning whether the national coalition is within certain constitutional guidelines
or not. Separation of powers issues present us with some very engaging questions
within the context of a ruling coalition analysis. In the cases at hand, the conflict
was always between and among ruling elites. How then does the Court arrive at a
decision? Traditional theories, as described by Dahl (1957) and Shapiro (1981) tell
us that the Court generally sides with the ruling elites, thus legitimizing their rule.
These authors offer as evidence of their theory the fact that presidents appoint

38
justices which reflect their own political views and are also likely to be confirmed by
the dominant majority in the Senate. Therefore,
It is reasonable to conclude, then, that the policy views dominant on the
Court will never be out of line for very long with the policy views dominant
among the lawmaking majorities of the United States (Dahl 1989, 594).

Others, like Jonathon Casper argue, that while the court is a political player,
it is not merely a legitimizing stamp on the policies of the ruling majority and in fact,
upholds the rights of minorities more often than Dahl suggests.
Dahl offers a sophisticated ‘political’ view of the role played by the Court,
arguing that it is an active participant in the ruling national coalitions, which
dominate American politics but that the Court does not perform the task of
protecting fundamental minority rights that is often attributed to it (Casper
1989, 599).

In contrast to Dahl’s view, Casper goes on however, to give us the counter
example of the Warren Court, which
. . . one associates with...activism and influence in national policy making
and protection of fundamental rights of minorities against tyrannical or
indifferent majorities (600).

On some rare and inconsequential occasions, the Court may rule against the
ruling coalition, merely to uphold its own legitimacy. Separation of powers cases,
however, are not the least bit inconsequential. They cut to the very foundations of
the power bases of the three branches.

39
VIII. The Development of the New Historical Institutionalism
It appears that from Pritchett to Segal and Spaeth to Epstein and Knight, there
is ever more convincing empirical data to suggest that justices are policymakers and
that the policies they promulgate are in direct reference to their own personal
preferences. Legal scholars have continued to maintain however, that the bulk of
judicial decisionmaking is still highly constrained by an adherence to legal
precedent. More recently, political scientists have begun to suggest ways to bridge
the gap between a fixation on pure policy preferences and blind return to the old, and
never very convincing legal model.
Having stretched the applicability of other theories of judicial decision
making in separation of powers cases, the only remaining tool for adequately
describing judicial behavior in the cases at hand is new historical institutional theory.
This type of analysis broadens “…the scope of inquiry to include features of judicial
behavior besides votes on cases – such as the act of constructing an authoritative
ideology or strategizing about how to cope with potential opponents” (Clayton and
Gillman 1999, 6). This type of institutional analysis has its roots in the influential
work of James March and Johan Olsen (1984), which was later theorized for use in
public law by Rogers M. Smith (1988). Different scholars have divided
institutionalism into various schools. The two most prevalent distinctions within the
field are between historical/interpretive new institutionalism and rational choice new
institutionalism. Rational Choice Institutionalists use exogenous preference and

40
institutional constraints to model Supreme Court behavior.
22
As such, this paradigm
is not readily distinguishable from the Strategic Model and is open to the same
analysis as discussed above. Our focus in this discussion will be on
historical/interpretive new institutionalism.
While other judicial behaviorists view decisionmaking in isolation, historical
institutionalists analyze the make-up of entire organizations. Rather than looking at
discreet decision points, institutionalists pay close attention to long term trends and
critical junctures. Avoiding the pitfalls of dissecting short term maneuvers, they try
to understand the “overarching contexts and interacting processes that shape and
reshape states, politics, and public policymaking” (Pierson and Skocpol 2003, 1).
There are three important features of the historical new institutionalism: 1. a
concentration on substantive questions and agendas; 2. an emphasis on temporal
arguments; and 3. attention to contexts and configurations (Pierson and Skocpol
2003, 3). Institutionalists attempt to develop narratives which explore the interaction
and development of institutions and processes over time. This contextual approach
broadens the scope of inquiry and affords the possibility that multiple factors outside
of particular decision points may actually be critical to outcomes. Unlike
behaviorists, institutionalists do not operate on the assumption that operative
variables are independent of each other. Rather, in any situation a variable could be
influenced by overarching temporal, contextual or substantive forces. “Given these

22
For an excellent overview of some of the pitfalls of the rational choice method see Green and
Shapiro 1996.

41
expectations, research in this tradition tends to move up form single institutions to
broader contexts – historical institutionalists look at forests as well as trees”
(Pierson and Skocpol 2003, 15) (emphasis in original).
The attitudinal, strategic and ruling coalition models of judicial behavior all
view Supreme Court decision making as a type of game. The hand that one is dealt
(the ideological make-up of the court), the other players in the game (intra-court
bargaining games and the influence of ruling coalitions), as well the game itself (the
issue at hand) all take precedent over any type of established constitutional
principles. Indeed, the behavioral models would contend that no such principles
truly exist. The testing of these models in separation of powers cases, however,
points to a different story. How can it be that justices of such different ideological
backgrounds vote identically in separation of powers cases? How can it be that the
Court routinely votes against the ruling coalition in such cases? The answer lies in
the very nature of the Supreme Court itself and the fundamental principles that
Justices adopt once they become members of the Court.
A review of separation of powers cases in the modern era reveals that there
are some unique institutional constructs which come into play when the Supreme
Court is faced with separation of powers issues. These constructs are 1) the
distinctive mission of the court; 2) the prevailing jurisprudential regimes and 3) a
type of “selfish” institutional maintenance.

42

C. The Concept of Mission
The primary features of the historical new institutionalism are: institutions
constitute actors, institutions as indelibly linked with ideas (institutions as
“receptacles of ideas”) and the important role of history (Clayton and Gillman 1998;
Gillman and Clayton 1999). Interpretive institutionalism does not simply hold that
institutions impose constraints on personal selfish preferences, rather it asserts that
institutional norms and functions actually constitute and shape the preferences of the
judges. Preference formation is not exogenous to the institution, but is a function of
affiliation with the institution (Smith 1988; Gillman 1998).
The three features of the new institutionalism combine to form the concept of
an institutional mission. Central to the ideal of the historical/interpretive new
institutionalism are the concepts of mission and organizational attributes (Gillman
1998, 14). An identifiable institution exists only when these components are present.
While this may be an accepted formulation of the general principle of an institution
as an existent entity, the contention begins when attempting to denote and define a
particular institution’s mission and attributes. In the case of the Supreme Court, the
key to understanding its behavior is the proper identification of its mission. While
the nature of the Court’s mission has yet to be fully determined, many of its
essential attributes can be gleaned from the founding document of the Supreme
Court, Article III of the Constitution. The Court’s central mission in regards to

43
separation of powers is to simultaneously enforce the partitions of power as well as
the checks and balances framed in the constitution. Clayton (1998) goes further to
say that the Court’s mission not only defines its own limited functions, but also
defines its role within the political system. The idea of mission fills the gaps created
out of the failures of attitudinalism. If judges are not following personal preferences,
then what goals are they pursuing? One can speculate that there are two
possibilities: self-interest or system maintenance.
New institutionalism is an especially useful tool in analyzing separation of
powers cases because separation of powers refers to the very nature of the federal
system and therefore does not fit neatly into the language of policy preferences.
Institutionalism moves attention away from the attitudes of individual justices and on
to the evolving role of the court in the political system. “Like traditional, pre-
behavioral legal studies, [new institutionalism] takes seriously the effects of judicial
norms and legal traditions and attempts to situate the court in larger political
contexts” (Clayton and Gillman 1999, 5).
…Historical institutionalists, …typically do meso- or macro-level analyses
that examine multiple institutions in interaction, and operating in, and
influenced by, broader contexts. They pay close attention to ways in which
multiple institutional realms and processes intersect with one another, often
creating unintended openings for actors who trigger changes. Historical
institutionalists investigate the rise and decline of institutions over time,
probing the origins, impact, and stability or instability of specific institutions
as well as broader institutional configurations (Pierson and Skocpol 2001,
13).

44
D. Jurisprudential Regimes
Constitutional regimes, in various contexts have long been recognized by
scholars and continue to be the theme of many illuminating historical accounts of the
Court’s jurisprudence and its role in American politics (Ackerman 1991; Whittington
1999; Clayton and May 1999). Building on the work of Martin Shapiro (1968),
Richards and Kritzer (2002) have built a persuasive argument for the concept of
jurisprudential regimes. Any mention of an adherence to fundamental constitutional
principles makes behavioralists uneasy at best. Their work has traditionally been
centered on identifying underlying reasons for the voting patterns of Supreme Court
Justices other than those reasons articulated by the justices themselves through their
opinions. However, adherence to a jurisprudence, when embedded within an
institutional construct serves to guide the justices in their decisionmaking and in
some areas, such as separation of powers, can be determined to be the most
influential aspect of their rulings. The very definition of the Court as an institution
includes the notion that it is embedded with ideas (Orren 1995). It is important to
note that jurisprudential regimes do not refer to a “mechanistic law” as in the legal
model, but rather “law as institutional construct” (Richards and Kritzer 2002, 306).
[Even if] stare decisis does not dictate automatic results,… [that] does not
mean that legal decision making is a form of free play in which every judge
can do exactly what he pleases…[H]e is constrained by the previous state of
the law insofar as it is clear. Because it is never entirely clear he always has
some discretion. And he is likely to find the law less and less clear and
exercise more and more discretion as he finds that the old law is giving the
bad results (Shapiro 1968, 17 as quoted in Richards and Kritzer 2002, 306).

45
This adherence to jurisprudential regimes serves many purposes. In an area
of law such as separation of powers, where there are no clear guidelines as to liberal
or conservative positions, where intra-court bargaining games do not function
because of lack of clear positions, where the conflict is between ruling coalitions or
where the ruling coalitions are unidentifiable, the rule of law serves as a tool for
determining cases with broad systemic consequences. Furthermore, adherence to
constitutional principles of separation of powers reinforces the primary principles of
the polity (Kahn 1994) which is part of the institutional mission of the Court.
The Court, in dealing with separation of powers cases, does not latch
on to weak articulations of statutory law or a judicial doctrine constantly in flux such
as formalism and functionalism. It does, however, give the utmost weight to explicit
textual (i.e. Constitutional) attribution of defined power to one branch to the
exclusion of others. For example, while the Rehnquist Court was not presented with
any disputes over foreign affairs powers, we can nevertheless note that in such
separation of powers cases, the Court heavily relies on textual edicts. The
Constitution is much more precise in its articulation of the scope of powers held by
the Executive in the realm of foreign affairs. Article II, § 2 explicitly enumerates a
number of powers exclusive to the President (e.g. the powers of the Commander-in-
Chief, the power to make treaties and appoint ambassadors). Beyond these specific
provisions in the Constitution, the broader national security implications of foreign
policy dictates that the United States convey a unified position to the world and that

46
the President bears a special role in that regard (Cohen and Varat 1997; Tribe 1988;
Witt 1990).

E. Institutional Maintenance
Institutional maintenance is an important attribute in any institution and is
especially strong within the Supreme Court (Smith 1988; Gillman 1994; 1998).
Thus, one finds that in cases involving the judiciary,
23
the court will protect its
territory with great tenacity. Separation of powers cases are often self referential for
the Court.
24
In these cases, the justices seem to be articulating a strong preference –
not an exogenous political preference – but rather, an endogenous, institutionally
constituted preference to maintain and even expand the role of the Judiciary in the
American political system.

F. New Institutional Decision Tree for Separation of Powers Cases
We see therefore, that there are three aspects of institutional analysis in
separation of powers cases. First, there exists a legalistic doctrinal hypothesis which
recognizes the court’s desire to maintain traditional legal doctrinal ideas. The court
operates within jurisprudential regimes. Second, within the structure of separation of
powers case law, one finds that in cases where the Judiciary itself is one of the

23
In Chapter 5 for example, please see discussion of Nixon, Clinton v. Jones, and Boerne.
24
The Rehnquist Court especially, has dealt with a proportionately large number of separation of
powers cases dealing with the powers of the Judiciary itself.

47
branches in dispute, the Court almost as a rule, defends its own base of power and is
even open to expansions of judicial power. Third and lastly, the Court as an
Institution has a distinctive mission of system stabilization and legitimating the
dominant coalition.
As discussed, it is not entirely useful to continue to speak of separation of
powers jurisprudence within the formalist/functionalist paradigm nor are separation
of powers cases fully explained by the dominant models of judicial behavior. I
propose here, in their stead, a series of queries, formulated into a decision tree, that
goes beyond traditional jurisprudential language. The decision tree, using the
hallmarks of new historical institutionalism, views the separation of powers as a
series of inter-branch or inter-institutional disputes. The Court, itself one of the
branches of government vying for territory and power, is put in the role of referee
between institutions. This results in interesting and not often intuitive results in the
adjudication of inter-branch disputes. I will show that the new historical
institutionalist decision tree does a better job explaining and predicting the decisions
of the Court in separation of powers cases in the post New Deal period than the
dominant models of judicial behavior. While this study does not purport to build a
new institutional “predictive engine” of separation of powers cases, it does suggest
that asking the following questions, based on the concepts of mission, institutional
maintenance and jurisprudential regimes, can lead directly to the resulting opinion by
the court. I have listed them in the order that justices seem to value them. A

48
separation of powers question put through these queries and answered in the
affirmative at any point, results in the opinion of the court.
Figure 1. Historical New Institutionalist Decision Tree for Separation of Powers
Cases

That branch will likely preserve
power without encroachment.
Yes
Yes
Yes
Is there an explicit
textual (i.e.
constitutional) basis of
power for one of the
branches?
Is the Judiciary
involved in the
dispute?
Is the Court being
asked to disrupt an
established power
arrangement?
Is the Court being
asked to legitimize a
new expansion of
power?
Court will refuse new expansion
of power.
Maintain or even expand judicial
power.
Do not interfere with the
established power arrangement.
Yes
No
No
No
No
Cannot predict
Jurisprudential
Regimes
Institutional
Maintenance

Mission of Court
Separation of Powers
case

49
This historical new institutionalist decision tree, establishes a series of four
questions which encompass the ideas of jurisprudential regimes, institutional
maintenance and the mission of the Court. By placing the queries in their specific
order, the chart shows the relative importance of each institutional construct in
relation to separation of powers cases. At each point of the decision tree, a “yes”
answer results in the expected opinion of the court from an institutionalist
perspective. A “no” answer leads to the next question and so on, until a “yes”
answer is reached. If none of the queries along the decision tree address the issue at
hand, than the model fails to predict any outcome.
The results are very encouraging. From the Vinson Court to the Warren,
Burger and Rehnquist Courts, the New Institutional Decision Tree performs better
than any other model of judicial behavior.
25

25
For example in regards to the Rehnquist and using the established criteria, the results
indicate that an institutional approach to judicial decision making in separation of powers
cases yields an 86% correlation rate with 12 of the 14 cases predicted correctly. In cases
where there is a constitutional attribution of power to one branch to the exclusion of others,
the Court will uphold and defend that power, even at its own detriment (see Nixon). In
separation of powers disputes involving the judiciary, the institutional maintenance
component of the Court’s mission will always lead it to preserve and/or expand its own
power base. Thus the nearly unanimous rulings of Mistretta, Munoz-Flores, Freytag,
Franklin, Plaut, Clinton v. Jones and the majority opinion in Boerne are all highly
predictable as they are at their core, institutionally based. In cases not involving the
judiciary, the court will seek to stop the expansion of power or the encroachment of one
branch upon the other. In Skinner and Loving, the Court refused to negate a well established
peace and in Metropolitan and Clinton v. New York, the Court refused to sanction new
expansions of power. Which of the case do not fit the institutional model? During the
Rehnquist Court, there are only two: Morrison and Miller. The perplexing case of Morrison
allows for a discussion of the underlying constitutional tension between separation of powers
and checks and balances. If an institutional perspective maintains that the Court seeks to
adhere to fundamental constitutional principles, then there must be some allowance for the
Court to weigh the benefits of strictly enforcing power divisions versus the systemically

50
IX. IV. Construction of the Study
As can be surmised by this discussion thus far, this study presents a
systematic test of all of the aforementioned models of judicial behavior in separation
of powers cases between 1946 and 2005. Chapter One begins with an analysis of the
history and development of the American separation of powers doctrine. In order to
analyze the jurisprudence of the Vinson, Warren, Burger and Rehnquist courts, it is
essential to frame that jurisprudence within the foundation of the American
separation of powers framework. This chapter will begin with the philosophical
underpinnings of the separation of powers and culminate with a survey of key
separation of powers cases from the birth of the republic, up to the beginning of the
Vinson Court.
Starting with the Vinson Court, the study then become far more
detailed and begins to run each Court and each case through the jurisprudential and
behavioral models. Why begin with the Vinson Court? Very simply, the data
required to apply the strategic and attitudinal models are available only as far back as
the Vinson Court. Also, we often refer to the Vinson Court as the beginning of the
“Modern Era” in the Supreme Court. This is primarily due to the stark

desirable checks created by some overlap of power. In retrospect, Morrison was the perfect
opportunity for the court to impose a strong check on the Executive while only minimally
abridging its powers, if at all. However, such an analysis is only possible after the fact and
as such cannot be accurately predicted by the institutional model. In Miller, the only
decision split 5 – 4, the court stated that the automatic stay provision of the PRLA stands for
the proposition that Congress has the power to revise or suspend judicial decisions as long as
those decisions are not final (as in Plaut) and as part of an overall implementation of new
legal standards.

51
jurisprudential and political revolution that comprised the New Deal Era. The
consideration of the court begins with a brief introduction of the political dynamics
of the time followed by a biography of all justices that served in that court. The
study proceeds to discuss all the separation of powers cases for that court and then
run the cases through each behavioral model. Finally, a summary of the results is
stated. Along the way, there are many tables and figures that have been constructed
to clearly summarize results and provide a framework for the analysis. Other charts,
such as the one which concludes every chapter and summarizes every separation of
powers case for that era, are simply included for ease of reference for the reader.
Each Court will be covered in turn: Chapter 2, the Vinson Court; Chapter 3,
the Warren Court; Chapter 4, the Burger Court; and Chapter 5, the Rehnquist Court.
Finally Chapter 6 will conclude the study and offer suggestions for future research.

52
Chapter 1

The History and Development
of the American Separation of Powers Doctrine

I. Introduction
If the Supreme Court’s separations of powers decisions reflect the influence
of distinctive principles, it will be revealed in the history of separation of powers
doctrine. A discussion of separation of powers doctrine generally begins with
Charles de Secondat, baron de Montesquieu’s famous edict,
When the legislative and executive powers are united in the same person or
body, there can be no liberty because apprehensions may arise lest the same
monarch or senate should enact tyrannical laws to execute them in a
tyrannical manner. Were the power of judging joined with the legislative,
the life and liberty of the subject would be exposed to arbitrary control, for
the judge would then be the legislator. Were it joined to the executive
power, the judge might behave with all of violence of an oppressor.

It is from these few lines that we derive the commonly accepted formalistic
approach to the divisions of power and the structure of government. But is this sole
account an accurate representation of the historical development of separation of
powers theory? James Madison directly quotes Montesquieu in Federalist Number
47, a text considered to be the foundation for American separation of powers
doctrine. For this reason, scholars and the Court alike have long assumed that
Madison and the Founders espoused a very rigid, formalistic, tritarian method of
governance. The immediate impulse is to trace separation of powers theory from its

53
formalist Montesquiean roots to its perceived abandonment in our modern
functionalist American bureaucracy. A historical analysis will show, however, that
separation of powers was never anticipated as a strict formalist approach to
government and that even the founders tempered any formalist tendencies with
considerations for a practical, pragmatic and functional method of governance.
Separation of powers is a pre-supposed rather than rigidly articulated concept within
the Constitution. The powers delegated to each branch by the framers are separate
but not discreet. The exercise of power by one branch often impacts the ability of
another to operate within that same sphere. This system of pushes and pulls, checks
and balances “amounts to a prescription for political struggle” (O’Brien 1991, 25).
American separation of powers divides government both vertically and
horizontally; between the federal and state governments, and between the executive,
legislative and judicial branches. This dissertation focuses on the separation of
branches.
26
The chapter presents an overview of the development of separation of
powers – from the classical philosophers to the Founders and a review separation of
powers jurisprudence from 1787 to 1946, highlighting dominant themes and critical
historical moments in our understanding of the concomitant workings of the three
branches of American government.

26
Vertical separation of powers as embodied in principles of Federalism address questions unique to
the independence of local governments. While many of the issues overlap with conventional
notions of separation of powers, the division of the branches has produced much scholarship unique
to the particular concerns of representative democracy and individual liberty.

54
It is important at this point, to reiterate the need for a clear understanding of
separation of powers doctrine. Previous research has shown that the voting patterns
of United States Supreme Court Justices in the area of separation of powers do not fit
standard paradigms of judicial behavior. Separation of powers does not fit neatly
into commonly perceived categories of liberal and conservative positions. This
discussion will attempt to explain some of the unique attributes of separation of
powers as a legal issue and to dispel some misconceptions about the development
and current state of separation of powers theory. It is hoped that by analyzing
separation of powers theory, a comprehensive model of separation of powers
jurisprudence can be devised and more illuminating accounts of judicial behavior can
be derived.

II. The Origins and Development of Separation of Powers Theory
A. Classical Theory
In contrast to the more modern concept of separation of powers, mixed
government (the idea that there are distinct functions if not always distinct
institutions within a government) derives from classical Greek, Roman and medieval
thought. In an early version, the mixture proposed in Plato’s Laws combined
monarchy and democracy. Aristotle presented the mixed regime or polity in the
Politics, as a solution to the problem of discovering the best practicable form of

27
Much of the discussion presented here on classical theory as it relates to separation of powers is
based on Barbara B. Knight’s very important work on the ancient origins of the doctrine (1989).

55
government. Aristotle claimed to have discovered a way for citizens to rule in the
interest of all: a combination, or mixture, of two classes, oligarchs and democrats,
the few rich and the many poor but free. While Aristotle wrote of “functions” of
government in the Politics, he did not conceive of these in terms of legislative,
executive and judicial, the familiar contemporary trio. Instead he described
“deliberative” functions, those performed by magistrates, and by judges. These
functions were not parceled out to distinct branches of government; magistrates and
the assembly might share deliberative functions, for example (Knight 1989; Vile
1967; Gwyn 1965).
In the Greek historian Polybius’ presentation of a mixed regime, the tripartite
combination clearly appears. It has been suggested that Polybius was the first to
combine the concept of the mixed constitution, initially developed by Plato and
Aristotle, with a division of power, new with his theory. Aristotle had combined
oligarchy and democracy, two forms of government, by concentrating political
power in the middle class. Polybius structured government into the monarchy (the
consulate), the aristocracy (the senate), and the democracy (the assembly). It is also
interesting to note that the legislative function was split between the senate and
assembly, which served as a precursor to later more solidified ideas of bicameralism
(Knight 1989, 3-19).
28

28
Cicero also addressed mixed government in his discussion of the fall of Rome. However, as Knight
(1989) points out, his material from Aristotle, Plato and Polybius is so intertwined and inadequately
articulated that it is nearly impossible to sort out.

56
After this initial development of mixed government, the theory went into a
decline until the introduction of the philosophy of St. Thomas Aquinas. Aquinas
revisited Aristotle’s political philosophy including the idea of mixed government,
and although Aquinas himself favored a monarchy in the best of conditions, he found
the stability afforded by a combination of institutions attractive (Knight 1989; Gwyn
1965).

B. The Liberal Tradition
While it has been established that the conception that government consists of
distinct functions can be found as far back as ancient Greece (Knight 1989; Vile
1967; Gwyn 1965); the idea that distinct institutions should carry out these distinct
functions is generally traced to seventeenth century England (Vile 1967; Gwyn 1965;
Casper 1989; 1997). Although John Locke is most commonly given credit for his
contribution to the evolution of the notion of separation of powers, “the authorities
on whom the colonists relied most often for such devices were the liberal heirs of the
classical and Florentine tradition of republican discourse, such as James Harrington,
Montesquieu, and Hume and also the continental publicists, especially Vattel and
Burlamaqui” (Smith 1990, 15). Unfortunately, many political writers, including
Montesquieu, overlapped notions of separation of powers with another requirement
for liberty: mixed government. Theories of mixed government centered on
institutions aimed at balancing different classes, interests and power holders.

57
What has spurred even more debate is whether or not any important theory of
separation of powers can be found in the work of John Locke. William Gwyn
(1965) places the connection of Locke with separation of powers as part of his
version of the rule of law. For Locke, one of the essential conditions for enjoying
increased security and civil liberty under government was the separation of
legislative from executive functions. Certainly Locke’s view of separation of
powers, however entangled it may still have been with notions of mixed government,
provided a significant theoretical bridge to the ideas of Montesquieu and eventually
to those of the American Founding Fathers.
A key to understanding the differences between mixed government and
separation of powers is the realization that mixed government presupposes a mixed
society, with qualitatively differentiated regime elements, and that separation of
powers presupposes an individually heterogeneous democracy. Thus, for both Locke
and Montesquieu in the eighteenth century, the mixed regime and separation of
powers would still be at least somewhat entangled since the political environment
contained “elements of both organic mixed society and atomistic heterogeneous
society” (Casper 1997, 28). The transition form one to the other was under way but
not yet complete.
In Montesquieu’s writings, separation of powers and balance of powers are
presented as two distinct, yet interdependent principles. The system of balance found
in Montesquieu’s work was primarily derived from notions of balance in physics. If

58
government is seen as a scale, then the forces on each side must be equal. In The
Spirit of the Laws, Montesquieu defined political liberty in several ways. Most
important for our discussion here are that (1) liberty is the ability to do what one
wishes to do, rather than what one is forced to do, and (2) liberty to do what is
permitted by law. Implied in Montesquieu’s philosophy, and in many British
thinkers who preceded him was the ideal of negative liberty – freedom from undue
incursions into the lives of citizens by the state. His explicitly articulated ideas of
separation of powers, therefore, were meant to limit government attacks against
individual liberties (Cohler, Miller and Stone 1989). This is an extremely critical
point as will be seen in the discussion below, his recommendations regarding the
divided structure and power of government were later re-interpreted and many claim,
misinterpreted, as a protection of representative government.

C. The Founding
When the colonies separated from Great Britain following the Revolution, the
framers of their constitutions were well versed in the liberal philosophy of separation
of powers and they strongly expressed it in their state constitutions.
29
The theory of

29
The Constitution of Virginia (1776) states, “The legislative, executive, and judiciary department
shall be separate and distinct, so that neither exercise the powers belonging to the other; nor shall
any person exercise the powers of more than one of them, at the same time…” See also the
Massachusetts Constitution of 1780, article XXX which states, “In the government of this
commonwealth, the legislative department shall never exercise the executive and judicial powers, or
either of them; the executive shall never exercise the legislative and judicial powers, or either of
them; the judicial shall never exercise the legislative and executive powers, or either of them; to the
end it may be a government of law, and not of men.”

59
checks and balances was not present in these new state charters, primarily because
the philosophy was associated with their previous colonial master, Great Britain. As
a consequence of this omission, violations of the articulated separation of powers
doctrine were commonplace prior to the convening of the Constitutional Convention.
The failed experimentation with separation of powers doctrine by the States guided
the Framers during the summer of 1787 as much as any classical liberal theory.
30
In
Federalist No. 47, Madison reviewed state constitutions and concluded that in
practice “there is not a single instance in which the several departments of power
have been kept absolutely separate and distinct,” despite the text of those
constitutions calling for “the emphatical and, in some instances, the unqualified”
separation of powers.
Following independence, many state constitutions had in form adopted a
separation of powers doctrine, but had in fact left the executive and judiciary
dependent on the legislature. In the years preceding the Philadelphia Convention,
many of those governments behaved in ways that inspired the conviction that
legislatures were capable of tyranny and excess. By 1787, Americans widely
understood that even representative government could result in tyranny if
governmental power were concentrated and unchecked. They accepted that a
“dependence on the people is, no doubt, the primary control on the government; but
experience has taught … the necessity of auxiliary precautions” (Madison, Federalist

30
For the most comprehensive articulation of the founding period see Gordon S. Wood’s The
Creation of the American Republic (1969).

60
51). In short, representative democracy, if unaccompanied by an effective separation
of powers, insufficiently protected liberty (Wood 1969, 448-453).
As the delegates entered the Constitutional Convention of 1787 in
Philadelphia, there were two prominent themes running through the proceedings;
the first was the acknowledgment of the tyrannical behavior of the English King; the
second was the profound dissatisfaction with the colonies first attempt at nationhood,
the Articles of Confederation (Kmiec 1987, 73). The Articles of Confederation had
been a reaction to the tyranny of the King and thus produced an ineffectual central
legislature, subservient to individual state legislatures. The supremacy of the King
had been replaced by “the supremacy of faction and the tyranny of shifting
majorities” (Levi 1976, 375).
The doctrine of separation of powers, as articulated in the Constitution, was
based on the two general principles: government should be separated into three
branches – legislative, executive and judicial; and no one person or group should be
able to serve in more than one branch simultaneously. At the same time the
seemingly contradictory doctrine of checks and balances was also installed. The
inability of the states to keep their institutions of government confined to their
constitutionally proscribed power spheres, drove Madison and others to argue that
some overlap of power and oversight of duty was necessary in order to maintain the
overall separation of powers. Madison states in Federalist No. 51, “…so contriving
the interior structure of the government, that its several constituent parts may, by

61
their mutual relation, be the means of keeping each other in their proper places.” In
other words, allow a bit of encroachment from other branches so that ultimately, the
boundaries between each of them will be more secure.
The near obsession with the separation of powers doctrine during this
Founding period produced a sharpened sense of uncertainty about the potentially
rigid system of tripartite government as the “first constitutional generation”
encountered specific tasks of governmental organization and governance. Indeed, as
Gerhard Casper (1997) points out, the doctrine itself mirrored the complexities of life
and its symbolism. It was “tentative, reflective, suggestive, contradictory, and
incomplete” (17). It did not provide a major premise for easy syllogisms concerning
the organization of government (Casper 1989).
While the Constitution does grant specific powers to each branch of
government and “provides throughout the document the means by which each of the
branches could resist the blandishments and incursions of the others,” it does not
contain any explicit dictate to preserve the boundaries of the powers it grants (Vile
1967, 145-152). Rather, the separation of powers doctrine is implied in the
organization and language of the first section of each of three articles which vests all
legislative powers herein granted to Congress (Article I, § 1), the executive power in
the President (Article II, § 1), and the judicial power in the courts (Article III, § 1).
The absence of a separation of powers clause is by no means accidental – James
Madison made it quite clear that such language was omitted to protect against

62
unhealthy isolation of the branches. In his view, separation of powers principles did
not “require that the legislative, executive and judiciary department should be wholly
unconnected with each other.” To the contrary,
…unless these departments be so far connected and blended as to give each
a constitutional control over the others, the degree of separation which the
maxim requires, as essential to a free government, can never in practice be
duly maintained (Federalist No. 48).

Nevertheless, and in part disregarding his own position on the doctrine,
Madison attempted to address some of the concerns of the individual states by
proposing a new article VII to precede the existing one (which was to be
renumbered). As Gwyn (1965) argues, it was ingenious in the manner in which it
formulated a separation of powers doctrine that took account of the constitutional
scheme of checks and balances:
The powers delegated by this constitution, are appropriated to the
departments to which they are respectively distributed: so that the
legislative department shall never exercise the powers vested in the
executive or judicial; nor the executive exercise the powers vested in the
legislative or judicial; nor the judicial exercise the powers vested in the
legislative or executive departments (Casper 1989).

Spurred on by Madison’s attempt, there were other such proposals. The
separation of powers provision of Roger Sherman’s draft bill of rights, also dating
from the summer of 1789, captured even more clearly the point made by Madison’s
proposed article VII:
The legislative, executive and judiciary powers vested by the Constitution in
the respective branches of the Government of the United States shall be
exercised according to the distribution therein made, so that neither of said
branches shall assume or exercise any of the powers peculiar to either of the
other branches (Casper 1989).

63

The House adopted Madison’s amendment (with a minor change) despite
objections that it was unnecessary and “subversive of the Constitution…” (Casper
1997). The Senate rejected the amendment for reasons not clearly stated. One can
only surmise that the Senate was not eager to adopt separation of powers as an
independent doctrine or even as a mere principle of the construction government for
they were already anticipating the many “mixings” of powers that would be required
to effectively govern the new United States of America.
31
The end of the ratification
debates drew to a close, for the most part, a national preoccupation with separation
of powers until the New Deal. It is accepted that while flashpoints did occur during
the late eighteenth and nineteenth century
32
, there would not again be a
comprehensive debate on the American system of tripartite governance for almost
150 years. This does not mean however, that the intervening years did not produce
the template for American Separation of Powers.

I. The Early Republic: Congress Centered Government
A. Washington and the Establishment of Governmental Powers
The Washington administration faced the enormous problem of governing
without precedent. The realm of separation of powers posed even more confounding

31
Casper (1997) has gone so far to theorize that the Senate rejected Madison’s proposal because even
at its earliest stages, the institution was aware of how it, itself benefited from more flexible power
sharing arrangements.
32
The list begins with Marbury v. Madison and continues through the Louisiana Purchase and the
Civil War Crisis to name a few.

64
problems because the Constitution spoke little about the topic. Whether the subject
was communication between branches of government, the establishment of various
government departments and accompanying cabinet positions, or newly emerging
foreign policy concerns, the President and Congress followed a course determined by
a constantly evolving understanding of the appropriate conduct of government
(Corwin 1984; Fisher 1997).
Official communications between the President and Congress presented
practical problems that also had symbolic impact upon system of separation of
powers. Washington was extremely aware of the precedent setting nature of each of
his actions. He wrote to Madison, “As the first of every thing, in our situation will
serve to establish a Precedent, it is devoutly wished on my part, that these precedents
may be fixed on true principles” (Hobson and Rutland 1979, 132).
Washington was uneasy with assignations of executive power and careful to
refuse “mantles of power” for himself. While he was careful to stay silent on his
policy preferences concerning matters under discussion in Congress, he was quite
content to have his cabinet heads lead the debates. As we shall see, the most vocal of
these, Alexander Hamilton would come to exemplify this ministerial type of
government.
In the spring of 1789, the separation of powers came to the forefront of the
fledgling Washington administration. The establishment of governmental
departments led to unforeseen questions regarding appointment and removal of the

65
key officers within those departments (Binkley 1962; FitzGerald 1986). No clear cut
precedents were available to the members of the House of Representatives as they
faced the task of interpreting the provisions of the Constitution with respect to the
tenure of executive officers. On May 19, 1789, James Madison moved that Congress
establish the departments of Foreign Affairs, Treasury, and War. The departments
were to be “appointed by the president, by and with the advice and consent of the
Senate; and to be removable by the President.” The debate quickly focused attention
on the location of the removal power.
33

Louis Fisher (1997) has characterized the debate as wide-ranging and the
issues as complex. There are several major positions that can be identified on the
question of the location of the removal power:
1. Removal was possible only be means of impeachment
2. The removal power belonged to the President because the
Constitution did not provide otherwise and the Senate was expressly
associated with it.
3. The removal power belonged to the President because it was an
inherently executive power.
4. The removal power belonged to the President because the President,
under the Constitution, was answerable for the conduct of his
officers.

33
While our concentration here is the separation of powers, it is also important to point out that the
Decision of 1789 signaled the beginning of another important question – who has the authority to
interpret the constitution? As Stephen Griffin points out, there is a close relationship between the
idea of American constitutionalism (restraint and empowering the state through the Constitution)
and the Federalist conception of politics (restraining and empowering the individual by law).
Surely, with President Washington at the helm, the Federalist could iron out disagreements over
interpretation. That was not to be the case. There was disagreement over what the constitution
meant almost from the beginning of the national government and there was no apparent way to
resolve the disputes that would preserve an interpretive consensus (1996). During the debates of
1789, several members of Congress, most notably William Smith argued that the Judiciary should
decide the location of the removal power, not Congress. Many others joined in this call, thus
setting the ground work for future judicial activism as in Marbury (1803).

66
5. The removal power was shared by the President and Senate because
of its similarity to the appointment power, which was also shared.
6. Congress could delegate the removal power to the President because
of its power over offices and the terms of office.
7. Congress had discretion in the matter on account of its power under
the necessary and proper clause.

The debate was full of references to separation of powers. The views of
Madison and Michael Stone of Maryland exemplify the two extremes. Madison,
always the champion of separated powers, wrote on May 19, 1789,
Perhaps there was no argument urged with more success, or more plausibly
grounded, against the constitution, under which we are now deliberating,
than that founded on the mingling of the executive and legislative branches
of the government in one body. It has been objected, that the senate have
too much of executive power even, by having a controul over the president
in the appointment to office. Now shall we extend this connection between
the legislative and executive departments, which will strengthen the
objection, and diminish the responsibility we have in the head of the
executive? I cannot but believe, if gentlemen weigh well these
considerations, they will think it safe and expedient to adopt the clause
(Fisher 1997).

Stone, who advocated a more practical rather than ideological reading of the
Constitution, countered with the following,
A separation of the powers of Government, between the Legislative,
Executive, and Judicial branches, is considered as the proper ground for our
opinion, and a principle which we must admit. Are we to get it brought into
the Constitution? For I apprehend there is no such principle as a separation
of these powers brought into the Constitution at present, but to the degree
which an examination will appear to exist. Is there any express declaration,
that it is a principle of the Constitution to keep the Legislative and Executive
powers distinct? No. Has the Constitution in practice kept them separate?
No. Whence is this idea drawn? That it is a principle in this Constitution,
that the powers of Government should be kept separate? No sure ground is
afforded for it in the Constitution itself. It is found in the celebrated writers
on government; and, in general, I conceive the principle to be a good one.
But if no such principle is declared in the Constitution, and that instrument
has adopted exceptions, I think we ought to follow those exceptions, step by
step, in very case to which they bear relation. (1 Annals of Congress 564-
565 as cited in Gwyn 1965).

67

After two months of debates, Congress finally recognized the President’s
freedom to remove department heads. But this fact did not mean that the President
could remove all administrative officials. Madison pointed to the office of
Comptroller of the Treasury and pointed out that nature of that office was not purely
of an executive nature.
The location of removal power having been decided, it was left to be seen
how these new executive departments and their officials would act. It was clear from
the inception of the agencies that Congress viewed them as tools or aids of the
legislature. Many of the head (i.e. Secretary of the Treasury) were required to
directly report to Congress. What Congress had not foreseen was the effect that the
imperious nature of one Alexander Hamilton would have on the balance of power.
Hamilton saw himself in a traditional ministerial role rather than as a mere cabinet
member. To that end, he actually drafted legislation and made his opinions and
wishes strongly known in the Congress. He acted as a conduit to the president and
even coordinated the activities of other departments. Binkley (1962) and others have
likened him to America’s only prime minister. Because Washington himself was
loathed to appear too imperial, the path was open for Hamilton to exercise power on
his behalf.
The antithesis to Hamilton was the Secretary of State, Thomas Jefferson.
Jefferson, felt that as a member of the cabinet, he was a purely executive officer and
should therefore stay clear of legislative matters unless directly called upon by

68
Congress. His extreme deference towards the legislative branch would manifest
itself even more resoundly during his own presidency.
The perhaps best known controversy concerning the conduct of foreign
relations during the Washington administration is the battle over President
Washington’s Neutrality Proclamation of 1793 in the war between revolutionary
France and great Britain. Since the power to declare war is a congressional power,
could the President commit the nation to peace (Currie 1997)? When it came to
questions concerning enforcement of neutrality, the debate included even the judicial
branch, since administration had decided to turn to the Supreme Court for advice on
the legal implications of neutrality. The Court refused to hear the issue on separation
of powers grounds (Ball 1980; Geyh 1996).
When Washington issued his proclamation, he proved a furious outburst
concerning his constitutional powers. Not only were his political opponents, the
Republicans, generally pro-French in sympathy but they had come to be the chief
advocates of legislative “sovereignty” (a mantle later taken up by President
Jefferson). The proclamation, it was argued was a clear violation of separation of
powers. The great debate that followed was made famous by the discourse between
the pro-executive Hamilton (writing as Pacificus) and the strict proponent of
separation of powers, Madison (writing as Helvidius). In 1794, Washington sent
Chief Justice Jay to negotiate a treaty between the United States and England. The
Senate, still incensed over the Proclamation broke into party caucuses for the first

69
time. Although the crisis passed in time, the heat generated by the controversy
served as a lesson for future unilateral foreign policy decisions (Binkley 1962).
The shaping of congressional executive relations began in 1789 and, of
course, have continued ever since. Precedents were set by both institutions in
response to complex problems as they occurred, and were influenced by both
constitutional and political considerations (Foley 1996). The process was helped
initially by the relative absence of partisanship. It was also helped by the essential
character of George Washington, who more than any president since, worried about
what was right for the government as a whole, without overly concentrating on the
powers of the presidency (Skowronek 1993; Thurber 1991). The main goal was a
“more effectual mode of administering” rather than mapping out zones of power
(Sinclair 1997). The results would have been very different had not Washington’s
unique personality been at play.

B. The Case Law
While the executive/congressional dramas were being played out in the early
republic, the judiciary handed down two important decisions in the area of separation
of powers. One is perhaps the most important and most well-known of all Supreme
Court decisions. The other, while little known, clearly set the tone for the
functionalist nature of American separation of powers for the next 200 years.

70
The separation of powers case law in the formative era of the republic was
concerned with defining the powers of the branches as stated by the constitution and
as intended by the framers. The concept of three co-equal branches of government
was not clearly established until the landmark decision of Marbury v. Madison, 5
U.S. 137 (1803). Marbury is best known for its assertion of judicial power to review
the constitutionality of federal statues, a question requiring the Court to determine
it’s own proper relationship to Congress. The central issue of the case however, is
the removal power of the executive. The lesser-known parts of the opinions,
consider the Court’s proper relationship to the executive.
Eighteenth century courts were viewed as arm of the administration, and
engaged in political as well as strictly legal activities. In Marbury, Chief Justice
Marshall
34
rejected the political role, yet claimed a vital legal role.
In a sense the Court under Marshall had accepted a sharply diminished role
in politics, but in so limiting its activities it had secured a better control of
law, the jurisdiction to which it had undoubted entitlement. Removing itself
from partisan politics, it entrenched itself as the constitutional guardian of
individual rights against the excesses and vagaries of popular government in
a disturbingly new egalitarian age. In beating a strategic retreat before the
armies of Jeffersonian legislators, the judges arrived at a delineation of
judicial power such that even their detractors were forced to concede the
validity of their pretensions, and Republican judges found incumbent
Federalist judges to be of one mind with them. Upon this consensus was
built the foundations of the Supreme Court, as we know it today. (Haskins
1981, 406)

The Supremacy Clause of Article VI makes the Constitution, and all federal
laws and treaties that are made pursuant to that document, the supreme law of the

34
Writing for Marshall 1 with member justices Marshall, Cushing, Paterson, S. Chase, Washington
and Moore.

71
land, binding all state courts, and overriding any contrary provisions in their
constitutions and statutes. But this applies only to federal laws appropriate to the
central government under the Constitution’s provisions. The attention of the
Philadelphia Convention in providing for a Supreme Court had been upon the
necessity for judicial review in order to enforce the Supremacy Clause in this
context. So, there was room for argument on the question, which later developed, of
whether the Supreme Court should be the arbiter of the Constitution when no
controversy was present respecting federal versus state supremacy. Could the
Supreme Court of the United States declare unconstitutional any statute enacted by
Congress and signed by the President, or was the Court merely a coequal branch
bound by a statute that had, in form at least, followed the process required by the
Constitution?
Marshall’s opinion asserted that since Article III, § 1 provides that “the
judicial power of the United states shall be vested in one Supreme Court, and in such
inferior courts as the Congress may from time to time ordain and establish,” the
Supreme Court had the power to review congressional statutes and declare them
unconstitutional. Marshall’s view was that if an act of Congress must be interpreted,
the judiciary is the proper organ so to do and to declare the constitutionality or
unconstitutionality of the act or conduct involved (Forkosh 1963, 117). Chief Justice
Marshall stated,
The subject is the execution of those great powers on which the welfare of a
nation essentially depends… This provision is made in a Constitution

72
intended to endure for ages to come and, consequently, to be adapted to the
various crises of human affairs.
35

While establishing the base of power for the Supreme Court, Marbury also
dealt with a more common separation of powers issue: the removal power. The
Court held that the president had discretion over an office until an appointment is
made. Thereafter,
…his power over the office is terminated in all cases, where by law the
officer is not removable by him. The right to the office is then in the person
appointed, and he has to absolute, unconditional power of accepting or
rejecting it (Marbury, 162).

Marshall also noted that Congress had given Marbury’s office tenure of five
years and Marbury had a legal right to serve for that duration. This argument
suggested that Congress can circumscribe the president’s removal power by statute
(Fisher 1978, 60-61).
In the same year the court decided Marbury, it also handed another important
separation of powers decision, Little v. Barreme, 6 U.S. 169 (1803).
36
In Little, sea
captains were instructed by President John Adams to commandeer and take to
American ports for condemnation, all American vessels or those suspected to be
American, even if they were authorized by foreign papers, when these ships were
bound to or from French ports. An American commander captured a Danish ship,
which had aroused his suspicions and which was sailing from a French port.

35
Similarly, Chief Justice Stone in the 20
th
century wrote, “We read [the Constitution’s] words, not as
we read legislative codes which are subject to continuous revision with the changing course of
events, but as the revelation of the great purposes which were intended to be achieved by the
Constitution as a continuing instrument of government” (Corwin 1958, xv).
36
Decided by Marshall 1.

73
However, the federal statute on which the President’s order was based, relied upon
by the vessel’s owners, authorized stopping vessels owned by Americans when there
was reason to suspect that they were engaged in traffic with France (with which
nation a congressional act had suspended commercial intercourse) and were bound
for France.
According to Little v. Barreme, powers that the Constitution assigns to one of
the three branches of government may be exercised only by that branch. A power
that falls somewhere between powers assigned to two different branches (an
overlapping power) may be exercised by either of the two branches. However, as the
paramount branch because of its unique position of closeness to the people as a
whole, Congress, alone among the three branches of government, can assign powers
where doubt exists concerning which branch under the constitutional separation of
powers provisions should have jurisdiction over the power. The Court concluded, in
holding invalid an action of the President that conflicted with a subsequent act of
Congress, that when the three branches of government have overlapping powers (that
is, two or more branches each have some reason to make a constitutional claim to the
power), the legislature can permit exercise of the same power by each branch or can
assign it to one (including itself) to the exclusion of the other (FitzGerald 47).
Chief Justice Marshall expressed the opinion of the court that the President might
have had the authority, in the absence of a statute, to stop the vessel in his capacity as
the commander-in chief who was executing the laws of the land as appropriate to
conditions at that time. But he was deprived of any such authority because the

74
statute specifically limited his control craft that were voyaging to French ports. The
Chief Justice said that the policy of this law obviously would be carried out with less
evasions under the President’s constructions; however,
…the legislature seems to have prescribed that the manner in which this law
shall be carried into execution, was to exclude a seizure of any vessel not
bound to a French port…
The further context of the statue supported this conclusion. The court would
have been willing to infer the President’s power from his constitutional power to act
as commander-in-chief, but it was not clear how far his authority in that capacity
extended. The national legislature itself had some overlapping powers; for example,
the power to declare war, the power to appropriate funds with which to conduct a
war, and other express rights. This created an overlapping power situation that
Congress could settle. The first branch as the representative of the people can assign
powers not expressly given to one of the other two branches as it sees fit. Under our
constitutional system only the lawmaking body has this residual authority.
The decision in Little is striking for several reasons. First, it illustrates that
the Court was forced to wrestle with delicate distinctions within the separation of
powers structure from the very beginning of the republic – and not just broad power
defining strokes that we often associate with cases like Marbury. Second, Little
represents the beginning of the judicial sanctioning of functionalism during the
earliest years of the republic.

75
II. IV. The Revolution of 1800
C. Thomas Jefferson and the Separation of Powers
Thomas Jefferson asserted that he believed strongly in the separation of
powers
37
and that each branch is independent,
38
that all powers in one branch
produces despotism
39
and that unlimited powers are always dangerous.
40
His stated
position on these matters however, would not always bring to bear on his actual use
of the executive power.
Jefferson had strongly considered returning to private life at the turn of the
century. He had been an active force in the new republic for many decades and
looked forward to pursuing other interests. However, the thought of finally
controlling the reigns on this experiment in government which he had helped start
was far too overwhelming. That, combined with his genuine fears that the United

37
"The first principle of a good government is certainly a distribution of its powers into executive,
judiciary, and legislative, and a subdivision of the latter into two or three branches." --Thomas
Jefferson to John Adams, 1787. ME 6:321
38
"The leading principle of our Constitution is the independence of the Legislature, Executive and
Judiciary of each other." Thomas Jefferson to George Hay, 1807. FE 9:59 "Legislative, Executive
and Judiciary offices shall be kept forever separate, and no person exercising the one shall be
capable of appointment to the others, or to either of them." --Thomas Jefferson: Draft Virginia
Constitution, 1776. Papers 1:347
39
"[A very capital defect in a constitution is when] all the powers of government, legislative,
executive and judiciary result to the legislative body. The concentrating these in the same hands is
precisely the definition of despotic government. It will be no alleviation that these powers will be
exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots
would surely be as oppressive as one." --Thomas Jefferson: Notes on Virginia Q.XIII, 1782. ME
2:162
40
“Mankind soon learn to make interested uses of every right and power which they possess or may
assume. The public money and public liberty, intended to have been deposited with three branches
of magistracy but found inadvertently to be in the hands of one only, will soon be discovered to be
sources of wealth and dominion to those who hold them; distinguished, too, by this tempting
circumstance: that they are the instrument as well as the object of acquisition. With money we will
get men, said Caesar, and with men we will get money." (Jefferson 1782, Notes on Virginia Q.XIII)

76
States would sink into a monarchical type system under the likes of Alexander
Hamilton convinced him to reach for the highest mantle of power in American
government. When Jefferson took office as President in 1801, the initial formative
stage of American government had ended and second phase began. Casper (1997)
characterizes this second phase as a “testing phase.” It was at this time that one
would see how much continuity and consistency there would be between prior
practices and those of the new administration.
Clearly, Jefferson favored legislative over executive power. Indeed the
exaggerated “revolution of 1800” refers to Jefferson’s belief that he saved the
country from monarchy and militarism, and brought it back to republican simplicity
(Skowronek 1993; Binkley 1962; Young 1966). In the very fist paragraph of his
First Inaugural Address, Jefferson address the members of Congress specifically,
To you, then, gentlemen, who are charged with the sovereign functions of
legislation… I look with encouragement for that guidance and support
which may enable us to steer with safety the vessel in which we are all
embarked amidst the conflicting elements of a troubled world (Hunt 1996).

Just five years later, during Jefferson’s second term, John Randolph, who had
started out as the administration’s leader in the House of Representatives spoke
openly and angrily about Jefferson’s change of attitude. He aimed most of his ire at
Jefferson and his Secretary of State, James Madison, to whom Randolph referred
collectively as the “Executive” who “will Lord it over you” (Sinclair 1997). In short,
Randolph accused Jefferson of violating separation of powers principles, just as
Jefferson had accused Hamilton (Young 1966; Binkley 1962).

77
Any notions of ceremonial decorum in the new United States of America fell
victim to Jefferson’s desire to change the manner in which President and Congress
interacted. From the start, the new President wished to be addressed merely as “Mr.”
Jefferson. This Mr. Jefferson viewed the physical interaction between Congress and
the executive branch as significant in separation of powers terms. He quickly refuted
all the ceremonial trappings of a monarchy in favor of republican simplicity
(Schlesinger 1973; Young 1966). Alexander Hamilton was quick to ridicule these
symbolic efforts as the sign of leader not able to bear the weight of leadership
(Binkley 1962).
Beyond getting ride of the elaborate horse drawn carriages that transported
the President throughout the new capitol city, Jefferson also made more fundamental
changes in congressional-executive relations. Washington and Adams had addressed
the Congress annually in person. In return, its members had waited as a whole on
the President with a formal response to his address. Jefferson decided not to follow
these precedents. Instead, he sent annual messages in writing to which no answer
was due.
41
Jefferson’s successors would observe this practice for more than century,
until Woodrow Wilson.

41
Jefferson explained the practice in a letter to Aaron Burr, the president of the Senate, “SIR: The
circumstances under which we find ourselves placed rendering inconvenient the mode heretofore
practiced of making by personal address the first communication between the legislative and
executive branches, I have adopted that by message, as used on all subsequent occasions through
the session. In doing this, I have had principal regard to the convenience of the legislature, to the
economy of their time, to their relief from the embarrassment of immediate answers on subjects not
yet fully before them, and to the benefits thence resulting to the public affairs “(Hunt 1996).

78
Jefferson’s reform was certainly in accord with his own sense of republican
simplicity, but, by forgoing the theatrical aspects of presidential addresses, Jefferson
also avoided the personal embarrassment of having to perform before an audience in
spite of the stage fright that ordinarily seized him (Binkley 1962).
Jefferson’s first annual message to Congress raised two issues directly
pertaining to executive-congressional relations: the war power and the spending
power. Both of these issues were centered on interpretations of separation of powers
theory and would allow historians to gauge Jefferson’s commitment to the principle.
When it came to the war power, Jefferson was to find that he had trapped the
presidency in a very tight corner. The Barbary Powers occupied American foreign
policy more or less continuously for about thirty years beginning in 1784. In dealing
with piracy in the Mediterranean, the United States followed the example of most
European powers: it paid ransom and “tribute” to the Ottoman territories of
Northern Africa, specifically, Algiers, Tunis and Tripoli. By the end of the century,
Tripoli became dissatisfied with the size of its tribute and declared war on the United
States. News of this action reached Jefferson in May of 1801, at time when
Congress was not in session. Without the consent of Congress, Jefferson was not
willing to do more than defend American positions in the area. When a pirate ship
attempted to take over an American Navy vessel, the sailors were permitted only to
defend themselves, disarm the enemy vessel and then release the vessel and her
crew. Jefferson explained his underwhelming actions by stating,

79
Unauthorized by the constitution, without sanction of Congress, to go out
beyond the line of defense, the vessel being disabled from committing
further hostilities, was liberated with its crew. The legislature will doubtless
consider whether, by authorizing measures of offence, also, they place out
force on an equal footing with that of its adversaries. I communicate all
material information on this subject, that in the exercise of the important
function considered by the constitution to the legislature exclusively, their
judgment may form itself on a knowledge and consideration of circumstance
of weight (Young 1966).

This extremely narrow construction of the war powers was widely criticized,
even by members of Congress (Binkley 1962; Sinclair 1997). Jefferson was viewed
as overly statesmanlike to the point of putting the entire American presence in the
Mediterranean at risk. By the time of his second annual message, Jefferson was
convinced by many in his cabinet, most notably Albert Gallatin to delete language
that implied that the executive would continue to need legislative authority to act
offensively if other Barbary Powers declared war and attacked American positions.
Jefferson began to see practical problems with his ideological defense of separation
of powers principles. Others, such as his old nemesis Alexander Hamilton, saw it as
nothing less than the slow dismantling of major executive powers (Skowronek
1993).
The subject of congressional control over resource appropriations was the
other major separation of powers issue addressed during Jefferson’s administration.
Jefferson position on this matter was truly extraordinary coming from the head of the
executive branch. He recommended that the power of the executive branch to
exercise discretion in the spending of money be curtailed and that the legislature

80
make definite decisions about resource allocation by increasing appropriations
specificity.
While this proposal may have been full of republican virtue, it was practically
impossible. The Congress was not accustomed to such extreme power and fell into
divisive and endless debates about the smallest expenditures. It was not until the end
of the Jefferson administration that the congress and the executive came to terms
with a practical split of authority on appropriations. Congress would outline major
outlays of expenditures in addition to any other expenditure which it deemed it
crucial to control. The minutiae would be left to the executive (Foley 1996; Binkley
1962).
The Louisiana Purchase of 1803 is a good example of early constitutional
change. For the most part, attention has been focused on the constitutional power to
acquire territory and on Jefferson’s change of mind as to the need for a constitutional
amendment. Jefferson thought at first it was clear that an amendment was required
because the Constitution said nothing about the power of the United States to acquire
new territory. He stated that asking for an amendment was preferable to assuming
the existence of the power through an interpretation of the Constitution. Of course,
this was not to be the case, and Jefferson would take the strongest executive action of
his political life in purchasing the territory of Louisiana. Indeed, Jefferson’s
reputation as President has been closely tied to the fact that he overcame his
constitutional scruples when he followed the lead of his Secretary of State, Madison,

81
who had no qualms about expansion of the United States and the means of achieving
it.
Had Jefferson finally assumed the full mantle of executive power? Yes, but
with a caveat. While he only received Congressional approval of the Louisiana
Purchase only after the deal was complete, Jefferson saw it as a necessary action.
The fortuitous nature of the territory’s availability at such bargain basement prices (if
you will) combined with his firm belief in the benefits of expansion allowed him to
take such actions. There can be little question that on the whole, Jefferson strove to
abide by the letter and spirit of the constitution.
Jefferson never passed an opportunity to exaggerate the differences between
“the monarchist” Hamilton and himself. While he stayed faithful to principles of
separation of powers, he was also the most forceful chief executive yet. Still, he
worried more than Hamilton about his accountability to the people whose agent he
was. To Jefferson, being President felt like being “in a scrape.” He was even more
dramatic when he wrote in a letter to P.S. DuPont de Nemours,
Never did a prisoner, released from his chains, feel such relief as I shall on
shaking off the shackles of power…I thank God for the opportunity of
retiring from [political passions] without censure, and carrying with me the
most consoling proofs of public approbation (Hunt 1997).

Washington and Jefferson present us with a unique opportunity to view the
flexibility of the American Constitution and to ponder if perhaps separation of
powers theory is more correctly classified as a political issue rather than a legal one.
While most of my research thus far has concentrated on the legal development of

82
separation of powers doctrine, a historical view has revealed that, especially in the
absence of judicial decision making, separation of powers doctrine can be used in
equally valid ways to produce very different forms of government.
There is of course always the cynical possibility that concerns over separation
of powers was simply an elaborate example of “hand wringing” to disguise attempts
to appropriate power in ways not envisioned by the Founders and not contained with
the Constitution. Was Jefferson a great believer in the sovereign power of
legislators, or did he simply operate in a backroom manner that most efficiently and
effectively accomplished his personal policy goals? Did Washington’s personal
restraint mask a true desire to exercise strong policy control through his “prime
minister” Alexander Hamilton? Perhaps. However, an equally plausible explanation
could be simply that separation of powers doctrine is not a purely legalistic theory
with specific dictates, but rather a set of principles which need to be practically
interpreted according to the needs of a nation.

D. The Case Law
The earliest and logically the most restrictive from of delegation permitted by
the federal courts was the power to declare the facts on which the operation or
suspension of congressional policy was contingent. The delegation of fact finding
power would become essential to a functionalist view of separation of powers. The
two most important cases in this area are Brig Aurora and Field (Barber 1975, 53 –

83
57). In an effort to remain neutral during the Napoleonic Wars, the Congress passed
the Non-Intercourse Act of March 1809, an act aimed at stopping trade with England
and France and in retaliation for their seizures and other harassments of American
shipping. The Act was revived in 1810 through a presidential proclamation
stipulated within the Act by Congress. The Cargo of the Brig Aurora v. United
States, 11 U.S. 382 (1813) was an appeal from the sentence of a district court
condemning the cargo of the brig Aurora for having been imported from Great
Britain in violation of the Act.
Was the presidential proclamation issued under an unconstitutional
delegation of congressional power, because the revival of the law was dependent on
the proclamation? In an opinion by Justice William Johnson, the Court
42
held with
the government. The most relevant consideration for the Court was not the quality of
the president’s judgment, but the legislative judgment which made the president’s
proclamation a mere contingency for the actualization of the legislative decision.
Congress could exercise its discretion conditionally or expressly, “as their judgment
should direct,” namely, “upon the occurrence of any subsequent combination of
events.”
The Court ignored questions concerning the nature of the power being
exercised by the president and shifted instead to a focus on congressional intent.
From the perspective of Congress at the time of enactment, the presidential

42
Marshall 6: Marshall, Washington, W. Johnson, Livingston Todd, Duvall, Story

84
proclamation was to be based on a mere factual contingency – irrespective of
whatever legislative qualities the president’s judgment might have exhibited later to
the president himself, to such third parties as the Court and the appellant and even to
a later Congress. This Case is widely cited as the basis for the constitutionality of a
type of delegation known as “contingent legislation.”
43
In other words, Congress
may legislate contingently, leaving to others the task of ascertaining the facts that
bring its declared policy into operation. “Here,” as Pritchett explains, “the
delegation is not of power to make rules or fill in details; it is delegation of authority
to determine facts or make predictions which are to have the effect of suspending
legislation, or alternatively, bringing it into effect” (Pritchett 1968, 200).
In Wayman v. Southard, 10 Wheat. 1 (1825), the Court
44
recognized that the
nature of government requires Congress to pass general legislation and leave to other
branches the responsibility for, as the court put it, “filling in the details.” (Wayman at
46). At issue here was the delegation by the Congress to the federal Courts the
power to establish rules of practice.
45
The opinion, written by Chief Justice Marshall

43
Contingent or conditional legislation has had a long tradition in America. An early legal test
involved a nonintercourse act against Britain (Fisher 27). After the legislation lapsed in 1810,
Congress left it to the president to renew the trade restriction at his discretion. When President
Madison revived the Act, a merchant complained in court that the President’s proclamation had the
force of and was thus legislative in nature, violating the separation doctrine. The Supreme Court
rejected this contention in Brig Aurora, affirming that Congress could legislate conditionally and
leave to others the task of ascertaining the facts that bring its declared policy into operation.
44
Marshall 7: Marshall, Washington, W. Johnson, Todd, Duvall, Story, Thompson
45
The power to establish rules of civil procedure was granted by Congress to the Courts in
28 U.S.C. Sec. 2072 (1934); the power to establish rules of criminal procedure was
delegated in 18 U.S.C. Sec. 3771 (1940). In both instances Congress provided for
submission of the rules to it with the power presumably to change or to veto the rules.

85
foretold the structure of a functioning government. This general delegation of
legislative power was seen as essential, even from the earliest days of the republic
for the smooth functioning of government. The young republic was quickly
becoming a large unmanageable – and more significantly ungovernable mass with
this type of delegation.
It will not be contended, that congress can delegate to the courts, or to any
other tribunals, powers which are strictly and exclusively legislative. But
congress may certainly delegate to others, powers which the legislature may
rightfully exercise itself (Wayman).

III. The Civil War: Testing the Boundaries of Powers
A. The Case Law
In 1865, Congress passed a law that effectively debarred former members of
the Confederate government by requiring a loyalty oath be recited by any Federal
court officer affirming that the officer had never served in the Confederate
government. Augustus Hill Garland, an attorney and former Confederate Senator
from Arkansas, had previously received a pardon from President Andrew Johnson.
Garland argued the Act constituted a bill of attainder and an ex post facto law which
unfairly punished him for the crime he had been pardoned for and was therefore
unconstitutional. In Ex Parte Garland, 71 U.S. 333 (1866), the Supreme Court ruled
in a 5 – 4 decision that the law was indeed a bill of attainder and an ex post facto law.
The court ruled that Garland was beyond the reach of punishment of any kind due to

Despite these delegations, Congress has occasionally legislates rules itself. E.g. 18 U.S.C.
§§ 3501 –02 (1968) (admissibility of confessions in federal courts).

86
his prior presidential pardon. The court also stated that counselors are officers of the
court and not officers of the United States, and that their removal was an exercise of
judicial power and not legislative power. The law was struck down, opening the way
for former Confederate government officials to return to positions within the federal
judiciary.
During the Civil War Reconstruction, William McCardle, a newspaper
publisher and not a member of the military, published some "incendiary" articles. He
was jailed by a military commander under a law passed by the United States
Congress. McCardle invoked habeas corpus in the Circuit Court of the Southern
District of Mississippi. The judge sent him back into custody, finding the military
actions legal under Congress's law. He appealed to the Supreme Court under a
congressional act of 1867 that allowed federal judges to issue writs of habeas corpus
and hear appeals from circuit courts. After the case was argued but before an opinion
was delivered, Congress repealed the statute.
Two issues were raised by this case: did the Supreme Court have jurisdiction
to hear the case, and if so, did McCardle's imprisonment violate his rights under the
Fifth Amendment. The Court, speaking through Chase, validated congressional
withdrawal of the Court's jurisdiction. The basis for this repeal was the exceptions
clause of Article III Section 2. But Chase pointedly reminded his readers that the
1868 statute repealing jurisdiction "does not affect the jurisdiction which was
previously exercised." Because the Court held it lacked jurisdiction to hear the case,

87
the second question was not answered. Because Congress withdrew jurisdiction to
hear the case, McCardle had no legal recourse to challenge his imprisonment in
federal court.
46

United States v. Klein, 80 U.S. 128 (1871), was one of the most important
separation of powers cases stemming from the Civil War. On December 8, 1863,
President Lincoln issued a proclamation offering a pardon to any person who had
supported or fought for the South, with full restoration of property rights, subject
only to taking an oath of allegiance. Congress had passed an act in 1863 that
permitted an owner of property confiscated during the war to receive the proceeds
from the sale of the confiscated property.
Based on the statute and the President's proclamation, V.F. Wilson took the
oath of allegiance and honored it until his death on July 22, 1865. Mr. Klein,
administrator of Mr. Wilson's estate, then applied, properly, to the Court of Claims to
recover the proceeds of the sale of property seized from Mr. Wilson.
Congress repealed the statute in 1867. The Court of Claims, in 1869, decided
that Mr. Wilson's estate was entitled to the proceeds from the sale of his property.
Then, in 1870, Congress passed a law that prohibited the use of a Presidential pardon
as the basis for claiming sale proceeds, and further said that acceptance of such a

46
Durousseau v. United States, 10 U.S. 307 (1810) held that Congress's affirmative description of
certain judicial powers implied a negation of all other powers. Creating such legislation was
legitimate under the authority granted them by the United States Constitution. By repealing the act
which granted the Supreme Court authority to hear the case, Congress made a clear statement that
they were using this Constitutional authority to remove the Supreme Court's jurisdiction. The court
has no choice but to dismiss the case.

88
pardon was evidence that the person pardoned did provide support to the South and
was ineligible to recover sale proceeds. The United States appealed to the Supreme
Court, based on the 1870 statute, arguing that since Mr. Wilson had accepted a
Presidential pardon and therefore his estate was not entitled to the sale proceeds.
In 1871, the Supreme Court ruled that the 1870 statute was unconstitutional
and that Congress had exceeded its power by invading the province of the judicial
branch by prescribing the rule of decision in a particular cause. The Court also ruled
that Congress had impermissibly infringed the power of the executive branch by
limiting the effect of a Presidential pardon. Very simply, Klein states that one
branch may not impair the powers of another.
47
Congress may not direct the
outcome of a case by prescribing the rule of decision, nor may Congress impair the
power and effect of a Presidential pardon.
48
When Congress passed a law that had
the effect of prescribing the rule of decision in a particular cause, Congress
"inadvertently passed the limit which separates the legislative from the judicial
power." (Klein at 147). The Court stated,
It is the intention of the Constitution that each of the great co-ordinate
departments of the government -- the Legislative, the Executive, and the
Judicial -- shall be, in its sphere, independent of the others (Klein at 147),

47
Expecially when the infringed upon branch is the judiciary as this study will demonstrate.
48
Read more broadly, Klein suggests, but does not state, that Congress may not use the Exceptions
Clause to cripple the Court's ability to be the final arbiter of what the Constitution means.

89
IV. Delegation Begins
In Ex parte Seibold, 100 U.S. 371 (1880), the Court
49
held that Congress has
power to vest in judiciary appointment of supervisors of elections. This was just the
first several key delegation cases. In Field v. Clark, 143 U.S. 649 (1892), the Court
50
considered the delegation of fact finding power, sometimes referred to as the
discretion to find facts. The delegation question centered around the flexible-tariff
provision of the Tariff Act of 1890.
51
Writing for the Court, Justice Harlan upheld
the delegation in Section 3 of the Tariff Act of 1890, stating,
The Act … does not, in any real sense, invest the President with the power
of legislation… He had no discretion in the premises except in respect to the
duration of the suspension so ordered. But that related only to the
enforcement of the policy established by Congress. As the suspension was
absolutely required when the President ascertained the existence of a
particular fact, it cannot be said that in ascertaining that fact and in issuing
his proclamation, in obedience to the legislative will, he exercised the
function of making laws. Legislative power was exercised when Congress
declared that the suspension should take effect upon a named contingency
(Field at 693).

Field v. Clark held that if Congress establishes the statutory policies to be
followed it may delegate to the Executive the responsibility of making
determinations of fact involving exercise of discretion. The exercise of certain

49
Waite 2: Waite, Clifford, Swayne, Miller, Field, Strong, Bradley, Hunt, Harlan I
50
Fuller 3: Fuller, Field, Bradley, Harlan I, Gray, Blatchford, L. Lamar, Brewer, Brown
51
“That with a view to secure reciprocal trade with countries producing the following articles …
whenever and so often as the President shall be satisfied that the government of any country
producing and exporting sugars, molasses [and other named articles] imposes duties or other
exactions upon the agricultural or other products of the United States, which in view of the free
introduction of sugar, molasses [and other named articles] into the United States, he may deem to
be reciprocally unequal and unreasonable, he shall have the power and it shall be his duty to
suspend, by proclamation to that effect, the provisions of this Act relating to the free introduction of
such sugar, molasses [and other named articles] for such time as he shall deem” (Field, 680).

90
administrative discretion is necessary in executing a law, and this power may be
delegated constitutionally. Every directional detail need not be expressed in a
federal statute delegating authority to an administrator (FG 48). A federal statute
fixed the tariff on imports and exempted certain countries from the tariff charges. It
also provided that if the President found that exempt countries were charging duties
on exports by U.S. merchants, he should proclaim a suspension of the exemption,
thereby reinstating the rates established in the statue against these countries.
The statute was upheld since it expressed the legislative policy that tariffs
should be charged, set forth in what amounts and with what exemption, and
described the circumstances under which exemptions should be suspended. Whether
this policy would apply depended on whether contingencies specified in the statute
occurred, a fact that the President could be granted discretion to determine. The
further discretion involved in executive interpretation of the edicts of foreign
countries required only the objectivity of the expert, and found precedent in many
statues Congress had enacted without question for the past hundred years.
In Butterfield v. Stranahan, 192 U.S. 470 (1903), the Fuller Court considered
the delegation of Congressional Power. This is was one of the first articulations of
congressional delegation of power coupled with standards outlining its use. This is
the modern doctrine of delegation as we recognize it today. In Butterfield, a
delegation of power to the Secretary of Treasury under the Tea Inspection Act of
1897, to establish minimum quality standards for imported tea upon the

91
recommendation of a board of experts appointed by the secretary. The plaintiff
argued that the act was unconstitutional because it attempted to delegate to the
secretary “legislative powers, which can only be exercised by Congress.” The
government’s response presented the Court with two alternative justifications for the
delegation. The first was to invoke the doctrine of filling up details: it was not
legislative power that was delegated to the secretary; rather it was a necessary and
proper “delegation of details.” The second was to strike new doctrinal ground by
arguing that recent
“decisions of this court recognize that to rigidly enforce the doctrine that
Congress cannot delegate legislative power would often in effect be a
restriction upon legislative power, and they allow Congress very wide
latitude in this respect” (Butterfield at 489).

The Court, in an opinion by Justice White, ultimately allowed delegation of
legislative authority to executive who then established Board of Tea Inspectors to set
standards, inspect and grade all tea. Justice White ruled that Congress had “fixed
primary standard and policy for the tea board to follow.”
52

In Ex Parte Grossman, 267 U.S. 87 (1925), the Taft Court considered the
power of Presidential Pardon. Article II, Section 2 of the Constitution gives the
president the power to grant pardons “for offenses against the United States, except
in cases of impeachment.” The effect of a presidential pardon is that the person

52
The same logic would be used by the Court in United States v. Grimaud, 220 U.S. 506 (1911) to
uphold a delegation to executive official to make rules governing use of forest reserves and in ICC
v. Goodrich Transit, Co., 224 U.S. 194 (1912) to allow executive offices to prescribe methods of
accounting for carriers in interstate commerce.

92
pardoned is exempt from the punishment the law metes out for an act that violated
federal criminal or civil statutes. The pardon also restores all civil and political right
that had been lost as a result of conviction in federal court. In 1867, in the case of Ex
Parte Garland, the Supreme Court had stated that the result of a pardon was to
“release the punishment and blot out of existence the guilt, so that in the eye of the
law the offender is as innocent as if he had never committed the offence.” The
question in this case was whether the president had the power to reprieve or pardon
all offenses after their commission – and whether or not the pardon power extended
to criminal contempt. In a very textual opinion by Chief Justice Taft, the court
upheld the pardon.
In Myers v. United States, 272 U.S. 52 (1926), the Court
53
considered another
presidential power, that of removal. Myers involved the removal of a U.S.
Postmaster by President Woodrow Wilson. In 1917 and under the terms of an 1876
statute, Frank S. Myers had been appointed to the position in Portland, Oregon for a
term of four years. Under the statute, he could only be removed with the advice and
consent of the Senate. Wilson chose not to respect this portion of the Act of
Congress. Prior to the expiration of the term the postmaster general removed him, an
action concurred in by Wilson. This removal specifically violated the act of 1876,
which required the Senate’s advice and consent for the removal of all first-, second-,
and third-class postmasters. Myers brought suit in the Court of Claims to recover his

53
Taft 5: Taft, Homes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Sanford, Stone

93
salary arguing that he could not be dismissed unless the Senate was involved in the
process.
54
With a 6 – 3 vote
55
and in an opinion written by Chief Justice Taft, the
court found that the removal power is incidental to the uncontested power of
appointment. Taft states,
We…hold that the provision of the law of 1876 by which the unrestricted
power of removal of first-class postmasters is denied to the President is in
violation of the Constitution and invalid.

This broad interpretation of presidential power would not withstand scholarly
analysis and subsequent court holdings. Even for this Chief Justice, this opinion
represented a new high in presidential powers.
56
Indeed, Taft was asserting that the
president’s power of removal was unrestricted, even in the presence of statutory
limitations.
57

In McGrain v. Daugherty, 273 U.S. 135 (1927), the Court
58
considered the
investigatory powers of Congress – more specifically, could Congress act as a

54
Attorneys for Myers, in their presentation to the Supreme Court, argued that the appointment of
postmasters derived from a statute passed pursuant to a power granted Congress by the Constitution
(“to establish post offices and post road”). Congress could therefore attach to that office any
conditions it desired. Soliciter General Beck, arguing for the administration, maintained that the law
of 1876 could be held unconstitutional “without assuming the absolute power of the President to
remove any executive officer.” A statute may, in creating an office, “limit the duration of the term
thereof.” (Myers 61, 98).
55
Dissent: Holmes, Brandeis, McReynolds

56
Taft even parted company with his own reasonable decision in Wallace v. United States, 257 U.S.
541 (1922), where he held that …at least in absence of restrictive legislation, the President, though he
could not appoint without the consent of the Senate, could remove without such consent in the case of
any officer whose tenure was not fixed by the Constitution (Wallace, 544).
57
From the Congressional Debates of 1789, he decided that there were not the “slightest doubt” that
the power to remove officers appointed by the President and the Senate is “vested in the President
alone.” (Myers 114). However, as Louis Fisher point out, “This was a rash conclusion, for the record
in 1789 reveals deep divisions among members of the House and close votes on the Senate side.
Moreover, many of the legislators supported presidential power because the office in question was
secretary of foreign affairs, an agent of the president and executive in nature.” (Fisher 1978, 65).
58
Taft 5

94
judicial agent – issuing summons, punishing witnesses – even though it is done in the
performance of its delegated function to legislate? In this case a Senate committee
was investigating a scandal involving high officials in the administration of President
Warren Harding, including the possibility of misconduct on the part of the Attorney
General, Harry M. (Mally) Daugherty. The Committee investigating what was to
become known as the “Tea Pot Dome” naval oil scandal subpoenaed Daugherty.
When he refused to appear, a warrant was issued, ordering Mr. McGrain, the deputy
sergeant at arms of the Senate, to arrest Mally Daugherty and bring him to
Washington, D.C. Mally brought suit in Federal District Court, arguing that the
Senate had exceeded its powers. Writing for the Court, Justice Van Devanter stated,
“…the power of inquiry – with process to enforce it – is an essential and
appropriate auxiliary to the legislative function. …We conclude that the
investigation was ordered for a legitimate object; that the witness
wrongfully refused to appear and testify before the committee and was
attached…”

Moreover, the Court has recognized that, to fulfill its obligation to provide
accountability, Congress may grant itself additional powers through which it can
compel witnesses to appear, give testimony, and produce documents,
Where the legislative body does not itself possess the requisite information--
which not infrequently is true--recourse must be had to others who do
possess it. Experience has taught that mere requests for such information
often are unavailing, and also that information which is volunteered is not
always accurate or complete; so some means of compulsion are essential to
obtain what is needed ... Thus there is ample warrant for thinking, as we do,
that the constitutional provisions which commit the legislative function to
the two houses are intended to include this attribute to the end that the
function may be effectively exercised (McGrain v. Daugherty, 273 U.S.
135, 175 (1927)).

95
In J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928), the Court
dealt with delegation of Congress’ discretion to find facts, also referred to as the
provision of intelligible principles. The case involved the power of taxation, which,
being specifically given to Congress in the Constitution, is one of the primary
legislative power; yet the Court sustained the power delegated. The Court said that a
revenue measure was not unconstitutional because it also had the purpose of
protecting domestic production in a field of changing conditions in which the
inherent necessities of governmental coordination were clear. The extent and
character of the coordination of the three branches must be fixed according to
common sense. Analogy was made to the historic delegation of the power over
discriminatory prices to the Interstate Commerce Commission, and the Court noted
that administrative fixing of tariff rates under a clear policy and plan established by
Congress had recognized as appropriate in the earlier case, Field v. Clark. This case
caps what Pritchett has termed “a century of judicial rationalization of legislative
delegation,” following which “there was a widespread assumption that this area was
one of the dead letters of American constitutional law.” (Pritchett 1968, 200).
In a 9 – 0 ruling, Chief Justice Taft writing for court,
59
upheld the flexible-
tariff provision of the Tariff Act of 1922.
60
A delegation of broad powers to the

59
Taft 5
60
A 1922 statute delegated power to the President to raise or lower the tariff provided in the statute in
order to enable domestic producers to compete equally with foreign producers of similar articles in
U.S. markets. Maximum and minimum figures were provided in the statute, beyond which the
President was not authorized to change the statutory rate. He could act only after investigating and
comparing the costs of local and foreign production, and after considering differences in wages, costs

96
Executive will be sustained if the power is delegated in terms providing an
intelligible principle and direction for the official to follow.
“This is not to say,” said Chief Justice Taft, “that the three branches are not
co–ordinate parts of one government and that each in the field of its duties
may not invoke the action of the two other branches in so far as the action
invoked shall not be an assumption of the constitutional field of action of
another branch. In determining what it may do in seeking assistance from
another branch, the extent and character of that assistance must be fixed
according to common sense and the inherent necessities of the governmental
co–ordination (J.W. Hampton at 406).

Field v. Clark (1892) was carried a step further by J.W. Hampton. It serves
as a good modern starting point on all questions of delegation of legislative power.
The Supreme Court upheld the statute, concluding that since the law laid down an
“intelligible principle” that the executive must apply in changing the tariff rate,
61

there was no unconstitutional delegation of legislative power.

of material and other production costs at home and abroad, differences in wholesale prices,
advantages to foreign producers from their government, and any other advantages or disadvantages in
competition. The flexible tariff provisions were attacked in an action brought by an affected party
when the President increased the tax on imported barium dioxide from $0.04 per pound to $0.06 per
pound.
61
A statutory rate ceiling for increase or decrease was provided. Changes in the tariff were required
to be based upon statistical data, and though the work of obtaining and comparing costs of local and
foreign production would be considerable and the results perhaps only roughly accurate, it was
feasible to perform it in an equitable manner, presumable through research of field officers abroad.
The hearing procedures required by the statute would provide assurance that the administrative
determination was reasonable. Thus, the statue provided an objective standard to guide and limit the
administrative official in his exercise of statutory discretion.

97
V. The New Deal
A. Innovations in Separation of Powers
The New Deal era is in many ways, as integral to our understanding of
separation of powers doctrine as the Founding. It was during this time that two
important innovations of government were solidified. First, since World War I, the
rise of the presidency can be attributed to the emergence of the United States as a
world leader (Kurland 1986). While the first World War may have seem like an
aberration, World War II solidified the executive’s hold over foreign affairs and
derived great powers which flowed from this monopolistic control.
62
At the same
time, the Great Depression had spurred the creation of new independent
administrative agencies, which challenged notions of formalistic theories of
separation of powers. It was at this time that separation of powers began to emerge
as a doctrine that not only protected individual liberties, but also preserved
representative government. Some of the scholars discussed below will argue that
practice and experience, as much as Constitutional text and the writings of the
Founders, should guide our theory of separation of powers. For them, the New Deal
era serves as an important demarcation in the development of the doctrine.

62
Judge Learned Hand said in 1942: To this point, I have concentrated on the origins and
development of the constitutional concept of separation of powers. If the Founding Fathers had
been right, that concept should have limited the growth of each branch lest any of them become
dominant. If I turn to the question of the growth of each of the three divisions, I think I have to say
that the notion of separation has had little or nothing to do with it. Contrary to the expectations with
its ambit, the legislative branch has become the least of the three both as threat to and protector of
the people’s liberty. The executive branch has become imperial and imperious. And the judiciary
has developed from that “98 –lb. Weakling” into the muscular giant, just as the ads of Charles Atlas
said he could in the pulp magazines of yesteryear (Kurland 1986).

98
In 1935 Congress enacted the National Labor Relations Act, which gave
organized labor the legal right to bargain collectively, and the Social Security Act,
which provides unemployment compensation, old-age pension benefits, aid to blind
disabled persons, and aid to families with dependent children. The Court declared
unconstitutional the NIRA and the Railroad Retirement Act which established a
comprehensive pension system for railroad workers. May 27, 1935 goes down in
history as Black Monday when the Court deals the Roosevelt administration three
losses on a single day (Schechter, Humphrey’s and Louisville Joint Stock Land Bank
v. Radford).
In 1936, the Court continued to strike down major portions of the New
Deal.
63
In 1937, following his landslide reelection in 1936, President Roosevelt
submitted to Congress the so-called Court Packing plan that would have allowed him
to appoint additional justices to the Supreme Court, for the unexpressed purpose of
preventing further invalidation of New Deal legislation. But Justice Owen Roberts’
switch in vote, immortalized as the “switch in time that saved nine,” produced a pro-
New Deal majority, making Roosevelt’s court packing plan moot. Justice Willis
Van Devanter retired therefore giving President Roosevelt his first opportunity to fill
a seat on the Court and thereby increasing judicial support for the New Deal. His
nominee, Senator Hugo Black sails through the Senate and is confirmed five days

63
In U.S. v. Butler, 297 U.S. 1 (1936) and Carter v. Carter Coal Co., 298 U.S. 238 (1936)
invalidating the Agricultural Act and Bituminous Coal Conservation Act respectively. The Court
declared in Morehead v. New York ex. Rel. Tipaldo, 298 U.S. 587 (1936) that all minimum wage
laws, including those that apply to women and children violated due process.

99
after his nomination. In 1938, Justice George Sutherland becomes the second anti-
New Deal member to resign. By the middle of 1941, Roosevelt has filled seven
Court vacancies.

B. Power and Institutional Design
The New Deal also brought to the fore the modern dilemma of the quasi-
legislative, quasi-judicial, executive branch in the era of the new administrative state.
The drafters of the original Constitution deployed two methods of protecting us
against a tyrannical national government. The first involved the careful assignment
of competing authorities to each of the three co-equal branches of government.
“Ambition,” as Madison wrote in The Federalist, No. 51, was made “to counteract
ambition.” The Constitution seeks to “contrive the interior structure of the
government as that its several constituent parts may, by their mutual relations, be the
means of keeping each other in their proper places.” The tensions and uncertainties
resulting from the original assignment of powers have provided the focus for most of
this text.
The second strategy involves the structural and procedural design of each of
the three branches of government. For example, the choices of a bicameral Congress
and initially, of a Senate removed from direct popular control were obviously
intended to reduce what the drafters perceived to be certain risks in the creation of a

100
national legislature.
64
Likewise, the Framers thought it protective of liberty that
federal judges would be appointed rather than elected; vested with life tenure; and
subject to removal only in extreme cases and through a burdensome procedure
In 1935, the Supreme Court
65
decided two challenges to the National
Industrial Recovery Act of 1933 (NIRA), Panama Refining Co. v. Ryan, 293 U.S.
388 (1935) and A.L.A Schechter Poultry Corp. v. United States. Given the extent of
judicial permissiveness in delegation of congressional power cases up to that point,
the government did not take the delegation question seriously when it was raised in
the Panama case (Jaffe 1965, 60; Pritchett 1968, 200). Justice Jackson reported that
the delegation question “was so little anticipated that the government’s brief of 227
pages and 200 more appendix devoted only 13 pages to the subject.” (Jackson, 92)
To the surprise of many, the Court, in an 8 – 1 decision
66
written by Chief Justice
Hughes sustained the delegation challenge in Panama, and four months later in
Schechter invalidated the central provisions of the NIRA, partly on delegation
grounds.
The court held that executive orders and regulations issued prohibiting the
transportation of petroleum invalid because they transcended constitutional limits on

64
Recall, in this regard, that Chadha, was centrally concerned about preserving bicameralism, as well
as preventing legislative encroachments on executive power.
65
Hughes 3: Hughes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Stone, Roberts,
Cardozo
66
Dissent by Cardozo, “My point of difference with the majority is narrow. I
concede that to uphold the delegation there is need to discover in terms of the act a
standard reasonably clear whereby discretion must be governed. I deny that such a
standard is lacking in respect of the prohibitions permitted by this act when the act
with all its reasonable implications is considered as a whole” (Panama at 434).

101
delegation of power. It is in this case, that the Supreme Court for the first time
applied the rule of nondelegation to invalidate a congressional delegation of power.
Speaking for an eight-person majority, Chief Justice Hughes declared this
provision unconstitutional primarily because he could not discern in the language of
the statute or its context a declaration of policy for the guidance of presidential
discretion. (Panama 415-416). Citing the vesting provision of Article I and the
Necessary and Proper Clause, Hughes stated that Congress “manifestly is not
permitted to abdicate, or to transfer to others, the essential legislative functions with
which it is thus vested.” However, he recognized that,
…legislation must often be adapted to complex conditions involving a host
of details with which the national legislature cannot deal directly. The
Constitution has never been regarded as denying to the Congress the
necessary resources of flexibility and practicality, which will enable it to
perform its function in laying down policies and establishing standards,
while leaving to selected instrumentalities the making of subordinate rules
within prescribed limits and the determination of facts to which the policy as
declared by the legislature is to apply. Without capacity to give
authorizations of that sort we should have the anomaly of a legislative
power which in many circumstances calling for its exercise would be but a
futility (Panama at 421).

Hughes assumed that unless Congress established statutory guidance, the
president’s discretion would be uncontrolled and, therefore, inappropriate for an
executive officer.
67

A. L. A. Schechter Poultry Corps. v. United States, 295 U.S. 495 (1935), also
known as the “sick chicken” case was the second of two congressional delegations of

67
“… the constant recognition of the necessity and validity of such provisions, and the wide range of
administrative authority which has been developed by means of them, cannot be allowed to obscure
the limitations of the authority to delegate if our constitutional system is to be maintained.”
(Panama at 421.)

102
powers cases that came to the Supreme Court during its 1934 term. The petitioners
were convicted in federal district court for violating the regulations of the Live
Poultry Code that had been established by a trade association created pursuant to the
congressional delegation of power to the Executive Branch in the National Industrial
Recovery Act of 1933. This case involved a criminal prosecution of the Schechter
Company and its officers because they refused to comply with a Live Poultry Code
promulgated under the provisions of the NIRA. The NIRA authorized the President
to approve “codes of fair competition” drafted by an industry if he found it “will tend
to effectuate the policy this title.” The President was authorized to impose such
conditions “to effectuate the policy” declared “for the protection of consumer,
competitors, employees, and others, and in furtherance of the public interest, and
may provide such exceptions to and exemptions from the provisions of such code as
the President in his discretion deems necessary to effectuate the policy herein
declared.
68
(15 U.S.C. sec. 701). The part of the Act authorizing the President to
approve codes of fair competition was invalid because it attempted an
unconstitutional delegation of legislative power.

68
The policy “herein declared” referred to the first section of Title I of the N.I.R.A. which was
declared to be the “policy of Congress.” The policy as stated was “…to remove obstructions to the
free flow of interstate commerce which tend to diminish the amount thereof; and to provide for the
general welfare by promoting the organization of industry for purpose of cooperative action among
trade groups to induce and maintain united action of labor and management under adequate
governmental sanctions and supervision, to eliminate unfair competitive practices, to promote the
fullest possible utilization of the present productive capacity of industries, to avoid undue
restrictions of production (except as may be temporarily required), to increase the consumption of
industrial and agricultural products by increasing purchasing power, to reduce and relieve
unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to
conserve natural resources.” (15 U.S.C. sec. 701).

103
Writing for Court, Chief Justice Hughes
69
handed down the Court’s 9 – 0
decision,
Section 3 of the Recovery Act (15 U.S.C.A. sec. 703) is without precedent.
It supplies no standards for any trade, industry or activity. It does not
undertake to prescribe rules of conduct to be applies to particular states of
fact determined by appropriate administrative procedure. Instead of
prescribing rules of conduct, it authorizes the making of codes to prescribe
them. For that legislative undertaking, section 3 sets up no standards, aside
from the statement of the general aims of rehabilitation, correction, and
expansion described in section 1. In view of the scope of that broad
declaration and of the nature of the few restrictions that are imposed, the
discretion of the President in approving or prescribing codes, and thus
enacting laws for the government of trade and industry throughout the
country, is virtually unfettered. We think that the code-making authority
thus conferred is an unconstitutional delegation of legislative power.

The Schechter case is the most famous of the New Deal delegation decisions.
Chief Justice Hughes, speaking for the Court, followed the doctrines and techniques
developed in Panama to find that Congress had failed to perform its “essential
legislative function” of establishing “the standards of legal obligations.” (Schechter
at 529-530, 541-542). Cardozo concurred, holding that, if the delegation were
upheld,
…anything that Congress may do with the limits of the Commerce Clause
for the betterment of business may be done by the President upon the
recommendation of a trade association by calling it a code. This is a
delegation running riot. No such plenitude of power is susceptible of
transfer.” (Schechter at 553).

The decisions of Schechter and Panama were not to provide future events
with an effective rule of law, although no delegation since has equaled the scope of

69
Decided by Hughes 3, with member justices Hughes, Van Devanter, McReynolds, Brandeis,
Sutherland, Butler, Stone, Roberts and Cardozo.

104
the Recovery Act. Since that time, delegations approved by the Court have been
extensive.
70

In Humphrey’s Executor v. United States, 295 U.S. 602 (1935), the same
Court
71
dealt with a key issue in Presidential power – the power of removal.
President Franklin Roosevelt fired a Commissioner of the Federal Trade
Commission who had been appointed by the Republican office holder, Calvin
Coolidge, and reappointed by Herbert Hoover. Roosevelt requested the resignation
and, when it was not given, proceeded to fire Humphrey.
72
Suit was brought by the
executor of Humphrey’s estate (Humphrey died while the litigation was pending),
for recovery of back pay owed the commissioner because, it was alleged, he was
unconstitutionally removed by Roosevelt. Justice Sutherland writing for the court
upheld Congress' limitation on President's power to remove members of Federal

70
In United States v. Rock Royal Co-op., 307 U.S. 533 (1939), the Court upheld a delegation of
authority to the Secretary of Agriculture to maintain the price of certain agricultural commodities at
levels of purchasing power for a specified base period and as long as those levels were approached
“by gradual correction of the current level at as rapid a rate as the Secretary … deems to be in the
public interest and feasible in view of the current consumption demand.” (Rock Royal Co-op at 574-
577). In Yakus v. United States, 321 U.S. 414 (1943) the court upheld a delegation of authority to a
price administrator to fix prices for commodities, rents and services which “in his judgment will be
generally fair and equitable and will effectuate the purposes of this act.”(Yakus at 420).
71
Hughes 3: Hughes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Stone, Roberts,
Cardozo
72
William E. Humphrey, nominated by President Hoover for the Federal trade Commission (FTC) in
1931, had been confirmed by the Senate. The FTC Act provided that the president could remove a
commissioner for “inefficiency, neglect of duty, or malfeasance in office.” On July 25, 1933,
President Roosevelt asked Humphrey to resign, explaining that the “aims and purposes of the
Administration with respect to the work of the Commission can be carried out most effectively with
personnel of my own selection.” The following month he wrote Humphrey, “I do not feel that your
mind and my mind go along together on either policies or the administering of the Federal Trade
Commission.” After Humphrey refused to submit his resignation, Roosevelt removed him for
policy reasons rather than those specified in the FTC Act (Humphrey, 618 – 619).

105
Trade Commission based on "quasi-legislative" and "quasi-judicial" nature of agency
functions.
The removal power is “conditioned in each case by the nature of the office
being dealt with as shown particularly by the source and nature of its powers”
(Corwin 1927, 66 as cited in Fisher 1978, 71). But who decides the “nature,’ and
using what criteria? Justice Sutherland, delivering a unanimous opinion, described
the FTC as charged with the enforcement of “no policy except the policy of the law.
Its duties are neither political no executive, but predominately quasi-judicial and
quasi-legislative.” (Humphrey, 624). “Quasi,” of course, is no more precise a term
than Corwin’s “nature,” but Sutherland felt confident that a distinction could be
drawn between the executive duties of a postmaster (Myers v. United States) and the
duties of a federal trade commissioner.
73
The FTC “cannot in any proper sense be
characterized as an arm or eye of the executive.” (Humphrey, 627 – 628).
74

Delegata potestas non protest delegari, delegated powers cannot be
redelegated, is an ancient aphorism.
75
The Congress is given powers in Article I,
Section 8. Can the national legislature, for various reasons, lawfully delegate its

73
Justice Jackson, in a later case, voiced exasperation with the location of regulatory agencies in our
tripartite system, “The mere retreat to the qualifying ‘quasi’ is implicit with confession that all
recognized classifications have broken down, and ‘quasi’ is a smooth cover which we draw over
our confusion as we might use a counterpane to conceal a disordered bed.” (Federal Trade
Commission v. Ruberoid Co., 343 U.S. 470, 487 – 488 (1952) as quoted in Fisher 1978, 69).
74
If a federal trade commissioner is not in the in the executive department, Corwin asked, “where is
he? In the legislative department; or is he, forsooth, in the uncomfortable halfway situation of
Mahomet’s coffin, suspended ‘twixt Heaven and Earth?” (Corwin 1957, 378 – 379). Instead of
imagining a fourth branch, floating independently, Corwin wanted to preserve the existing three
branches of government. He regarded all nonjudicial agencies established to carry out the law as
being “executive” in the sense of the Constitution – an interpretation that largely still holds today.
75
First used in John Locke’s Second Treatise on Government, Chapter 11.

106
enumerated powers to the President? To a regulatory agency? To the Courts?
These types of cases examine these questions and trace the development of a judicial
doctrine that has been created to deal with this reality of American political life.
76

In United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), a joint
resolution passed by Congress gave the President the power to embargo arms
shipment to countries that were engaged in warfare. The Curtiss-Wright Corporation
had a contact with Bolivia to supply that country with aircraft armaments but was
prohibited from fulfilling the terms of the contract due to a presidential embargo on
that shipment of arms. The Company challenged the action of the president on the
grounds that Congress had unconstitutionally delegated power to the Executive.
In an opinion by Justice Sutherland, the Hughes Court
77
ruled that The
Trading with the Enemy Act, did not specifically delegate authority to impose as
surcharge and that the imposition of a surcharge is uniquely within the province of
Congress to levy tariffs and regulate foreign commerce. Presidential prerogative in
foreign affairs. This opinion established the doctrine that the President is the sole
organ of American Foreign Policy.

76
The rule of nondelegation has been seen as an invention of the courts, aimed at protecting the rule
of law from the encroachments of discretionary authority. In this connection the rule of
nondelegation has been construed as a corollary of the idea of due process of law. Sometimes the
rule has been regarded as the result of what is believed to be a constitutional commitment to the
legislature as the repository of popular trust, but other theorists have seen the rule as resting on
principles of republican government, which were instituted to overcome the precipitancy and
incompetence of popular assemblies (Barber 1975, 11 – 13).
77
Hughes 3

107
Figure 2. Historical New Institutionalist Decision Tree for Separation of Powers Cases:
1787 – 1946

That branch will likely preserve
power without encroachment.
Yes
Yes
Yes
Is there an explicit
textual (i.e.
constitutional) basis of
power for one of the
branches?
Is the Judiciary
involved in the
dispute?
Is the Court being
asked to disrupt an
established power
arrangement?
Is the Court being
asked to legitimize a
new expansion of
power?
Court will refuse new expansion
of power.
Maintain or even expand judicial
power.
Do not interfere with the
established power arrangement.
Yes
No
No
No
No
Cannot predict
Jurisprudential
Regimes
Institutional
Maintenance

Mission of Court
Separation of Powers
case
Grossman
Garland

Marbury
Seibold
Wayman

Barreme
Panama
A.L.A. Schechter
Humphrey’s

108
Cases Cited

A. L. A. Schechter Poultry Corps. v. United States, 295 U.S. 495 (1935)
Butterfield v. Stranahan, 192 U.S. 470 (1903)
Cargo of the Brig Aurora v. United States, 11 U.S. 382 (1813)
Ex Parte Grossman, 267 U.S. 87 (1925)
Field v. Clark, 143 U.S. 649 (1892)
Humphrey’s Executor v. United States, 295 U.S. 602 (1935)
J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928)
Little v. Barreme, 6 U.S. 169 (1803)
Marbury v. Madison, 5 U.S. 137 (1803)
McGrain v. Daugherty, 273 U.S. 135 (1927)
Myers v. United States, 272 U.S. 52 (1926)
Panama Refining Co. v. Ryan, 293 U.S. 388 (1935)
United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)
United States v. Rock Royal Co-op., 307 U.S. 533 (1939)

Wayman v. Southard, 10 Wheat. 1 (1825)
Yakus v. United States, 321 U.S. 414 (1943)

109
Table 1. Summary of Separation of Powers Cases: 1800 – 1946

Case Branches Holding SOP Theory Vote
Marbury v. Madison
5 U.S. 137 (1803)

C vs. J Established judicial review. Functionalist
Little v. Barreme
6 U.S. 169 (1804)
Powers that the Constitution assigns to one of the three branches of government may be
exercised only by that branch. A power that falls somewhere between powers assigned
to two different branches (an overlapping power) may be exercised by either of the two
branches. However, as the paramount branch because of its unique position of closeness
to the people as a whole, Congress, alone among the three branches of government, can
assign powers where doubt exists concerning which branch under the constitutional
separation of powers provisions should have jurisdiction over the power.

Functionalist
Cargo of the Brig
Aurora v. United
States,
11 U.S. 382 (1813)

C vs. E the basis for the constitutionality of a type of delegation known as “contingent
legislation.” In other words, Congress may legislate contingently, leaving to others the
task of ascertaining the facts that bring its declared policy into operation.
Functionalist
Wayman v. Southard
23 U.S. 1 (1825)

It will not be contended, that congress can delegate to the courts, or to any other
tribunals, powers which are strictly and exclusively legislative. But congress may
certainly delegate to others, powers which the legislature may rightfully exercise itself.
Functionalist
Ex Parte Garland
71 U.S. 333 (1866)
C vs. E A law required a loyalty oath be recited by any Federal court officer affirming that the
officer had never served in the Confederate government. Garland had previously
received a pardon from President Andrew Johnson. Garland argued the Act constituted a
bill of attainder and an ex post facto law which unfairly punished him for the crime he
had been pardoned for and was therefore unconstitutional. The Court ruled that the law
was indeed a bill of attainder and an ex post facto law. The court ruled that Garland was
beyond the reach of punishment of any kind due to his prior presidential pardon. The
court also stated that counselors are officers of the court and not officers of the United
States, and that their removal was an exercise of judicial power and not legislative
power.
Formalist 5 - 4
Ex Parte McCardle
74 U.S. 506 (1868)
C vs. J May the Congress withdraw jurisdiction from the Supreme Court after that jurisdiction
has been granted?
Validated congressional withdrawal of the Court's jurisdiction using as the basis for this
Formalist

110
Case Branches Holding SOP Theory Vote
repeal, the exceptions clause of Article III Section 2.
United States v. Klein
80 U.S. 128 (1871)

C vs. E/J Congress may not direct the outcome of a case by prescribing the rule of decision, nor
may Congress impair the power and effect of a presidential pardon.
Formalist
Ex parte Seibold
100 U.S. 371 (1880)
C vs. J Congress has power to vest in judiciary appointment of supervisors of elections) Functionalist
Field v. Clark
143 U.S. 649 (1892)

C vs. E If Congress establishes the statutory policies to be followed, it may delegate to the
Executive the responsibility of making determinations of fact involving exercise of
discretion. The exercise of certain administrative discretion is necessary in executing a
law, and this power may be delegated constitutionally.

Functionalist
Butterfield v.
Stranahan 192 U.S.
470 (1903)

C vs. E Court allowed delegation of legislative authority to executive who then established
Board of Tea Inspectors to set standards, inspect and grade all tea. Justice White ruled
that Congress had “fixed primary standard and policy for the tea board to follow.”
Functionalist
Ex Parte Grossman
267 U.S. 87 (1925)

C vs. J In a unanimous decision, the Court found that a presidential pardon for a criminal
contempt of court sentence was within the powers of the executive. Without destroying
the deterrent effect of judicial punishment, the president's powers are to act as checks
against undue prejudice or needless severity in such sentencing by the judicial branch.
Formalist 8 – 0
McGrain v. Daugherty
273 U.S. 135 (1927)

C vs. J establishied a presumption that congressional investigations have a legislative purpose.
This presumption was not overcome by showing that the committee also had another
purpose, such as exposure of wrongdoing. This presumption would later restrict the
Court's hand in clear cases of congressional overreaching while investigating
communists after World War II.
Functionalist
Myers v. U.S.
272 U.S. 52 (1926)
E vs. C Upheld President’s unlimited power to remove postmaster of first class. The power to
remove appointed officers is vested in the President alone. To deny the President that
power would not allow him to "discharge his own constitutional duty of seeing that the
laws be faithfully executed."

Formalist
Panama Refining Co.
v. Ryan
293 U.S. 388 (1935)
C vs. E Held that executive orders and regulations issued prohibiting the transportation of
petroleum invalid because they transcended constitutionalist limits on delegation of
powers.

Formalist 8 – 1
A.L.A. Schecter
Poultry Corp. v. U.S.
295 U.S. 495 (1935)
C vs. E Held that part of the Act authorizing the President to approve codes of fair competition
was invalid because it attempted an unconstitutional delegation of legislative power.

Formalist 9 - 0
Humphrey’s Executor
v. U.S.
C vs. E Upholding Congress’ limitation on President’s power to remove members of Federal
Trade Commission based on “quasi-legislative” and “quasi-judicial” nature of agency
Formalist
Table 1, Continued. Summary of Separation of Powers Cases: 1800 – 1946

111
Case Branches Holding SOP Theory Vote
295 U.S. 602 (1935)

functions.

United States v.
Curtiss-Wright Export
Corp., 299 U.S. 304
(1936)

C vs. J Presidential prerogative in foreign affairs. This opinion established the doctrine that the
President is the sole organ of American Foreign Policy.

Functionalist
U.S. v. Rock Royal
307 U.S. 533 (1939)
C vs. E the Court upheld a delegation of authority to the Secretary of Agriculture to maintain the
price of certain agricultural commodities at levels of purchasing power for a specified
base period and as long as those levels were approached “by gradual correction of the
current level at as rapid a rate as the Secretary … deems to be in the public interest and
feasible in view of the current consumption demand.”
Functionalist
Yakus v. United States,
321 U.S. 414 (1943)

C vs. E the court upheld a delegation of authority to a price administrator to fix prices for
commodities, rents and services which “in his judgment will be generally fair and
equitable and will effectuate the purposes of this act
Functionalist
Table 1, Continued. Summary of Separation of Powers Cases: 1800 – 1946

112
Chapter 2

The Vinson Court:

The Modern Era of Separation of Powers Begins
1946 – 1953

At the first sound of a new argument over the United States Constitution and
its interpretation, the hearts of Americans leap with a fearful joy. The blood
stirs powerfully in their veins and a new luster brightens their eyes. Like
King Harry’s men before Harfleur, they stand like greyhounds in the slips,
straining upon the start. Last week, the old bugle note rang out, clear and
thrilling, calling Americans to a fresh debate on the Constitution.

The London Economist, May 10, 1952 commenting on the Steel Seizure Case.

I. Introduction: A Product of History
While all Justices of the United States Supreme Court have been formed by
their experiences both off and on the bench – the Justices of the Vinson Court were
especially molded by their historical times. The Justices of the Vinson Court were
born during the 1880s and 1890s. By the time they joined the Court in the 1930s and
40s, they had seen profound social and economic changes in the United States. They
had also observed substantial change in the Supreme Court’s role in shaping the law.
All were appointed either by Roosevelt or by his successor, Harry Truman. Except
for Frankfurter, before joining the Court, all had held public positions where they
had worked for or with the presidents who appointed them. Frankfurter, the one
exception, had served as an informal advisor to Roosevelt.

113
The Justices of the Vinson era had vivid memories of recent profound events
which had significant effects on their beliefs about government and the Court’s role
in government. The Great Depression caused most of them to believe that there
should be a governmental role in managing the economy. Except for Burton, all
owed their Court appointments, in part, to their service to the New Deal, which they
perceived as a needed correction for the flaws of the free-market capitalism. The
“switch in time” was a recent memory for the Justices of the Vinson Court. During
the 1935 and 1936 terms, the Supreme Court had invalidated important New Deal
legislations as unconstitutional extensions of governmental power. Critics of the
Court – who at this time were political liberals – argued that the justices were
substituting their own economic beliefs for those of elected officials. These critics
called for “judicial restraint” and insisted that the Court could only invalidate
legislation when it was clearly proscribed by the Constitution. Frankfurter was a
particularly active and effective advocate of judicial restraint. These anti-New Deal
rulings provoked a proposal by Roosevelt that would have allowed him to appoint
additional justices. This Court-packing plan failed, but not before causing
considerable debate about the Court’s function. Black, Rutledge, and Minton – none
of whom had yet joined the Court – were vocal supporters of the “Court-packing
plan.”
Beyond governmental involvement in the economy, the other great influence
of the Justices of the Vinson Court was the recently fought Second World War. The

114
War, which ended the year before Vinson’s appointment, demonstrated the need for
a strong central government and the danger of hostile foreign powers. It also ended
any respect for fascism’s claim of racial superiority, a claim that was similar to the
state imposed racial segregation in the United States. The residual effects of the
World War II were to be felt for the next 50 years in the form of the Cold War. This
new type of undeclared war and constant state of fear regarding the scope and spread
of communism frightened many if not most Americans. The Justices of the United
States Supreme Court were not immune to this fear. During the turbulent days of the
height of the “red scare” many otherwise sober individuals accepted the premise that
communist agents were everywhere among us and possessed untold skills to subvert
our democratic way of life.
The Vinson Court justices often drew different conclusions from these
shared experiences. The great constitutional controversy of the 1930s over the
legality of governmental intervention in the economy was over. None of the Vinson
Court’s members had been on the Court during the controversy, and all were
subsequently appointed because of their support or at least acceptance of the New
Deal. The justices differed greatly, however, on what was to be learned from the
controversy. To some, such as Frankfurter, the lesson was the need for judicial
restraint because the crises occurred when earlier justices had confused their own
beliefs with constitutional principles and had halted the essential reform efforts of
the Congress and the president. To others, such Black, the controversy marked the

115
end of one era and the beginning of a period of reform which could come from the
Court when the other branches failed to act or acted improperly.
Although the constitutionality of governmental intervention in many markets
was well established, the function of the government in the market for ideas was still
confused. The earlier debate about the government’s role in the economy was often
couched in terms of individual liberties but sometimes with different results. Some
of the justices, such as Black, Douglas Murphy, and Rutledge, held the modern,
schizophrenic view that government had great wisdom when intervening the market
for goods and resources, but was absolutely incompetent in the market for ideas.
Others, such as Reed, Clark, and Minton, believed that some ideas were so obviously
dangerous, especially communism, that their dissemination could be banned or at
least discouraged by the government.
All the justices disliked the racial discrimination that was prevalent in the
nation. The Vinson Court moved against racial discrimination in a careful and
gradual fashion. Although agreeing that it was wrong, the justices differed on the
Court’s role in its elimination. The landmark case of Brown v. Board of Education,
345 U.S. 972 (1953), was begun during Vinson’s tenure but was completed after Earl
Warren became Chief Justice. Warren was the only new justice; the other eight
justices participating the Brown decision had served on the Vinson Court.

116
II. The Vinson Court
The Vinson Court is unique among the Courts covered in this study. While
the Warren, Burger and Rehnquist Courts occasionally or constantly functioned in
the context of mixed government, the Vinson Court was in session during a time of
Democratic hegemony. From 1932 to 1968, Democratic presidents made 16 out of
the 21 appointments to the Supreme Court. Meanwhile, during the same time, the
Democratic Party was almost always in the majority (although not always super-
majorities) in both the House of Representatives and the Senate (Lamb and Halperin
1991, 10).
There were three natural courts
78
during Vinson’s tenure: the first began in
1946 with the appointment of Vinson and ended in the summer of 1949 with the
deaths of Murphy and Rutledge; the second, brief court began in August of 1949
with Clark’s appointment and ended with the start of the more significant third
natural court which began in October of 1949 with Minton’s appointment and ended
with the chief justice’s death in 1953.
The Vinson Court was divided into two identifiable blocs: During the first
natural Court, the “liberal” bloc contained Black, Douglas, Murphy, and Rutledge,
and the “conservative” bloc contained Vinson, Reed, Frankfurter, Jackson, and
Burton. During the second natural Court, the liberal bloc was reduced to Black and

78
A natural court spans all the terms during which the Court’s membership remains unchanged.
Therefore, while we refer to only one Vinson Court, there were actually 11 justices in three
different court line-ups.

117
Douglas when Clark and Minton joined the conservative bloc. These blocs are a
useful but very crude taxonomy of the justices’ judicial positions. The members of a
bloc frequently voted together, but their votes did not result from an implicit or
explicit agreement to cooperate, i.e., the bloc members were not trying to vote as a
group. Justices felt no enduring loyalty to one bloc and frequently joined the other
for certain types of cases. For example, Back and Frankfurter, who are often seen as
leaders of the two blocs, frequently dissented together form the Court’s anti-
libertarian interpretation of federal legislation dealing with civil liberties (Pritchett
1954, 231 – 238). There were also blocs within blocs. The liberal Rutledge and
Murphy were particularly close, as were the conservatives Jackson and Frankfurter.

A. Chief Justice Fredrick M. Vinson
Fredrick Moore Vinson was nominated as the thirteenth Chief Justice of the
United States on June 6, 1946, by his friend and political ally, Harry Truman, and
was confirmed by the Senate on June 20, 1946. He replaced Chief Justice Harlan
Stone, who had died on April 22, 1946. Vinson’s tenure, which lasted seven and a
half years, ended with his unexpected death on September 8, 1953. He was
succeeded in office by Earl Warren.
Vinson was born on January 22, 1890, in Louisa, Kentucky. He attended
Centre College where he received an A. B. in 1909 and an LL.B. in 1911. After
joining the bar, he practiced law in Louisa and later in Ashland, Kentucky, became
active in local politics, and served as city and later commonwealth attorney. He

118
entered the U.S. House of Representatives in 1924 where he eventually became an
important member of the House Ways and Means Committee and gained recognition
as an expert on tax legislation. In return for his congressional support for the New
Deal, he was appointed by President Roosevelt to the United States Circuit Court of
Appeals for the District of Columbia in 1938. After five years of service on the
Court of Appeals, he returned to a series of executive posts in the Roosevelt and
Truman administrations. He was serving as secretary of the treasury when he was
appointed chief justice. While on the Court, Vinson remained a close friend and
advisor to Truman who sought the chief justice’s counsel on a wide range of issues.
Because of Vinson’s ability as compromiser and conciliator, as well as his
experience in government, President Truman hoped that Vinson would unify and
lead the justices, whose personal and judicial differences were becoming a threat to
the institution’s prestige. Vinson, however, lacked the requisite skills and was never
a dominant actor on the Court. His brethren respected his integrity and decency; but
as an intellect, scholar, writer, and leader, he was overshadowed by some of his
colleagues.
All eight of the associate justices whom Vinson joined in 1946 had served
with Chief Justice Stone, and all but Burton had served with Chief Justice Hughes.
Both of these chief justices possessed talents that eclipsed Vinson’s. Hughes, in
particular, was a skilled legal theorist and a dominant figure on his Court. Vinson
was neither a judicial philosopher nor a legal theorist. His beliefs in judicial

119
restraint, pragmatism, common sense, and the beneficence of government led him to
defer to the legislative and executive branches whenever possible.
During his tenure, Vinson averaged writing thirteen opinions per year, Of his
total ninety-one opinions, twelve were dissenting and seventy-six were opinions for
the Court. He dissented a total of sixty-seven times, fifty-five times without opinion
(Blaustein and Mersky 1978, 146 – 49). The dissenting pattern in the Court under
Vinson became more frequent and intense. Before 1935, approximately 85 percent
of the cases were decided unanimously. The percentage of unanimous opinions for
Vinson’s first term were 36 percent, dropping to 26 percent in his third term and to a
record low of 19 percent in 1952 (Kirkendall 1969, 2642).
79

General position within Supreme Court: Conservative toward civil liberty
claims, moderate conservative in business regulation and labor cases (Westin 1958,
130).

B. Justice Hugo L. Black
Hugo L. Black was seated on the Supreme Court from 1937 and served on
the Court until poor health forced his retirement on September 17, 1971. Because of
his length of service, Black would serve as the most senior Justice on three courts:
Vinson, Warren and Burger. He was born the last of eight children on February 27,

79
These percentages are interesting for reasons other than their stark contrast from the immediate and
long term past history of the court – they are in direct conflict with the predicted voting behavior as
set forth by the attitudinal model of judicial behavior.

120
1886 in Harlan, a small town in rural Clay County in Alabama. After receiving an
LL.B. from the University of Alabama in 1906, he practiced law in Ashland and later
in Birmingham. He joined the Ku Klux Klan in 1923 – an action which later was not
only embarrassing, but also inconsistent with his subsequent strong support for civil
rights. Black entered the U.S. Senate in 1927 as “the poor man’s candidate” and
became (after Roosevelt’s election in 1932) a major supporter of the New Deal. As a
senator, he was instrumental in the passage of the Fair Labor Standards Act and
investigated the lobbying activities of public utilities and abuses of governmental
subsidies by the marine and airline industries. Black’s nomination of August 12,
1937, was the first Supreme Court appointment made by President Roosevelt. He
was confirmed by the Senate on August 17, 1937. The issue of Black’s Klan
membership resurfaced following the confirmation process,
80
but Black’s voting
record on the bench soon assuaged critics who had felt that he was a racist
81
(Ball
1991, 35 –36).

80
A conservative newspaper, the Pittsburgh Post-Gazette broke the story while Black was in Europe.
President Roosevelt responded to the news by saying “that he had not known of any Klan link when
he appointed Black to the Court. ‘I only know what I read in the newspaper.’”(Hamilton 1982).
Black himself later wrote that “President Roosevelt, when I went up to lunch with him [before the
confirmation] told me there was no reason for my worrying about my having been a member of Ku
Klux Klan. He said that some of his best friends and supporters he had in the state of Georgia were
strong members of that organization. He never, in any way, by word or attitude, indicated any
doubt about my having been in the Klan not did he indicate any criticism of me for having been a
member of that organization. The rumors and the statements to the contrary are wrong” (Black
Papers, Box 31 as quoted in Ball 1991, 36).
81
E.g. Chambers v. Florida and Brown v. Board of Education. Ironically, Black became so linked
with the civil rights movement, especially after Brown that he found it more and more difficult to
return to the South and his oldest son, Hugo Black, Jr. was forced to give up his law practice in
Birmingham and move to Miami (Ball 1991).

121
Black, rated as one of the great justices in the Court’s history, was one of the
dominant actors on the Vinson Court. He was a determined advocate of the
“incorporation doctrine,” which holds that the 14
th
Amendment applies the Bill of
Rights to the states (Yarbrough 1976). Black believed that the 1
st
Amendment
guarantees of free speech, press, and assembly formed the foundation for democratic
government and therefore were paramount and absolute (Ball 1991; 1977).
Although a believer in the literal interpretation of the Constitution, Black was an
activist who was unwilling to defer to the other branches of government. His energy,
determination, and legal skill made Black the leader of the Court’s “liberal” wing
which was comprised of himself, Douglas, Murphy and Rutledge. The deaths of
Murphy and Rutledge reduced his influence during the last four terms of the Vinson
Court. During the Warren era, however, Black reached the height of his influence.
Of the three schools of American jurisprudence, natural law, positive law and
sociological law, Black’s philosophy has been denoted as belonging in the positivist
law tradition (Yarbrough 1971).
82
He was, in many ways, an eighteenth century
jurist in twentieth century law. He had the “zeal to reform the laws, to cleanse away
its excrescences, to look upon law a clear instrument of the popular will, not as the

82
Legal positivism, which was advanced in England by John Austin and Jeremy Bentham in the late
eighteenth and early nineteenth centuries, consisted of the notion that “the only law relevant to a
legal system is “positive law” [consisting] of a command made and enforced by the sovereign
(Yarbrough 1971). Yarbrough concluded that Black believed in the basic principles of positivism:
(1) that lawmaking belongs to the legislatures, not to the judges; (2) that to interpret law, judges
must look to the original literal meaning of the legislator, and if more than one interpretation is
valid, weight should go to the construction “with greater merit”; (3) that law and morals are separate
entities; and (4) that clarity and consistency are necessary as definite standards of law.

122
patina of the judges’ glass (Freund 1967, 473). His political jurisprudence rejected
the idea of natural law and the view that judges out to be social engineers. Black
believed that the “only relevant law is the positive law, the commands made and
enforced by the sovereign” (Yarbrough 1971, 377). Black believed that the
Constitution enables a legislature “to do virtually anything it wishes in controlling
the economy” (Berman 1965, 50) and that the government had, at all levels, the
power to govern and maintain order (Ball 1991).
General position on Court: left-liberal toward civil liberty claims, left-liberal
in business regulation and labor cases.

C. Justice Stanley Reed
Stanley Reed was born December 31, 1884, in Mason County, Kentucky. He
received his bachelor’s degree from Kentucky Wesleyan in 1902 and from Yale in
1906. Although he studied law at the University of Virginia, Columbia, and the
Sorbonne, he did not earn a law Degree. In 1910 he began a successful law practice
in Maysville, Kentucky, which eventually included the Burley Tobacco Growers
Cooperative as a client. Reed’s knowledge of tobacco marketing led to an
appointment in the Hoover administration as counsel to the Federal Farm Board in
1929. After serving in a series of posts in the Hoover and Roosevelt administrations,
he was appointed solicitor general in 1935. In this position, he argued the
constitutionality of New Deal legislation before an often hostile Supreme Court. He

123
was nominated to the Court by Roosevelt on January 15, 1938, and was confirmed
by the Senate on January 25, 1938. He served on the Court until his retirement on
February 26, 1957.
Reed was a moderate or “center” justice. He accepted as necessary and
beneficial the governmental intervention into the economy resulting from the New
Deal legislation that he had defended as solicitor general. In the area of civil
liberties, he was more likely to support the government against claims of individual
rights, especially if the case dealt with the loyalty-security programs.
General position on Court: moderate conservative toward civil liberty
claims, moderate conservative in business regulation and labor cases (Westin 1958,
130).

D. Justice Felix Frankfurter
Felix Frankfurter, whose family immigrated to the United States when he was
twelve years old, was born on November 15, 1882, in Vienna, Austria. He graduated
from the City College of New York in 1902 and the Harvard Law School in 1906.
After joining the bar, he became an assistant U.S. attorney and then an assistant to
the secretary of war. In 1914 he joined the Harvard Law School faculty where he
served as a distinguished scholar and teacher. He was a founding member of the
ACLU and an advisor to the NAACP. Frankfurter became an unofficial advisor to
the then Governor Franklin Roosevelt in 1928. After Roosevelt became president,

124
Frankfurter – with some success – tried to shape the New Deal with his ideas and his
former students, who populated the Washington bureaucracy (Dawson 1980: 169-
171). In 1933, he rejected an appointment as solicitor general because the demands
of the position would preclude his service as an unofficial presidential advisor on a
wide variety of topics. Frankfurter’s services were rewarded with a Supreme Court
nomination on January 5, 1939. He was confirmed on January 17, 1939, and served
until ill health forced his retirement on August 28, 1962.
Although one of the most brilliant men ever to serve on the Court,
Frankfurter was also one of the most surprising. His pre-Court liberalism was
missing from many of his judicial decisions because his strict adherence to the
philosophy of judicial restraint led him to defer to the legislative and executive
branches whenever possible. He believed that a judge’s greatest responsibility was
to avoid substituting his own policies for the erroneous policies of elected officials
unless the erroneous policies were clearly proscribed by the Constitution. On the
Vinson Court, Frankfurter was often allied with Jackson and had both personal and
judicial conflicts with Douglas, Murphy and Black.
General position on Court: moderate liberal toward civil liberty claims,
moderate liberal in business regulation and labor cases (Westin 1958, 131).

125
E. Justice William O. Douglas
William O. Douglas was born on October 16, 1898 in Ottertail County,
Minnesota. In 1904, following his father’s death, his family moved to Yakima,
Washington. He childhood was a struggle against illness and poverty, both of which
he ultimately defeated. In 1916, Douglas enrolled in Whitman College from this he
graduated in 1920. After teaching school for two years, he left the state of
Washington for the Columbia Law School. Following graduation from Columbia in
1925, he practiced law on Wall Street and in Yakima. In 1927, he joined the law
faculty at Columbia where he began building a reputation as an expert in corporate
law and bankruptcy. In 1929 he moved to Yale where he taught until he joined the
staff of the Securities and Exchange Commission in 1934. He was promoted to
membership in the SEC in 1936 and to the chairmanship in 1937. Roosevelt
nominated him to the Supreme Court on March 20, 1939. He was confirmed on
April 4, 1939, and served until failing health forced his retirement on November 12,
1975.
Douglas played a major role in shaping the law during his thirty-six years on
the Court. Although he joined the Court as an expert on business law, he is now
remembered as a tenacious and impassioned proponent of the freedoms of speech
and press. He was a loner who never proselytized. On many important issues he
was allied with Black and, to a lesser extent, with Murphy and Rutledge. Douglas

126
was a colorful and controversial justice. He wrote numerous books, had four wives
83

and survived two serious but ill conceived attempts at impeachment.
84

Douglas’ general position on the court was as a left-liberal toward civil
liberty claims, left-liberal in business regulation and labor cases (Westin 1958, 131).
Douglas saw at least two major types of executive power problems. The first
stemmed from abuses by the president, and the second concerned his view of the
growing power of administrative agencies. Over time, he underwent a change in
attitude toward presidential power (Cooper 1991, 168). Douglas was not always
reflexively suspicious of a powerful executive branch. In the 1940s, he was willing
to grant considerable deference to the executive branch in foreign policy and in the
prosecution of declared war.
85
However, he concurred with the Court’s Youngstown
Sheet & Tube v. Sawyer (1952) ruling against Truman’s seizure of the nation’s steel
mills during the Korean War, arguing against other justices’ pragmatic tendencies by

83
Douglas “scandalous” behavior included divorcing his first wife in the 1950s (the Supreme Court’s
first divorce). His second wife left her husband for him and was 18 year younger than he. In the
1960s, he married and divorced two more women, both of whom were more than 40 years younger
than was he. He was married for the last time in 1966, to his fourth wife, who was a 22 year-old
waitress.
84
Conservatives were troubled by rumors that despite his age, he was sexually promiscuous and
frequently unfaithful to his wives. Mounting calls for impeachment finally prompted House
Minority Leader Gerald Ford to undertake formal impeachment proceedings against Douglas in
1970. This was widely viewed as retaliation for the Democratic Senate’s rejection of two of
President Nixon’s Supreme Court nominees. According to the Constitution, a Supreme Court
Justice can only be impeached for failing to exercise “good behavior.” When Congressman Ford
was asked what was Douglas’ offense, Ford infamously responded by saying, “The only honest
answer is whatever a majority of the House of Representatives considers it to be at a given moment
in history.”
85
See for example, United States v. Pink (1942); Korematsu v. United States (1944).

127
point out that the separation of powers was not intended to produce efficiency or
ease of governance, but to protect liberties.
Today a kindly President uses the seizure power to effect a wage increase
and to keep the steel furnaces in production…Yet tomorrow another
President might use the same power to prevent a wage increase, to curb
trade-unionists, to regiment labor as oppressively as industry thinks it has
been regimented by this seizure (Youngstown at 634).

He also asserted that because the exercise of certain governmental powers is
contingent upon legislative or judicial involvement, the president could not seize
property if the legislature had not authorized funds to provide just compensation for
the former owners as required by the Fifth Amendment.
Justice Douglas would engage in some of his most influential separation of
powers adjudications during the Burger Court era. Many of the separation of powers
controversies during that time centered on Presidential Power and its intersection
with the Vietnam War,
86
cold war national security policy and Watergate
87
(Cooper
1991, 168 – 169).
Beyond his concerns with Vietnam, Douglas was troubled by the
domestic activities of the Nixon administration undertaken in the name of national

86
Although a number of troubling issues came to the Court that touched upon aspects of the Vietnam
War, Douglas found the draft questions particularly troublesome. They were more than First
Amendment or due process problems; they raised issues of executive power. In his view, Vietnam
was a “presidential war” not authorized by Congress, and that made all the difference (Douglas
1980, 55).
87
Given his disdain for Richard Nixon, Douglas was not surprised by the Watergate debacle (Cooper
1991, 172). In fact, in his dissent in Gravel v. United States (1972), Douglas suggested that the
problem presented by the use of the secret stamp and of executive privilege to prevent
congressional inquiry into government’s practices “looms large as one separation of powers”
(Gravel at 638 – 639) and was bound to lead to abuses. Douglas joined the court’s unanimous
opinion in United States v. Nixon (1974) and, in fact, played a role in the collective effort of the
justices to arrive at an opinion all could join.

128
security. He was upset, first, by the fact that a number of them were unsupported by
any statutory authorization and were simply claimed to be implied by Article II. The
fact that the abuses were justified on grounds of national security and covered up by
a classification stamp bothered him even more (Cooper 1991, 171). The abuses in
New York Times Co. v. United States (1971) led the list. In this case, Douglas
attacked the government’s effort to enjoin publication of the Pentagon Papers. To
begin with, no statute authorized the action the government sought. He rejected the
executive’s claim of inherent powers to move against the publishers of the grounds
that the executive’s was power could not be asserted in this situation since “the war
powers stem from a declaration of war … Nowhere are presidential wars authorized”
(403 U.S. at 722). He was further frustrated in this case by what he saw as a clear
abuse of the “secret stamp” to cover mistakes rather than to protect vital
information.”
Douglas would have the opportunity to hear a great many separation of
powers cases focusing on executive power throughout his years on the Court. His
concurrence in The United States v. United States District Court (1972)
88
rejected the
idea that an omnibus crime bill gave the President implied warantless wiretapping
power. He wrote,
“As illustrated by a flood of cases before us this Term, …we are currently in
the throes of another national seizure of paranoia, resembling the hysteria

88
The Court was faced with another case in the which the government alleged an implied power on
the part of the president; this time it was an asserted power to used warrantless wiretaps to prevent
threats to the nation by subversives. The Court rejected the idea that such a power was to be
inferred from the Omnibus Crime Control and Safe Streets Act or from the Constitution.

129
which surrounded the Alien and Sedition Acts, the Palmer Raids, and the
McCarthy era. Those who register dissent or who petition the government
for redress are subjected to scrutiny by grand juries, by the FBI, or even by
the military. Their associates are investigated. Their homes are bugged and
their telephones are wiretapped. They are befriended by secret government
in formers. Their patriotism and loyalty are questioned… More than our
privacy is implicated. Also at stake is the reach of the Government’s power
to intimidate its critics” (470 U.S. at 329 – 333).”

Douglas’ complicated relationship with the Executive had significant context.
As a former head of the Securities and Exchange Commission, he had headed one of
the nation’s most significant and prestigious regulatory agencies. He brought this
unique experience to his many rulings on administrative agencies. He understood
the necessity of substantial delegations of authority to administrative bodies and the
usefulness of the expertise they could bring to competent government (Douglas
1956, 179). At the same time, Douglas was not prepared to allow those agencies to
pose dangers to the citizens they were designed to serve, neither was he prepared to
allow a claim of expertise to justify a violation of law or to let administrative action
go unreviewed merely because an administrator asserted expertise as the basis for
action.
89

In the area of administrative agencies, Douglas focused upon four categories
of administrative law problems. The first category dealt with fine-tuning the
relationship between the need for administrative discretion and the importance of
control over administrative power. In such cases Douglas was willing to be flexible

89
See United States v. Wunderlich 342 U.S. --- (1951) and New York v. United States, 342 U.S. ---
(1951)

130
and weigh competing concerns.
90
The second group of cases concerned the Freedom
of Information Act. Douglas was not prepared to see agencies hide behind
exemptions to the act when a possible need for knowledge about government
performance was at issue.
91
The third set of cases concerned the availability of
judicial review, whether the issue was reviewability or had standing. In these cases,
Douglas was uncompromising. The idea or unreviewable administrative power was
simply unacceptable under all but the most unusual circumstances,
92
and in cases in
which agencies threatened critical constitutional freedoms such as privacy or
freedom of the press, he was equally adamant.
93

F. Justice Frank Murphy
Frank Murphy was born April 13, 1890, in Harbor Beach, Michigan. He
attended the University of Michigan where he received an A.B. in 1912 and an LL.B.
in 1914. Following service in Europe during the First World War, Murphy studied
law for brief periods at Lincoln’s Inn in London and Trinity College in Dublin. He
became active in Detroit politics where he served as assistant U.S. attorney (1919 –
1920), judge on the Detroit Recorder’s Court (1923 – 1930), and mayor (1930 –

90
See for example American Farm Lines v. Black Ball Freight (1970); Weinberger v. Hynson,
Wescott & Dunning (1973).
91
See for example, Environmental Protection Agency v. Mink (1973); dissenting.
92
See for example, Association of Data Processing Service Organizations, Inc. v. Camp (1970);
Barlow v. Collins (1970); Sierra Club v. Morton (1972), dissenting.
93
See for example, CBS, Inc., v. Democratic National Committee (1973), concurring; United States v.
Midwest Video (1972), dissenting; National Cable Television Association, Inc. v. United States
(1974).

131
1933). During the 1932 presidential campaign, he actively supported Roosevelt,
who appointed him governor-general of the Philippine Islands in 1933. he was
elected governor of Michigan in 1936 during a period of labor strife. His handling of
the sit-down strikes in the automobile plants was successful but generated
controversy which let to his defeat in the 1938 gubernatorial election. Murphy
joined the Roosevelt administration as attorney general in 1939. He was nominated
associate justice on January 4, 1940, and was confirmed on January 15. He died on
July 19, 1949 – near the midpoint of Vinson’s tenure.
Murphy was a result-oriented justice whose major concern was fairness – as
he saw it. Legal formalities and precedents, although important, were secondary to
achieving an equitable and compassionate result. His belief that results preceded
legal reasoning was strongly opposed by Frankfurter. Murphy frequently voted with
Black and Douglas but was closest – both in philosophy and friendship – with
Rutledge.

G. Justice Robert H. Jackson
Robert H. Jackson was born February 13, 1892, in Spring Creek,
Pennsylvania. He grew up in Jamestown, New York where, at the age of eighteen,
he began a legal apprenticeship in a local firm. In addition to his apprenticeship,
Jackson received some formal training at the Albany Law School in 1912. He joined
the bar in 1913 and quickly established a lucrative and diverse practice. In 1934, he

132
became general counsel to the Internal Revenue Bureau. His talent as an advocate
resulted in a rapid series of advancements in the Roosevelt administration. He was
assistant attorney general in 1936, solicitor general in 1938, and attorney general in
1940. His service as solicitor general – while Frank Murphy was attorney general –
resulted in rivalry and friction between the two that endured during their service on
the Court. He was appointed associate justice on June 12, 1941 and was confirmed
July 7, 1941. His service on the Court, which lasted until his death on October 9,
1954, was interrupted by his temporary assignment as U.S. prosecutor at the
Nuremberg war crimes trial in 1945-46. Although he was one of Roosevelt’s closest
advisors and supporters, Jackson never saw himself as a “New Dealer.” In his own
mind, he was a conservative pragmatist who accepted Roosevelt’s economic policies
as necessary and limited reforms of a democratic and capitalist society.
Chief Justice Stone died while Jackson was serving at the Nuremberg trials.
Jackson, who coveted the chief justiceship, was greatly disappointed when the
appointment went to Fred Vinson. Believing that his colleagues had conspired to
block his appointment, Jackson became enraged at Black and publicly attacked his
participation in the Jewell Ridge case, 325 U.S. 161 (1945), which had been argued
by Black’s former partner. The incident demonstrated the deep doctrinal and
personal differences between Jackson and Black.
As a justice, Jackson strove for practical and workable solutions, especially
when the rights of an individual appeared to compete with the rights of society. He

133
was a moderate liberal toward civil liberty claims, moderate conservative in business
regulation and labor cases (Westin 1958, 131). On many issues he was allied with
Frankfurter. Both were advocated of judicial restraint and believed that the Court
should leave economic and social policy to the other branches of government.
Jackson was an extremely persuasive advocate and one of the most elegant and
powerful writers ever to serve on the court.

H. Justice Wiley B. Rutledge
Wiley B. Rutledge was born July 20, 1894, in Cloverport, Kentucky. He
attended Marysville College before transferring to the University of Wisconsin.
After graduating form Wisconsin in 1914, he taught school in Bloomington Indiana,
while a part-time student at the University of Indiana Law School. Following a
nearly fatal bout with tuberculosis, he attended the University of Colorado where he
received a law degree in 1922. He practiced law in Boulder for two years before
returning to the University of Colorado as a faculty member. Between 1924 and
1939, Rutledge held various academic posts including dean of the University of Iowa
College of Law (1935 – 1939). He publicly criticized the Court’s anti-New Deal
decisions and, in 1937, supported Roosevelt’s proposed “Court-packing plan” which
was unpopular in Iowa. In 1939, Roosevelt rewarded him with an appointment to
the United States Circuit Court of Appeals for the District of Columbia where he
served with Fred Vinson. On January 11, 1943, Rutledge received the last Supreme

134
Court nomination made by Roosevelt. The appointment was confirmed by the
Senate on February 8, 1943.
Rutledge died unexpectedly on September 10, 1949. His death, occurring
less than two months after Murphy’s death, substantially changed the Court’s
chemistry. Murphy and Rutledge shared a close friendship and similar judicial
philosophies. Their deaths made the Court more “conservative” and reduced – for
the remainder of the Vinson era – the influence of Black and Douglas.
Rutledge was a “liberal” jurist who believed that economic intervention by
the government was necessary and beneficial. The same government, however was
not to be trusted when it intervened in other activities such as speech and religion.
Although he was philosophically close to Murphy, Rutledge was more concerned
about legal forms and precedents. He produced opinions that were highly regarded
for their legal analysis and workmanship. Douglas believed that Rutledge’s early
death was partially caused by effort he put into his opinions (Douglas 1980: 28).

I. Justice Harold H. Burton
Harold H. Burton was born June 22, 1888, in Jamaica Plain, Massachusetts.
He graduated from Bowdoin College in 1909 and the Harvard Law School in 1912.
His early legal career included periods of practice in Ohio, Utah, and Idaho. After
distinguished service in the First World War, he settled in Cleveland, Ohio, where he
held a series of public offices: state legislator, city law director, and mayor. He was

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elected to the U.S. Senate in 1941. As a senator, he earned the respect and friendship
of a fellow senator, Harry Truman. On September 19, 1945, Burton became
President Truman’s first Supreme Court nominee and was confirmed by his Senate
colleagues on the day of his nomination. During his later years on the Court, Burton
suffered from Parkinson’s disease, which forced his retirement on October 13, 1958.
Burton was a cautious and studious justice who displayed great respect for
precedents and felt that important social issues were best decided by the other
branches of government. He was conservative in the realms of civil liberties,
business regulations and labor cases (Westin 1958, 132). His legal philosophy was
close to that of the chief justice. When he joined the Court, he had limited judicial
skills, which made some of his duties, such as opinion writing, difficult and time
consuming. His skills improved over time and he eventually became an effective
justice, but he was never an important intellectual force on the Court. Burton was
well liked by his colleagues and played a major role in maintaining social cohesion
during the Vinson era.

J. Justice Tom C. Clark
Tom C. Clark was born September 23, 1899, in Dallas Texas. He attended
the University of Texas where he received a bachelor’s degree in 1921 and a law
degree in 1922. After joining the bar, he engaged in private practice in Dallas, where
he was active in Democratic politics. From 1927 to 1932, he served as civil district

136
attorney for Dallas County. In 1937 he moved to Washington to accept a post in the
Justice Department. His various responsibilities included anti-trust enforcement,
internment of Japanese-Americans during the Second World War, and prosecution of
fraudulent was claims. This last activity brought him into close contact with Senator
Harry Truman, who chaired the Senate War Investigation Committee. In 1943,
Clark became assistant attorney general in charge of the anti-trust division; later in
year moved to the criminal division. He supported Truman’s vice-presidential bid at
the 1944 Democratic National Convention.
When Truman succeeded to the presidency, Clark became his vigorous and
powerful attorney general. In addition to being a close presidential advisor, he
instituted numerous anti-trust prosecutions, argued important cases before the
Supreme Court, and developed an anti-communist program which included the
notorious attorney general’s list of subversive organizations. Clark’s loyalty-security
programs, aimed at revealing communists and communist-front organizations,
shielded Truman from charges that he was “soft on communism” and helped him
win reelection in 1948.
Under his direction as Attorney General, the Justice Department prosecuted
414 cases in the Supreme Court and won 314. Of these cases, 160 were in the area
of anti-trust. Clark himself argued before the Vinson Court in a case under
consideration in this piece, the seizure case, United States v. United Mine Workers of
America (1947). He also directed another of our key cases, the loyalty case against

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Eugene Dennis and others accused under the Smith Act in Dennis v. United States
(1951).
On July 28, 1949, Clark was nominated to fill the vacancy created by
Murphy’s death. He was confirmed on August 18, 1949, and served until June 12,
1967, when the appointed of his son, Ramsey Clark, as attorney general created the
appearance of conflict-of-interest because the younger Clark would be litigating
numerous cases before the Court. Clark’s judicial philosophy changed during his
eighteen years on the Court, but during the Vinson era, he was particularly concerned
about protecting the government from communist subversion. He was a
conservative in regards to civil liberties and a moderate conservative in business
regulations and labor cases (Westin 1958, 132).

K. Justice Sherman Minton
Sherman Minton was born October 20, 1890, in Georgetown, Indiana. He
received an LL.B. degree from Indiana University in 1915 and an LL.M. from Yale
in 1917. He was named counselor to the Indiana Public Service Commission in
1933, a position that he used to support Indiana’s “Little New Deal.” In 1934,
Minton was elected to the U.S. Senate where he served with fellow Senators Hugo
Black and Harry Truman. Minton developed a close friendship with Senator Truman
and an active collaboration with Senator Black. Following his defeat in the 1940
election, Minton served for a short time as a presidential counselor. While working

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as Roosevelt’s counselor, Minton supported Senator Truman’s successful effort to
establish the Senate War Investigation Committee. This “Truman Committee,”
which included Harold Burton, gave the then Senator Truman national exposure. In
1941, Minton was appointed to the U.S. Circuit Court of Appeals for the Seventh
Circuit by Roosevelt. On September 15, 1949, President Truman nominated Minton
to fill the vacancy created by Rutledge’s death. He was confirmed by the Senate on
October 4, 1949. Poor health forced him to retire on October 15, 1956.
Of all the men who served on the Vinson Court, Minton was the most likely
to believe in the beneficence of government and was the most willing to defer to
decisions of the legislative and executive branches. As a consequence, he was
ideologically close to Vinson, Reed, Clark, and Burton.
94
Although intelligent,
Minton displayed no great intellectual leadership on the Court. As a senator, he had
worked for innovation and change, but, as a justice, he worked for neither. In the
Senate, he had collaborated closely with Hugo black, but on the Court, he and Black
were on opposite sides of many important issues. The difference between Senator
Minton and Justice Minton resulted from his belief that innovation and change
should come form elected legislators rather than appointed judges.

94
General position on Court: conservative civil liberties; conservative business regulations and labor
cases (Westin 1958, 132).

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III. The Cases
There are only 11 cases
95
that make mention of the phrase separation of
powers during the entire Vinson era. Of those, only a handful are clear separation of
powers disputes and of those only three are what one could consider “classical” or
separation of powers disputes. Yet in even those three cases, including the most
famous, Youngstown, the separation of powers issues are mired in other, sometimes
overriding, controversies. For this reason, the analysis of these cases as “pure”
rulings on separation of powers is somewhat tainted. Nevertheless, an analysis of
these controversies, the rulings and the justices can still be illuminating. The cases
below are addressed in chronological order, from the earliest to the latest.
In United States ex rel. Tennessee Valley Authority v. Welch, 327 U.S. 546
(1946), the Court
96
in an 8 – 0 decision written by Justice Black, determined that the
separation of powers doctrine “would be unduly restricted” if the state could invoke
the police power to virtually immunize all takings from judicial review (TVA at 556
– 557). Furthermore, the fact that a court had never struck down a legislative

95
They are American Newspaper Publishers Association v. NLRB, 345 U.S. 100 (1953). Dennis v.
United States, 341 U.S. 494 (1951). FTC v. Ruberoid Co., 343 U.S. 470 (1952). Joint Anti-Fascist
Refugee Comm. v. McGrath, 341 U.S. 123 (1951). Kedroff v. St. Nicholas Cathedral of the Russian
Orthodox Church in North America, 344 U.S. 94 (1952). National Mutual Insurance Co. v.
Tidewater Transfer Co., 337 U.S. 582 (1949). Pennekamp v. Florida, 328 U.S. 331 (1946). Spector
Motor Serv. v. O’Connor, 340 U.S. 602 (1951). United Public Workers v. Mitchell, 330 U.S. 75
(1947). United States v. Reynolds, 345 U.S. 1 (1953). United States v. UMW, 330 U.S. 258 (1947).
United States ex rel. TVA v. Welch, 327 U.S. 546 (1946). Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952).
96
Vinson 1: June 24, 1946 – August 24, 1949 Members: Vinson (appointed June 24, 1949), Black,
Reed, Frankfurter, Douglas, Murphy (died July 19, 1949), R. Jackson, W. Rutledge, Burton

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determination of public use as unconstitutional “does not mean that power to review
is wanting” (TVA at 557).
In United Public Workers v. Mitchell, 330 U.S. 75 (1947), federal employees
sued to enjoin the Hatch Act of 1940,
97
which prohibited federal executive branch
employees from engaging in politics. The employees' boss had told them that they
could not participate in political campaigns without being fired, leading the
employees to file suit. The Supreme Court
98
awarded standing to one plaintiff who
had actually been threatened with firing; the other employees had not faced such a
direct threat, and their cases were dismissed for lack of ripeness. Despite the chill on
political activity, the strongly divided court held that the plaintiffs must wait until
they suffered enforcement action under the Act. Contingent harms were viewed as
too remote to support jurisdiction (Pushaw 1996; Nichol 1987).
The Constitution allots the nation's judicial power to the federal courts.
Unless these courts respect the limits of that unique authority, they intrude
upon powers vested in the legislative or executive branches. Judicial
adherence to the doctrine of the separation of powers preserves the courts
for the decision of issues, between litigants, capable of effective
determination. Judicial exposition upon political proposals is permissible
only when necessary to decide definite issues between litigants. When the
courts act continually within these constitutionally imposed boundaries of
their power, their ability to perform their function as a balance for the

97
The original Hatch Act of 1939 prohibited almost all federal employees, including most political
appointees from political activities. The penalties including possible imprisonment and mandatory
dismissal. Enforcement was assigned to the Justice Department. When Congress revised the Hatch
Act in 1940, it added, for the first time, coverage of state and local employees "whose principal
employment is in connection with any activity which is financed in whole or in part by loans or
grants made by the United States" and made clear that the act's restrictions applied to employees of
the District of Columbia. The Hatch Act now applies to all civilian executive branch employees,
career and politically appointed, except for the President and Vice President (5 U.S.C. 7322).
98
Vinson 1: Majority opinion written by Reed; Dissenters: Black, Douglas (in part) Not
participating: Murphy, Jackson

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people's protection against abuse of power by other branches of government
remains unimpaired. Should the courts seek to expand their power so as to
bring under their jurisdiction ill defined controversies over constitutional
issues, they would become the organ of political theories. Such abuse of
judicial power would properly meet rebuke and restriction from other
branches. By these mutual checks and balances by and between the branches
of government, democracy undertakes to preserve the liberties of the people
from excessive concentrations of authority. No threat of interference by the
Commission with rights of these appellants appears beyond that implied by
the existence of the law and the regulations. Watson v. Buck, supra, 313 U.S.
at page 400, 61 S.Ct. at page 966. We should not take judicial cognizance of
the situation presented on the part of the appellants considered in this
subdivision of the opinion. These reasons lead us to conclude that the
determination of the trial court, that the individual appellants, other than
Poole, could maintain this action, was erroneous (United Public Workers at
90 – 91).

United States v. United Mine Workers of America, 330 U.S. 258 (1947). In
1947 the U.S. Supreme Court
99
upheld a federal district court decision fining the
United Mine Workers of America $700,000 and its president, John L. Lewis,
$10,000 for contempt of court. The case, which arose out of the union's defiance of a
federal district court injunction against a 1946 coal strike, was the culmination of
Lewis's contentious relationship with the federal government during the 1940s.
Court affirmed the issuance of a temporary restraining order, a preliminary
injunction, and contempt judgments against the United Mine Workers Labor Union
and Lewis. It ruled that the district court had jurisdiction to issue the injunction and
the restraining order.

99
Vinson 1: Decided by a divided Court. Majority Opinion written by Vinson Dissenters (all in
part): Murphy, Rutledge, Black, Frankfurter, Douglas, Jackson

142
In C. & S. Air Lines v. Waterman Corp., 333 U.S. 103 (1948), the Supreme
Court said that it would be
…intolerable that courts, without the relevant information, should review
and perhaps nullify actions of the Executive taken on information properly
held secret. Nor can courts sit in camera in order to be taken into executive
confidences. But even if courts could require full disclosure, the very nature
of executive decisions as to foreign policy is political, not judicial (C. & S.
Air Lines 111).

The case exemplifies the Court’s great deference toward presidential
responsibilities in military and diplomatic matters.
While it may be proper for the court on some occasions to defer to the
president on national security grounds, Congress should not take the same attitude.
Unlike the courts, Congress has explicit responsibilities under the Constitution to
declare war, provide for the common defense, raise and support armies, and provide
and maintain a navy. Legislative expertise exists in the Armed Services Committees,
the defense appropriations subcommittees, the Budget committees, and a number of
other subcommittees of the House and Senate. Defense by the courts, therefore,
need not mean deference by Congress. In C. & S. Air Lines, the Supreme Court
declined to settle an issue on the ground that foreign policy decisions “are wholly
confided by our Constitution to the political departments of the government,
Executive and Legislative (emphasis added, C. & S. Air Lines at 111).
Judgments within the powers vested in courts by the Judiciary Article of the
Constitution may not lawfully be revised [or] overturned . . . by another
Department of Government (C & S Air Lines at ).

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In National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582
(1949), the Court dealt with Congressional power to vest Article III Courts with non-
Article III power. In Tidewater, the Supreme Court confronted the question whether
Congress could expand the jurisdiction of federal courts beyond the class of cases
and controversies enumerated in Article III. In three separate opinions, six Justices
reaffirmed the traditional view that federal courts are courts of limited jurisdiction
whose judicial powers are bounded by Article III (Tidewater at 607).
100
In cases
reaching as far back as Marbury v. Madison, 5 U.S. 137 (1803), the Supreme Court
has held that Congress may not expand the jurisdiction of federal courts beyond the
limits established by Article III.
101
More recently, in Seminole Tribe of Florida v.
Florida, 517 U.S. 44 (1996), the Supreme Court stated that "Congress could not
expand the jurisdiction of the federal courts beyond the bounds of Article III"
(Seminole at 1128 citing Marbury v. Madison, 5 U.S. 137).

100
(Rutledge, J., joined by Murphy, J., concurring in the judgment); id. at 635 (Vinson, C.J., joined by
Douglas, J., dissenting); id. at 647 (Frankfurter, J., joined by Reed, J., dissenting). Justice Jackson
expressed a contrary view in his plurality opinion announcing the judgment of the Court. Id. at 583
(Jackson, J., joined by Black and Burton, JJ.). He wrote that, under Article I, Congress could grant
jurisdiction for federal courts to hear non-Article III cases (Tidewater at 592 – 593). Justices
Rutledge and Murphy, who "strongly dissent[ed]" from that reasoning, nonetheless concurred in
the result on other grounds. See id. at 604, 626 (Rutledge, J., concurring in the judgment) (calling
the opinion of Justice Jackson a "dangerous doctrine").
101
See Kline v. Burke Construction Co., 260 U.S. 226, 234 – 235 (1922). "[Congress] may give,
withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the
boundaries fixed by the Constitution."); Sheldon v. Sill, 49 U.S. 441, 449 (1850) ("The Constitution
has defined the limits of the judicial power of the United States . . . "); Hodgson v. Bowerbank, 9
U.S. 303, 304 (1809) (Marshall, C.J.) ("Turn to the article of the constitution of the United States,
for the statute cannot extend the jurisdiction beyond the limits of the constitution.").

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Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951). Burton
wrote the majority opinion
102
in Joint Anti-Fascist Refugee Comm. v. McGrath, 341
U.S. 123. Executive Order 9835 authorized the Attorney General to supply a list of
organizations deemed “totalitarian, fascist, communist, or subversive” to the Loyalty
Review Board of the United States Civil Service Commission. Burton’s opinion
narrowly found the use of the list an arbitrary exercise of power. He did not deny the
validity of such a list if properly drawn and defendable. He therefore remanded the
case for a hearing on the merits, asserting that the summary dismissal of the
complainant’s case was evidence of arbitrariness and a denial of due process.
Burton, insisting on strict procedural regularity, ordered the Attorney General to
answer the petitioners’ allegations that they did not in fact belong on such a list.
As Attorney General under President Truman, Thomas Clark drafted the
historic Executive Order, number 9835, announced by Truman on March 21, 1947
which created a comprehensive and controversial federal loyalty program. As part of
this program, he compiled “the first Attorney General’s list of dangerous political
organizations,” (Kirkendall 1969, 2666) and he actively participated in the
administration of other aspects of the loyalty security program for federal employees.
Clark’s part in initiating the program prompted his abstention from consideration of
loyalty cases heard by the Court during his first years on the bench, Bailey v.
Richardson (1951) and Joint Anti Fascist Refugee Committee v. McGrath (1951).

102
Decided 5-3. Majority opinion written by Burton. Dissenters: Vinson, Reed, Minton. Not
participating: Clark

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In Dennis v. United States, 341 U.S. 494 (1951), the Court
103
addressed the
limits of Congressional Power against the preservation of individual liberty, here the
1
st
and 5
th
Amendments.
104
The Dennis case represents the last stage of the 1949
trial of the 11 leaders of the Communist Party of the United States for violations of
the Smith Act of 1940. The Supreme Court granted certiorari, limited to a review of
whether Sections 2 or 3 of the Smith Act, inherently or as construed or applied,
violated the First or Fifth Amendment. In 1948, the leaders of the Communist Part
of America were arrested and charged with violating provisions of the Smith Act.
The Act made it unlawful to knowingly conspire to teach and advocate the overthrow
or destruction of the United States government. Party leaders were found guilty and
lower courts upheld the conviction. Did the Smith Act's restrictions on speech
violate the First Amendment? In a 6 – 2 decision, the Court upheld the convictions
of the Communist Party leaders and found that the Smith Act did not "inherently"
violate the First Amendment. In the plurality opinion, the Court held that there was a
distinction between the mere teaching of communist philosophies and active
advocacy of those ideas. Such advocacy created a "clear and present danger" that
threatened the government. Given the gravity of the consequences of an attempted

103
Decided 6 – 2 Majority opinion written by Vinson. Dissenter: Black, Douglas. Not Participating:
Clark
104
This case is not a true interbranch dispute and will thus not be included in the models. I cover it
here as an example of the co-mingling of issues of governmental power and individual liberty. The
Warren Court (as shown in Chapter 3) would encounter this co-mingling quite frequently.

146
putsch, the Court held that success or probability of success was not necessary to
justify restrictions on the freedom of speech (Mason and Stephenson 1987, 461).
In FTC v. Ruberoid Co., 343 U.S. 470 (1952), the Court, in a 6 – 2
decision,
105
held that Congress has vested in the Federal Trade Commission the
primary responsibility for fashioning orders dealing with Clayton Act violations, and
the courts will not interfere except where the remedy selected has no reasonable
relation to the unlawful practices found to exist. Justice Jackson, in a bitter dissent
admonishing the path by which the bureaucratic state had been given a constitutional
pass, wrote,
The mere retreat to the qualifying ‘quasi’ is implicit with confession that all
recognized classifications have broken down, and ‘quasi’ is a smooth cover
which we draw over our confusion as we might use a counterpane to conceal
a disordered bed (FTC v. Ruberoid at 487 – 488).

He is referring here of course, to the nuanced definitions of administrative
agencies as “quasi” judicial or “quasi” legislative.
The modern era of separation of powers doctrine begins with Youngstown
Steel and Tube Co. v. Sawyer, 343 U.S. 579 (1952), more commonly referred to as
The Steel Seizure Case. At the time of the Korean War, President Truman, citing
his authority under the War Powers, sought to avert a strike by steel workers in the
nation’s major steel mills. He directed his Secretary of Commerce via executive
order, to seize the steel mills and operate them under federal management. Congress
was not appraised of this decision nor was their consent sought (Rudko 1988). The

105
Justices Vinson, Minton, Reed, Burton, Black and Clark in the majority. Justices Jackson and
Douglas dissenting. Justice Frankfurter did not participate.

147
steel companies brought action, seeking an injunction against the executive order. In
a 6 - 3 decision, the Vinson court struck down the executive order, ruling that the
President had exceeded his authority and could not seize steel mills without
Congressional authorization. The Court stated that the President cannot use War
Powers in peace time and noted that Congress had had the opportunity to provide
legislation for this situation, but had specifically decided against providing the
President with just such powers.
106
The executive order, therefore, was an
unconstitutional exercise of lawmaking authority. Four of the six justices in the
majority wrote separate concurring opinions, making it difficult to derive a standard
doctrine from the case. As Neustadt points out, “… a Supreme Court Majority
upheld the district judge with a set of opinions so diverse as to establish nothing but
the outcome” (1990, 16).
Executive orders are a source of law only when they draw upon the
constitutional powers of the President or powers expressly delegated by Congress.
Actions that exceed these bounds have been struck down by courts (Fisher 1978,
132). The major example is the Steel Seizure Case of 1952, which held that

106
In Dames and Moore v. Regan, 453 U.S. 654 (1981) the Court established the doctrine of implied
acquiescence by Congress. If the Congress has never explicitly delegated authority to the President,
yet has had a long history of acquiescing to similar presidential conduct, then the president has in
fact not exceeded his authority. In Youngstown, Congress had considered the specific power in
contention and had refused to grant the President such power. The doctrine of implied
acquiescence has been used to grant the Executive added authority in Foreign Relations, an area of
executive power not addressed in this discussion. In contrast, the domestic policy concerns of
Youngstown were found not to warrant such an expansion of executive power.

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President Truman’s attempt to seize the steel mills of the nation had no basis in
statute or in the Constitution.
In an era generally dominated by insecurity, 1952 was a peak of frustration
and bitterness on the American scene. The Korean War was entering its
third year, 128,000 casualties had been spent, and the end was nowhere in
sight…. As the war continued to unsettle the domestic economy – producing
an unpopular draft, uneven wage and price controls, and a mounting
inflation – the limited-war effort came under severe attack. Yet extending
the war in space or weapons was opposed by our Allies, by most of our
military leaders, and by much of the American public as well. …With our
foreign policy tied in this Gordian knot, frustrations poured into the
domestic debates, particularly on the issue of loyalty and internal
security…From hundreds of Republican orators came the charge that
Democrats could not be trusted to safeguard the nation from Communist
agents, a challenge which added bitters to the already tart cup of political
discourse (Westin 1958, 1).

On the political front, 1952 featured a running battle between the Fair Deal
Democratic Administration of President Harry Truman and a Congress firmly
controlled by a Republican-Southern Democratic coalition. More of Truman’s
domestic legislative proposals were rejected by Congress in 1952 than in any
previous year of his tenure.
107
…Even Truman’s announcement in March that he
would not be a candidate for re-election failed to sweeten executive-legislative
relations. President Truman left no doubt that he considered “his record” to be the
issue at the upcoming presidential contest, thus providing a characterization that
Republican Congressman rushed to second, and Southern Democrats saw as a
continued threat to their position within the party. Economic-group lines duplicated
this division. Big Labor was a happily committed to the party of the “Little Warrior”

107
Congress expressed its disapproval of Truman’s legislative proposals on issues of Tidelands oil,
immigration policies, wage and price policies, and reorganization of executive agencies (Westin
1958, 2).

149
of 1948, while Big Business was determined to leave no check unsigned in the effort
to place a Republican on Pennsylvania Avenue (Westin 1958, 1 – 2).
One product of these varied tensions was widespread labor unrest. More
strikes took place in 1952 than in any year since 1946. Three and one half million
workers left their jobs in industries such as coal, construction, petroleum, telegraph,
and maritime, with cries from each side that the other would have to bear the stain of
Korean casualties on its palms. The most serious labor dispute of 1952 took place in
the nation’s most important and strategic industry – steel.
Justice Black wrote the majority opinion. President Truman’s Executive
Order 10340 directing the Secretary of commerce Charles Sawyer, to seize control of
the steel plants to avert a strike had been enjoined by the United States District Court
Judge in Washington, DC. The Supreme Court affirmed and Justice Black delivered
the opinion for the Court. Black’s opinion of two and one-half pages dealt primarily
with the authority of the executive to issue such an order. Black found no legislative
authorization for the order, noting in the legislative history of the Taft-Hartley Act
that Congress specifically “rejected an amendment which would have authorized
such governmental seizures in cases of emergency.”
He then turned to the Constitution for authorization of presidential power
“implied from the aggregate of his powers under the Constitution.” Black found no
such implication from the grant of executive power or military power. He analyzed
the order and found it was cast in legislative form, “like a statute,” and was

150
legislative in substance. The order, thus deemed legislative, constitutionally could
not be authorized as only Congress could legislate. The order could not stand as an
exercise of constitutionally granted power.
Black’s method was to look directly to the Constitution for authorization for
the order. It was a direct and simple approach to determine if there was
constitutional authority for the Executive Order. The result was a head-on collision
between the two branches. The judiciary said “no” to the executive and judiciary
prevailed. This was judicial activism in motion.
Frankfurter wrote a concurring opinion of approximately thirty-nine pages
with appendices. He began with an historical review of the powers of the judiciary
and found that “[t]he Framers did not make the judiciary the overseer of our
government.” He described the Court’s duty to exercise “due regard for the
implications of the distribution of powers,” noted the restraint rule of the
constitutional interpretation – “not to pass on a constitutional issue at all … if the
case may be decided without considering delicate problems of power under the
Constitution,” and concluded that the issue in the case could be and should be
resolved without an inquiry into the powers of the Presidency. Frankfurter chided
the majority,
To start with a consideration of the relation between the President’s powers
and those of Congress, a most delicate matter that has occupied the thoughts
of statesmen and judges since the Nation was founded and will continue to
occupy their thoughts as long as our democracy lasts – is to start at the
wrong end.

151
Frankfurter reviewed the history of presidential use of seizure power. He
deemed it
…an inadmissibly narrow conception of American Constitutional law to
confine it to the words of the Constitution and to disregard the gloss which
life ha[d] written upon them.

Although he concurred in the holding, Justice Frankfurter expressed
reluctance: “The judiciary may, as this case proves, have to intervene … but in doing
so, we should be wary and humble.” The task was an unpleasant duty for him. He
compared President Truman to President Washington expressing regret for the
Court’s inability to give advisory opinions.
The Court in its language acknowledges its functionalist approach.
While the Constitution diffuses power the better to secure liberty, it also
contemplates that practice will integrate the dispersed powers into a
workable government. It enjoins upon its branches separateness but
interdependence, autonomy but reciprocity. (Youngstown at 635).

Truman’s conception of the judicial function created the expectation that his
appointees’ performances would be “judicial,” which to Truman meant deferential
and non-active. He expressed this conception in his admonition to Burton to “find
the law” and to “stop making the law up there.” (Marquardt, 58-59). The
assumption that judges do not make law, but are only oracles who find the law was
characteristic of earlier concepts of the judicial function. The idea of the judge as
oracle was largely replaced by the twentieth century by widespread acknowledgment
that judges are indeed lawmakers. The fact that Truman’s idea of the oracular
judicial function was held in the 1940s showed continuity and overlapping of the two

152
concepts. It also represented his reaction to other pre-1937 Court which actively
thwarted legislation which he favored. Even among those who admit to a legitimate
ingredient of lawmaking in the judicial function, there is often the understanding that
it should be restrained. Truman expressed his concern that his appointees should not
be legislative. He believed in a limited judiciary and he expected his appointees to
defer to the legislative and executive branches.
Although they shared friendship and a common belief in the limited function
of the judiciary, the appointees’ decisions on particular cases sometimes
disappointed Truman and he was, more generally, frustrated by their inability to
unify the Court. In a 1949 letter to Richard M. Duncan, United States District Judge,
he expressed his general concerns, “It looks as if the Supreme Court has really made
a mess of itself … you can’t run an organization of everyone dissents.” His greatest
disappointment resulted for the decision in the Steel Seizure Case. In an unmailed
letter to Justice William O. Douglas, shortly after that decision, he unburdened his
anger,
I am sorry that I didn’t have an opportunity to discuss precedents with you
before you came to the conclusion you did on that crazy decision that has
tied up the country … There was no decision by the majority although there
were seven opinions against what was best for the country. I don’t see how
a Court made up of so-called liberals could do what the Court did to me.

Years later in a lecture at Columbia University, Truman wryly observed that
“packing the Supreme Court simply can’t be done … I’ve tried and it won’t work…

153
Whenever you put a man on the Supreme Court, he ceases to be your friend. I’m
sure of that.” The Truman appointees split evenly in the Steel Seizure Case.
In United States v. Reynolds, 345 U.S. 1 (1953), an airplane carrying several
military personnel and several civilians crashed while conducting tests of "secret
electronic equipment." The widows of the three civilians killed sued and asked for
full disclosure of the Air Force’s accident investigation report. The report included
information pertaining to the secret electronic equipment. The Air Force refused to
provide the information, saying that to do so would threaten national security.
Absent the report, the District Court and Court of Appeals viewed the question of
negligence in the widow's favor and ruled for the plaintiffs. The issue at hand was if
the government invokes privilege to withhold information in civil proceedings, must
the trial court view the point on which evidence is withheld in the plaintiff's favor?
In a 6 – 3 opinion by Chief Justice Fred Vinson, the Court
108
held that cause for
privilege must be reasonably demonstrated. As a result, the government may
withhold information for reasons of national security even when that information is
vital to the plaintiff's case. On remand, the plaintiffs lost.

IV. Testing The Models
A. The Attitudinal Model
As discussed in the Introduction Chapter, the attitudinal model attempts to
debunk the legal model by equating pre-existing political and ideological attitudes of

108
Vinson 3

154
Supreme Court Justices with the eventual outcome of their judicial decision making.
Nowhere is that attempt more clear, and quite frankly, more successful then the
development and application of the Segal/Cover Scale (Segal and Cover 1989; Segal,
Epstein, Cameron and Spaeth 1995; Epstein and Segal 2005; 109 – 111). First
published in 1989, the Segal Cover Scale measures the relative liberalism or
conservatism of United States Supreme Court Justices. The scores are based on
extensive analysis of newspaper editorials discussing the nomination of each justice.
The key to the Segal Cover Ideological Value as opposed to other methods of
judicial attitude measurement
109
is that by not basing the analysis on judicial rulings
or opinions, it is the most relatively exogenous value of ideology. In other words, if
the attitudinal model places most emphasis on beliefs held off the bench, the Segal
Cover Scale should give us the best numbers. The Scale itself is quite simple.
Ranging from – 1 (the most conservative) to + 1 (the most liberal),
110
all justices of
the Vinson Court are listed below in Table 2.

109
For example, in The Judicial Mind Revisited, Glendon Schubert (1974) developed ideological
scales of United States Supreme Court Justices based on scores derived from factor analyses and
multidimensional scaling of the votes of justices in nonunanimous cases in the areas of civil
liberties and economic liberties (Epstein, Segal, Spaeth and Walker 2003, 485).
110
In 1996, Lee Epstein and Carol Mershon adjusted the numbers by adding one and dividing by two
to remove the negative signs (Epstein and Mershon 1996, 269). This method has since been
adopted by many. I have chosen in this study to retain Segal and Cover’s original values. As late
as 2003, Prof. Segal still chose to report his findings in the original – 1 to + 1 form.

155
Table 2. Segal Cover Ideological Values of Justices of the Vinson Court
111

Segal/
Cover
Black .75
Reed .45
Frankfurter .33
Douglas .46
Jackson 1.00
Burton -.44
Vinson .50
Clark .00
Minton .44
Rutledge 1.00
Murphy 1.00

From Table 2, it is evident that the Vinson Court was a moderately liberal,
especially by modern standards. Furthermore, all but Justice Burton fall on the
positive spectrum of the scale. This unanimity in ideology would predict a similar
unanimity in decision making. We will see shortly that it does not. In fact, out of all
the courts examined in this study – the Vinson Court produced the highest
percentage of nonunanimous separation of powers decisions: 1/9 or just 11%.
There were three natural courts in the Vinson era and Table 3 below lists
their average Segal/Cover Ideological Value. Derived from a simple arithmetic
mean of the Justices’ Segal/Cover Values, the Court’s average value will be used to
compare their estimated preferences to other branches of government.

111
As found in the Supreme Court Compendium (Epstein, Segal, Spaeth and Walker 2003, 485).

156

Table 3. Average Segal/Cover Ideological Values of Natural Courts of the Vinson Era

Natural Court

Segal/
Cover
Vinson 1 0.56
Vinson 2 0.45
Vinson 3 0.38

Table 4 shows the results of an attitudinal analysis of separation of powers
cases in the Vinson Era. The justices are listed, along with their corresponding
Segal/Cover value in order of appointment, beginning with Justice Black and ending
with Justice Minton.
The attitudinal model cannot correctly predict any of the outcomes addressed
in this study. The correlation between ideology and the voting patterns of Justices in
separation of powers cases is non-existent. What we are confronting here are the
inherent methodological problems in the application of the attitudinal model to
separation of powers cases. First, as is evidenced by the extremely low voting
correlations between justices of similar ideology and high voting correlation between
justices of differing ideology, it is nearly impossible in any given dispute between
two branches of government, to define the “liberal” or “conservative” preference.
112

112
In contrast, most other areas of law are easily defined by the conservative and liberal moniker.
Even when conservatives and liberals share a certain value, (i.e. freedom of speech as a

157
Table 5 breaks down the correlation rate for the Justices of the Vinson Court in
Separation of Powers cases. The top number is the percentage of agreement and the
bottom number in parentheses is the number of separation of powers cases during the
Vinson Court on which the two justices ruled together.
There are no established, consistent positions on the conservative or liberal
ideal of separation of powers. Because one cannot accurately define liberal or
conservative behavior in these instances, it is not clear how an attitudinalist would
predict the particular behavior of a particular justice in any of these cases. The most
striking thing about this analysis is the degree to which Justices who generally share
ideology values differ when it comes to separation of powers jurisprudence. This is
in stark contrast for example to the Rehnquist Court, who were ideologically
heterogeneous but voted unanimously almost 50% of the time in separation of
powers cases – and justices of widely varying ideology went on to agree even more
than that.
113

Short of arbitrarily assigning liberal and conservative tags on each side of an
issue, the attitudinal model could be only applied by assuming that a Justice voting
her preferences could mean ruling in favor of the branch of government that shares
her values. In other words, the only effective way a Justice’s policy preference could
manifest itself in separation of powers context, would be if she ruled in favor of the

fundamental right), they will likely disagree about context (i.e. pornography), form (i.e. flag
burning) and competing interests (i.e. national security).
113
Justices Thurgood Marshall (Segal/Cover 1.00) and Chief Justice Rehnquist (Segal/Cover -.91)
agreed 100% of the time in separation of powers cases during the Rehnquist Court. Please see
Chapter 5 for a complete analysis.

158
branch of government most closely associated with her philosophy. Still, even that
approach does not produce an expected value. The strategic model, as discussed
below, attempts to use just such an analysis and yields equally unconvincing results.
The second methodological handicap of the attitudinal model is its exclusive reliance
on exogenous preferences, thus, negating from consideration, the endogenous
institutional preferences that could more fully explain the revealed voting patterns.
A discussion of the new institutionalism, below, reveals a more coherent explanation
of judicial behavior in separation of powers cases based on internalized institutional
preferences. In short, separation of powers issues resist exogenous preference
modeling and simply do not conform to attitudinal theories of judicial behavior.

159
Table 4. Attitudinal Analysis of Separation of Powers Cases in the Vinson Court: 1946 – 1953

Segal/
Cover
U.S. ex. Rel.
Tennessee
Valley Auth.
(1946)
8 – 0
United Public
Workers v.
Mitchell
(1947)
5 – 2
United Mine
Workers
(1947)
5 - 4
C. & S.
Airlines v.
Waterman
(1948)
5 – 4
Tidewater
(1949)

5 – 4
Joint
Anti-
Fascist
(1951)
5 – 3
FTC v.
Ruberoid
(1952)

6 – 2
Youngstown
(1952)

6 – 3
Reynolds
(1953)

6 – 3
Black .75 J/e j/E J/c c/E C/j J/e E/j C/e j/E
Reed .45 J/e E/j J/c c/E j/C e/J E/j e/C E/j
Frankfurter .33 J/e E/j c/J E/c j/C J/e n/p C/e j/E
Douglas .46 J/e j/E J/c c/E j/C J/e j/E C/e E/j
Jackson 1.00 n/p n/p c/J E/c C/j J/e j/E C/e j/E
Burton -.44 J/e E/j J/c E/c C/j J/e E/j C/e E/j
Vinson .50 J/e E/j J/c E/c j/C e/J E/j e/C E/j
Rutledge 1.00 J/e E/j c/J c/E C/j
Murphy 1.00 J/e n/p c/J E/c C/j
Clark .00 n/p E/j C/e E/j
Minton .44 e/J E/j e/C E/j

160
Table 5. Voting Correlation Rates for Justices of the Vinson Court in Separation of Powers Cases: 1946 – 1953

Black Reed Frankfurter Douglas Jackson Burton Vinson Rutledge Murphy Clark Minton
Black

*
55.5
(9)
50
(8)
66.6
(9)
57.1
(7)
66.6
(9)
33.3
(9)
60
(5)
50
(4)
66
(3)
25
(4)
Reed 55.5
(9)

*
37.5
(8)
55.5
(9)
0
(7)
55.5
(9)
88.8
(9)
60
(5)
25
(4)
66.6
(3)
100
(4)
Frankfurter 50
(8)
37.5
(8)

*
50
(8)
83.3
(6)
62.5
(8)
50
(8)
60
(5)
75
(4)
50
(2)
0
(3)
Douglas 66.6
(9)
55.5
(9)
50
(8)

*
42.8
(7)
55.5
(9)
44.4
(9)
40
(5)
25
(4)
66.6
(3)
25
(4)
Jackson

57.1
(7)
0
(7)
83.3
(6)
42.8
(7)

*
57.1
(7)
14.2
(7)
66.6
(3)
100
(3)
33.3
(3)
0
(4)
Burton

66.6
(9)
55.5
(9)
62.5
(8)
55.5
(9)
57.1
(7)

*
66.6
(9)
60
(5)
75
(4)
100
(3)
50
(4)
Vinson

33.3
(9)
88.8
(9)
50
(8)
44.4
(9)
14.2
(7)
66.6
(9)

*
40
(5)
50
(4)
66.6
(3)
100
(4)
Rutledge 60
(5)
60
(5)
60
(5)
40
(5)
66.6
(3)
60
(5)
40
(5)

*
50
(4)
x x
Murphy 50
(4)
25
(4)
75
(4)
25
(4)
100
(3)
75
(4)
50
(4)
50
(4)

*
x x
Clark

66
(3)
66.6
(3)
50
(2)
66.6
(3)
33.3
(3)
100
(3)
66.6
(3)
x x
*
66.6
(3)
Minton

25
(4)
100
(4)
0
(3)
25
(4)
0
(4)
50
(4)
100
(4)
x x 66.6
(3)
*

161
B. The Strategic Model
If the attitudinal model is not sufficient, can we then improve our results by
adding a strategic component? In “Designing Tests of the Supreme Court and the
Separation of Powers,” Brian R. Sala and James F. Spriggs, II (2004) try to establish
whether the judicial voting model can be improved by considering the strategic
implications of supreme court decisions (i.e. the subsequent behavior of legislative or
executive branches, potentially leading to the overturning, modification or
circumvention of the decision). The authors reach a negative conclusion in that they
found no improvement of the model results from strategic consideration. Below, I
have devised a diagram to explain the construction of their inquiry into judicial
voting patterns in separation of powers cases.

Figure 3. Diagram Representation of Sala and Spriggs (2004) Study

Q (uphold) R (overturn)
SC Vote
The Attitudinalist Game (no consideration is
given to strategic implications of decisions)
Q (uphold) R (overturn)
SC Vote
Expanded model (consideration is given to
strategic implications of decisions)
Legislative
bargaining
outcome given
Q
Legislative
bargaining
outcome given
R

162
Specifically, they break their results into three categories. First, the authors
determine that the attitudinal model is weak, but that adding a strategic consideration
of the legislative bargains resulting from Supreme Court decisions does not improve
outcomes. Second, the weakness of the model may stem from its single
dimensionality (conservative vs. liberal). Future numerical analysis research is
likely to explore additional dimensions and the authors point to institutional power as
a good candidate variable for consideration.
Third, the authors identify at least three future directions for research, all of
which appear to favor the identification of new dimensions guiding judicial behavior
that are orthogonal (independent of) the conservative/liberal axis. They are 1.
strategic behavior at the certiorari stage; 2. the need to go beyond the
conservative/liberal paradigm in light of the evidence that the space of alternatives is
not one-dimensional; and 3. exploration of the non-spatial considerations that
condition separation of powers cases (206). These three identified future directions
are key to this analysis, because the seem to forecast a need for considerations of
inputs specific to an institutional analysis of separation of powers voting behavior –
specifically, concepts of jurisprudential regimes, mission and institutional
maintenance.
The conclusion of Sala and Spriggs is clear: The world is not one
dimensional (conservative vs. liberal). It is at least two dimensional and institutional
preference is an excellent candidate to be that additional dimension.

163
Sala and Spriggs’ result are entirely consistent with the results of this study.
In analyzing a strategic model of the Vinson Court’s separation of powers voting, the
results indicate a lack of predictive ability.
The two most common methods of applying the strategic model to judicial
decision making are Eskridge scales and game theoretics, however for purposes of
this discussion, I examined the political affiliation of competing branches of
government and attempted to assess the Court’s position relative to that affiliation.
114

Table 6 shows the results of a strategic analysis of judicial behavior in the cases at
hand. We begin with an average Segal/Cover number which tells us how the court
would presumably act were it not constrained.
115
Then, by identifying the ruling
parties within Congress and the Executive Branches, I tried to identify any active
constraints on judicial behavior. The results indicate that the strategic model
accurately predicts 6 out of the 9 outcomes. This 66.66% correlation rate lead to the
conclusion that while no predictable political constraints are imposed by the political
system upon the decision making of the Supreme Court in separation of powers
cases, there were clearly some constraints at play here.

114
The examination of more detailed political preferences of Congress and the Presidency through
records of the relevant Congressional Committee, detailed Congressional membership and
Executive branch regulations is ripe for research and conversion to more traditional representations
of the Strategic Model.
115
This Segal/Cover average has been independently derived for this study by calculating the simple
arithmetic mean of the ruling Justices’ Segal/Cover values.

164
Table 6. Strategic Model of Separation of Powers Cases in the Vinson Court

PresidentHouse Senate
Supreme Court
Segal/Cover
Average

Expected
Outcome
Actual
Outcome

US ex. rel. Tennessee
Valley Authority

Democrat

Democrat

Democrat

0.51

e/J

J/e

United Public Workers

Democrat Rep. Rep. 0.44 E/j E/j

United Mine Workers

Democrat Rep. Rep. 0.56 J/c J/c

C & S Air Lines (1948)

Democrat Rep. Rep. 0.56 E/c E/c

Tidewater (1949)

DemocratDemocratDemocrat 0.56 C/j C/j

Joint Anti-Fascist
(1951)

Democrat Democrat Democrat 0.50 e/J J/e

Ruberoid (1952)

Democrat Democrat Democrat 0.40 E/j E/j

Youngstown (1952)

Democrat Democrat Democrat 0.38
Cannot
Predict
C/e

Reynolds (1953)

Democrat Rep. Rep. 0.38 E/j E/j

Key: D = Democrats R = Republican C = Congress J = Judiciary
E = Executive
C/e = Court sided with Congress in dispute between Congress and Executive
Boldface = Strategic Model correctly predicts outcome

C. Regime (Ruling Coalition) Theory
The results indicate that the ruling coalition theory is unable to make any
prediction in three out of nine cases, and only correctly predicts three of the
remaining cases, for an overall correlation rate of 33.33%. The limitations of this

165
approach in separation of powers cases are similar to the fundamental problem
encountered with both the attitudinal and strategic models. All three approaches
look to exogenous factors in determining judicial decision making instead of
focusing on the endogenous principles which guide the Justices.
A ruling coalition theory of judicial decision making constructs the Court as a
member of the political regime. Justices act as rulers within the political regime and
as such, make decisions which best preserve the stability of the overall system. This
type of systems analysis also allows for the internalization of the preferences of the
Congress and the Executive.
116
In other words, congressional and presidential
influence in decision making is not looked upon as a constraint, as viewed in the
strategic model, but as part of an overall systemic force. This type of analysis is
especially helpful in explaining why the Court ruled as it did in Tidewater, Ruberoid
and Reynolds, and why, for example administrative agencies are allowed to function
with such broad monopolizations of power.
117

An essential byproduct of the Court’s allegiance with the ruling coalition is
the legitimization of the entire regime, of which the Court is a member (Shapiro
1981, 22-24). This legitimization function most commonly requires the Court to rule
in favor of the ruling elites. However, Shamir (1990) and others have suggested that
the Court will sometimes rule against the ruling coalition on minor matters that the

116
Table 9 at the end of Chapter 1 has the complete breakdown of party membership in the House and
the Senate for each of the cases in this study.
117
Posner has suggested that efficiency is the primary argument for the court’s acquiescence on the de
facto unconstitutional fourth branch of government.

166
Court doesn’t really care about, just so that its allegiance to the ruling coalition is not
patently obvious. We can distinguish separation of powers cases from that scenario
in two ways: first, the Court has fairly consistently ruled against the ruling coalition
(not just once in a while) and second, these separation of powers cases resulted in
landmark rulings, in other words there is every reason to believe that the Court did
care a great deal about their outcome.
It is important at this point to distinguish between the potential types of
legitimization the Court’s rulings may provide. First there is the legitimization of the
political system, which generally means ruling in favor of the ruling coalition (Dahl
1957). However, as this study shows, it is not the case in separation of powers
issues. Second, there is the legitimization of the constitution which leads to the
preeminence of the rule of law. This adherence to fundamental constitutional
principles is not part of the ruling coalition theory and indeed, negates its basic
tenant. Because one comes to an “either/or” situation, that is, either the Court rules
in favor of the ruling coalition or it follows the rule of law, we are put in the
uncomfortable position of defending a weak hypothesis. The rule of law, on its own,
is certainly problematic and can be too easily dismissed through legal analysis of
separation of powers cases and the seeming disparity among them.
118
While neither
of these traditionally articulated types of legitimization are sufficient to explain the

118
For example, recall the Court’s development (without regard to case law or constitutional
principles) of inferior versus principal executive officers in order to justify its contradictory rulings
in Buckley and Morrison.

167
behavior of the Court in separation of powers cases, the defense of the constitutional
system most accurately describes the Court’s behavior. What is needed is an
institutional construct in which the rule of law is part of a larger construct of the
Court’s mission and goals.
One can summarize the problems of applying a ruling coalitions analysis to
separation of powers cases in the following manner: 1) The Court appears to have a
self-interested role not normally recognized by regime theorists. That is, in
separation of powers cases, the Court protects the judiciary against any and all
coalitions, ruling or otherwise. 2) The Court must decide between ruling elites, not
between rulers and non-rulers, thus there is no clear cut indication as to which way it
should rule, unless there is an overwhelming 2/3 coalition in the Congress. None of
the cases at hand presented the court with such a majority in Congress. When ruling
coalitions divide on an issue, it is no longer clear as to which faction constitutes the
effective ruling coalition; in other words the ruling coalition becomes very difficult
to identify.
119
3) When ruling coalitions divide over an issue, the Court steps in and
makes decisions which have, as their underlying. logic something other than
supporting ruling elites. They appear to have a more fundamental constitutional and
jurisprudential foundation for their decisions.

119
No straight party majorities existed during the periods of 1947 - 1949 and 1953 - 1955.

168
Table 7. Ruling Coalitions Analysis of Vinson Court Separation of Powers Cases

President

House Senate
Two-Thirds
Majority in
Congress?
Expected
Outcome
Actual
Outcome

US ex. rel. Tennessee Valley Authority

D D D No E/j J/e

United Public Workers

D R R No
Cannot
Predict
E/j

United Mine Workers

D R R No
Cannot
Predict
J/c

C & S Air Lines (1948)

D R R No
Cannot
Predict
E/c

Tidewater (1949)

D D D No C/j C/j

Joint Anti-Fascist (1951)

D D D No E/j J/e

Ruberoid (1952)

D D D No E/j E/j

Youngstown (1952)

D D D No E/c C/e

Reynolds (1953)

D

R R No E/j E/j

Key: D = Democrats R = Republican C = Congress J = Judiciary
E = Executive
C/e = Court sided with Congress in dispute between Congress and Executive
Boldface = Ruling Coalition Model correctly predicted outcome
Cannot Predict = The dispute is not with the dominant coalition and/or the
dominant coalition is not clear

D. The Historical New Institutionalism
Figure 4 is a historical new institutionalist decision tree, establishing a series
of four questions which encompass the ideas of jurisprudential regimes, institutional
maintenance and the mission of the Court. By placing the queries in their specific
order, the chart shows the relative importance of each institutional construct in

169
relation to separation of powers cases. At each point of the decision tree, a “yes”
answer results in the expected opinion of the court from an institutionalist
perspective. A “no” answer leads to the next question and so on, until a “yes”
answer is reached. If none of the queries along the decision tree address the issue at
hand, than the model fails to predict any outcome.
The cases listed in bold type have been correctly analyzed by the decision
tree. The cases in regular typeface are placed where the decision tree would have
predicted but is not how the case was actually decided. In other words, it represents
a “wrong” answer.

170
Figure 4. Historical New Institutionalist Decision Tree for Vinson Separation of
Powers Cases: 1946 – 1953

That branch will likely preserve
power without encroachment.
Yes
Yes
Yes
Is there an explicit
textual (i.e.
constitutional) basis of
power for one of the
branches?
Is the Judiciary
involved in the
dispute?
Is the Court being
asked to disrupt an
established power
arrangement?
Is the Court being
asked to legitimize a
new expansion of
power?
Court will refuse new expansion
of power.
Maintain or even expand judicial
power.
Do not interfere with the
established power arrangement.
Yes
No
No
No
No
Cannot predict
Jurisprudential
Regimes
Institutional
Maintenance

Mission of Court
Separation of Powers
case
UPW v. Mitchell
C.&S. Airlines
Tidewater

UMW
TVA v. Welch
McGrath
Reynolds
FTC v. Ruberoid

Youngstown

171

Here the Historical New Institutionalist Model correctly explains seven of the
nine cases at hand or 78%. United Public Workers v. Mitchell, Chicago and
Southern Air Lines v. Waterman and National Mutual Insurance v. Tidewater never
make it pas the first branch of the decision tree simply because their rulings rest on
fairly unambiguous contextual readings of the constitution. In each case, the
constitution either clearly delineates a power such as the case and controversy
requirement for jurisdiction in Mitchell. The question in Joint Anti-Fascist Refugee
Committee v. McGrath, United States v. United Mine Workers of America and
United States ex. re. Tennessee Valley Authority v. Welch was simple from an
Institutional perspective – given a lack of a specific textual edict to the contrary,
would the judiciary protect and even expand its own realm. In these cases, the
answer was clearly yes. The clearest attempt at expansion of power occurred in
Youngstown, where a court greatly in line with the Executive, nevertheless did not
hesitate to strike down this unprecedented power grab by the President. It fails to
correctly predict the ruling in United States v. Reynolds and Federal Trade
Commission v. Ruberoid, where the Court rules against its own sphere of power.
Beyond attitudes and strategies, the New Historical Institutionalism invites a
new way of thinking about separation of powers cases and judicial behavior. One
change of thinking can be categorized as “finite versus infinite games.” Simply put,
the strategic and regime models look at every case as a finite “game,” with winners

172
and losers along the way. An institutional perspective and the recognition of the
importance of the long-term mission of the court, makes clear that games are in fact
infinite. Elections and sports are finite; the battle over constitutional powers is
infinite. As the court engages in these constitutional contests, it is seeking not only
to effectuate its institutional mission, but to also improve the playing field for future
contests – slowly pushing the jurisprudence in its desired direction.
This perspective of the “unending season” of constitutional contests
introduces a second important outcome of the institutional perspective – long term
versus short term thinking. While the other institutions, by nature of their political
control are programmed for short term gains, the institutional mission of the court
gives justices a long term perspective beyond even their own tenure. Commensurate
with this long term timeline is a phase shift in thinking. Long term thinking is tailor
made for the institutional perspective. Long term thinking is what allows the
Supreme Court to view itself as an institution rather than just a particular group of
justices. It is also what occasionally allows the Court to think about the nature of
government as a whole rather than just a particular branch – putting aside regime
alliances.
Margaret Thatcher (2002, 16) has written that, “Europe is based on history,
America is based on philosophy.” Historical New Institutionalism gives the
philosophy of Separation of Powers a power that is independent of historical
practice. I posit here that separation of powers is the intersection of finite (current

173
power struggle) and infinite (structure of government) games. Which do the justices
choose? Separation of Powers conflicts force justices to choose between short term
goals/allegiances and long-term stewardship of structure of government. When you
go long-term, one can argue that the justices’ constituencies change. They transition
from serving party and/or ideological affiliation or ruling coalition to serving the
constitution itself and the judicial branch.
Finally, the New Institutionalism trumps strategic models because of one key
factor. Gamesmanship models assume that competitive pressure forces certain kinds
of behavior. One could argue that to a large degree, the United States Supreme
Court has little to no competitive pressure. Unlike legislature and executive who
have overlapping powers – no institution overlaps the United States Supreme Court.
Even, administrative agency courts, which perform a judicial function while under
the executive branch, are still prone to federal review by the Supreme Court.

V. Conclusion

At the conclusion of the analysis of the first Court in this study, a pattern is
already emerging. It is clear that separation of powers cases are simply resistant to
traditional methods of modeling and predicting judicial behavior. The biographies of
the justices and actual analysis of the fact patterns in the cases addressed above show
that the dynamic in separation of powers cases is not attitudinal, strategic, or political
(i.e. regime oriented). Rather, the thrust of separation of powers cases is the balance

174
of power between the very institutions of government itself – regardless of what
political party or ideology happens to be dominant at the time.

175
The Natural Courts of the Vinson Era

June 24, 1946 – October 5, 1953

Vinson 1

June 24, 1946 – August 24, 1949

Members: Vinson (appointed June 24, 1949), Black, Reed, Frankfurter, Douglas,
Murphy (died July 19, 1949), R. Jackson, W. Rutledge, Burton

Vinson 2

August 24, 1949 – October 12, 1949

Members: Vinson, Black, Reed, Frankfurter, Douglas, R. Jackson, W. Rutledge,
(died September 10, 1949), Burton, Clark (appointed August 24,
1949)

Vinson 3

October 12, 1949 – October 5, 1953

Members: Vinson (died September 8, 1953), Black, Reed, Frankfurter, Douglas,
R. Jackson, Burton, Clark, Minton (appointed October 12, 1949)

176
Cases Cited

Chicago and Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103 (1948).

FTC v. Ruberoid Co., 343 U.S. 470 (1952).

Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951).

National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949).

United Public Workers v. Mitchell, 330 U.S. 75 (1947).

United States v. Reynolds, 345 U.S. 1 (1953).

United States v. UMW, 330 U.S. 258 (1947).

United States ex rel. Tennessee Valley Authority v. Welch, 327 U.S. 546 (1946).

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

177
Table 8. Summary of Vinson Court Separation of Powers Cases: 1946 - 1953

Case Branches Holding SOP
Theory
Vote Majority Minori
ty
Presiden
t
Sen. House Court’s
Segal/Cover
Average
United States
ex rel.
Tennessee
Valley
Authority v.
Welch,
327 U.S. 546
March 25,
1946

E and J the Court determined that the
separation of powers doctrine
“would be unduly restricted” if
the state could invoke the police
power to virtually immunize all
takings from judicial review
(TVA at 556 – 557).
Furthermore, the fact that a court
had never struck down a
legislative determination of
public use as unconstitutional
“does not mean that power to
review is wanting” (TVA at 557).

Form. 8 - 0 Black (o)
Reed
Vinson
Frankfurt
er
Rutledge
Burton
Murphy
Douglas

Jackson
n/p
Truman D 57

R 38

Prog. 1
D 242

R 191

Prog. 1

Labor 1

79
th

Cong.
Vinson 1 (-1)

0.51
United Public
Workers v.
Mitchell,
330 U.S. 75
Feb 10, 1947

J and C Despite the chill on political
activity by the Hatch Act of 1940,
the strongly divided court held
that the plaintiffs must wait until
they suffered enforcement action
under the Act. Contingent harms
were viewed as too remote to
support jurisdiction

Form. 5 - 2 Reed (o)
Frankfurt
er
Rutledge
Vinson
Burton

Jackson
n/p
Murphy
n/p
Black
Dougla
s
Truman R 51

D 45
R 246

D 188

Labor 1

80
th

Cong.
Vinson 1 (-2)

0.44

178
Case Branches Holding SOP
Theory
Vote Majority Minori
ty
Presiden
t
Sen. House Court’s
Segal/Cover
Average
United States
v. United
Mine Workers
of America
330 U.S. 258
March 6,
1947

C and J Norris-LaGuardia Acts did not
prevent Court from having
jurisdiction.

Court affirmed the issuance of a
temporary restraining order, a
preliminary injunction, and
contempt judgments against the
United Mine Workers Labor
Union and its leader. It ruled that
the district court had jurisdiction
to issue the injunction and the
restraining order.

5 – 4 Vinson
(o)
Black
Douglas
Reed
Burton
Murph
y
Rutled
ge
Jackso
n
Frankf
urter

Truman R 51

D 45
R 246

D 188

Labor 1

80
th

Cong.
Vinson 1

0.56
Chicago and
Southern Air
Lines v.
Waterman
S.S. Corp.,
333 U.S. 103
Feb. 9, 1948

C and E …intolerable that courts, without
the relevant information, should
review and perhaps nullify
actions of the Executive taken on
information properly held secret.
Nor can courts sit in camera in
order to be taken into executive
confidences. But even if courts
could require full disclosure, the
very nature of executive
decisions as to foreign policy is
political, not judicial (C. & S. Air
Lines 111). Shows great
deference toward presidential
responsibilities in military and
diplomatic matters

5 – 4 Jackson
(o)
Vinson
Murphy
Frankfurt
er
Burton

Dougla
s
Black
Reed
Rutled
ge
Truman R 51

D 45
R 246

D 188

Labor 1

80
th

Cong.
Vinson 1

0.56
Table 8, Continued. Summary of Vinson Court Separation of Powers Cases: 1946 - 1953

179
Case Branches Holding SOP
Theory
Vote Majority Minori
ty
Presiden
t
Sen. House Court’s
Segal/Cover
Average
National
Mutual
Insurance Co.
v. Tidewater
Transfer Co.,
337 U.S. 582
June 20, 1949

C and J dealt with Congressional power
to vest Article III Courts with
non-Article III power. In
Tidewater, the Supreme Court
confronted the question whether
Congress could expand the
jurisdiction of federal courts
beyond the class of cases and
controversies enumerated in
Article III. In three separate
opinions, six Justices reaffirmed
the traditional view that federal
courts are courts of limited
jurisdiction whose judicial
powers are bounded by Article III
(Tidewater at 607).

Jackson
(o)
Black
Burton
Rutledge
Murphy
Frankfurt
er

Vinson
Dougla
s
Reed
Truman D 54

R 42
D 236

R 141

Labor 1

81
st

Cong.
Vinson
Joint Anti-
Fascist
Refugee
Comm. v.
McGrath
341 U.S. 123
April 30,
1951
E and J The Court examined the validity
of the Attorney General’s
designation of certain
organizations as “Communist.”
There was no majority opinion in
the case. “Publicly designating
an organization as within the
proscribed categories of the
Loyalty Order does not directly
deprive anyone of liberty or
property.
Plaintiffs have standing to sue –
the executive order is not a bar to
suit

Burton
Douglas
Black
Frankfurt
er
Jackson

Clark n/p
Reed
Vinson
Minton
Truman D 49

R 47
D 235

R 199

Ind. 1

82
nd

Cong.
Vinson 3
Table 8, Continued. Summary of Vinson Court Separation of Powers Cases: 1946 - 1953

180
Case Branches Holding SOP
Theory
Vote Majority Minori
ty
Presiden
t
Sen. House Court’s
Segal/Cover
Average
FTC v.
Ruberoid Co.,
343 U.S. 470
May 26, 1952
E vs. J Congress has vested in the
Federal Trade Commission the
primary responsibility for
fashioning orders dealing with
Clayton Act violations, and the
courts will not interfere except
where the remedy selected has no
reasonable relation to the
unlawful practices found to exist.
Diss: The mere retreat to the
qualifying ‘quasi’ is implicit with
confession that all recognized
classifications have broken down,
and ‘quasi’ is a smooth cover
which we draw over our
confusion as we might use a
counterpane to conceal a
disordered bed (FTC 487 – 488).

6 – 2 Vinson
Minton
Reed
Burton
Black
Clark

Frankfurt
er n/p
Jackso
n
Dougla
s
Truman D 49

R 47
D 235

R 199

Ind. 1

82
nd

Cong.
Vinson 3
Youngstown
Steel and
Tube Co. v.
Sawyer
343 U.S. 579
(1952)

E and C Struck down seizure of steel mills
by Truman
Form. 6 - 3 Black
Frankfurt
er
Douglas
Jackson
Burton
Clark

Reed
Vinson
Minton
Truman D 49

R 47
D 235

R 199

Ind. 1

82
nd

Cong.

Vinson 3

0.38
Table 8, Continued. Summary of Vinson Court Separation of Powers Cases: 1946 - 1953

181
Case Branches Holding SOP
Theory
Vote Majority Minori
ty
Presiden
t
Sen. House Court’s
Segal/Cover
Average
United States
v. Reynolds
345 U.S. 1
March 9,
1953
E and J the court held that cause for
privilege must be reasonably
demonstrated. As a result, the
government may withhold
information for reasons of
national security even when that
information is vital to the
plaintiff's case.
6 – 3 Vinson
Reed
Douglas
Burton
Clark
Minton
Black
Frankf
urter
Jackso
n
R 48

D 47
R 221

D 213

Ind. 1

83
rd

Cong.
Vinson 3

0.38

Table 8, Continued. Summary of Vinson Court Separation of Powers Cases: 1946 - 1953

182

Chapter 3

The Warren Court:

Individual Liberties and Inter-branch Disputes
1953 – 1969

“…the true seat of authority in the American Republic is the Supreme
Court.”

Arendt, On Revolution (1963, 201)

I. Introduction: Judicial Activism and the Separation of Powers
There is no doubt that the Warren Court provided, in its time, a storm of
controversy. The fundamental question that lay at the bottom of that storm was
much like the great issue that lay beneath the controversy between Thomas Jefferson
and Chief Justice Marshall. What role should the judicial branch play in the
government of the American people? Should the Court play an active, creative role
in shaping our destiny – equal in influence with the executive and legislative
branches, or should the Court be characterized by self-restraint, deferring to the other
branches for policy and new initiatives?
Under Chief Justice Marshall, the Court staked out an active role in
government, building up the power of the federal judiciary and shaping the
relationship between the federal government and the states according to Marshall’s

183
own vision of the emerging Republic. During the New Deal, the Court again
asserted its power by declaring many of the laws on minimum wage, maximum
hours, price regulation, labor relations and consumer protection invalid. In reaction,
there developed a theory of judicial restraint, which sprang from the old Jeffersonian
philosophy but was more sophisticated because it allowed room for judicial review
in a narrow class of cases.
120

The philosophy of self-restraint was buoyed by the new legal realism
121
and
was associated with the names of Brandeis, Holmes, Learned Hand and Felix
Frankfurter. It was so far dominant within the Supreme Court after 1937, that by the
mid-forties, it had hardly any critics. The appointment of Earl Warren as Chief
Justice of the United States marked the beginning of extraordinarily rapid
development in constitutional law, during which the Court broke new ground for the
States and other branches of the federal government. Judicial restraint, by definition,

120
Judicial self-restraint encompasses three points. 1) The Courts should avoid constitutional issues
whenever possible. Such issues should be decided only when raised in litigation by one who’s own
constitutional rights are affected and cannot seek a remedy without a constitutional decision. 2)
The courts should not invalidate laws unless they are inconsistent with some specific constitutional
prohibition. 3) Wherever there is room for a rational difference of opinion upon a question of fact
or upon the relative importance of different facts or conflicting interest (“the relative merits of
different social policies”) the doctrines of federalism and separation of powers would require the
Court to uphold the legislation (Cox 1968; Holland 1994).
121
The influence of legal realism on the judicial restraint school is well illustrated by statements of
Chief Justice Charles Evans Hughes and Harlan Fiske Stone. In 1907 Hughes pronounced, “we are
under a Constitution, but the Constitution is what the judges say it is” (Hughes 1916, 185). The
consequences of the subjective quality of the basic law were spelled out by Stone in 1936, “While
unconstitutional exercise of power by the executive and legislative branches is subject to judicial
restraint, the only check on our own exercise of power is our own sense of self-restraint…Courts
are not the only agency of government that must be assumed to have capacity to govern…For the
removal of unwise laws from the statute books appeal lies no to the courts but to the ballot and the
processes of democratic government” (United States v. Butler, 297 U.S. 1, 78, 88 [1936]).

184
is about holding back. The restraint is a result, in large measure, of the separation of
powers. If we accept the activist narrative of the Warren Court, then we should find
that it had little use for the hyper-formalist interpretation of separation of powers
required by advocates of judicial restraint.
It is important to remember that political liberals were not always champions
of judicial activism. In fact, they were its first critics. Holmes, Frankfurter, and
Louis Brandeis shared the views of activists Warren, William Brennan, and
Thurgood Marshall that constitutional values, like moral values, reflect historical
processes that are continuously transforming American society (Stevens, 337 – 360).
As Philip Kurland reminds us in a lecture entitled “The Tyranny of Labels,”
There is at least one lesson to be derived from the history of the Marshall
and pre-New Deal Courts and that is that the equation cannot be drawn – as
it so frequently is drawn – between “activist” and “liberal” or between
“judicial restraint” and “conservative.” An “activist” Court is essentially
one that is out of step with the legislative or executive branches of
government. It will thus be “liberal” or “conservative” depending upon
which role its prime antagonist has adopted. Certainly the Marshall Court
and the Court of the Nine Old Men were “activist” Courts. Their
appellation in terms of “liberal” and “conservative” is a little harder to draw.
Since the phrases tend to be meaningless except as pejoratives or adulation,
the establishment of such identities is at best useless and at worst misleading
(Kurland 1970, 17 – 18).

The liberal advocates of judicial restraint were legal realists who accepted the
inevitability of progress and the resulting obsolescence of the values of previous
generations. The dispute between Holmes, Brandeis, and Frankfurter, on the one
hand, and the activists of both the right and the left, on the other, was over the role of
judges. Should judges be the beacons of the new directions in which out history was

185
headed? The advocates of restraint in the 1910 – 1940 period believed that
popularly-elected legislatures are likely to be the most progressive public
institution.
122
They believed that the process of competing interests vying for
particular legislative outcomes, resulted in far greater social utility than any policy
choice made by a handful of unaccountable jurists removed from the public and the
swell of social tides.
123
By the 1950s however, the state legislatures and Congress
had lost their reputation for progressivism and were regarded by Warren, Brennan,
and other advanced thinkers as sources of ignorance, repression, and illiberalism
(Holland 1994).
II. The Warren Court
124

For every Court examined in this work, there are already well established and
oft-repeated characteristics attributed to them. For the purposes of analyzing
separation of powers cases, however, the classic nomenclature is, for the most part,

122
Some Justices, such as Justice Taney felt restrained by the Constitution, whose words had an
objective meaning which the Court was bound to observe in cases raising constitutional issues. “In
Taney’s opinion, it was entirely acceptable for a Supreme Court justice to allow the will of the
sovereign expressed in the fundamental law of the Constitution to be thwarted by a fear for the
Court’s fate or a belief that negotiated settlements are superior to declaration of legal right”
(Finesilver 1994, 93 – 94).
123
From the restraint point of view, such an understanding of the Supreme Court’s duty was
dangerous, for it would inevitably produce decisions which the justices thought were dictated by the
language of the Constitution but which would be imprudent with respect to the welfare of either the
country or the Court. Alexander Bickel, an eloquent apologist for judicial self-restraint, counsels
the Court to avoid principled decisions on controversial policy issues (Bickel 1962; 1970). Such
issues, he says, are best resolved by means of compromise. The attempt to do what the Constitution
or justice requires will often divide the nation and lead to a political backlash against the Court.
The Dred Scott case is Bickel’s principal example of the dangers of reaching principled decisions
(Bickel 1965).
124
Justices Black, Reed, Frankfurter, Douglas, Jackson, Burton, Clark and Minton all served on
previous courts, their biographies are covered in Chapter 2.

186
unhelpful in analyzing the Court’s position on the structural arrangement of the three
branches of government. The Warren Court is, of course, most well known for its
civil rights decisions.
125
It is also well studied because of its line-up of stellar
justices.
126

The common sentiment espoused by detractors is that the Warren Court was
an activist body that played the role of a “super legislature.” The critics charge that
the Warren Court advocated position on civil rights and guaranteed freedoms that
were not part of the original intent of the Framers. From the political world, one of
the primary detractors of the Warren Court was Richard Nixon. In the 1968 general
election, Nixon campaigned on a plank of remaking the Court with nominees who
were strict constructionists. Nixon harshly criticized the Warren Court’s decisions
on criminal defendant rights, civil liberties and civil rights. His main attack
concentrated on the activism of the judicial branch. He argued that the role of the
judiciary was strictly to interpret existing law, not to take any initiative in that field.

125
See the desegregation cases: Brown v. Board of Education (1954) and Cooper v. Aaron (1958);
See also, cases applying the protections of the bill of rights to defendants in state courts through the
14
th
amendment: Mapp v. Ohio, 367 U.S. 643 (1961) (4
th
amendment protections against unlawful
searches and seizures). Malloy v. Hogan, 378 U.S. 1 (1964) (5
th
amendment privilege against self-
incrimination). Gideon v. Wainwright, 372 U.S. 335 (1963) (6th amendment right to counsel).
Pointer v. Texas, 380 U.S. 400 (1965) (6
th
amendment right of an accused to confront adverse
witnesses).
126
The Warren Court began on October 5, 1953 with the appointment of Chief Justice Earl Warren.
The Warren Court encompassed 17 Justices in nine natural courts and ended on June 23, 1969.

187
A. Chief Justice Earl E. Warren
Earl Warren was born the son of Norwegian immigrants on March 19, 1891
in Los Angeles and raised in Bakersfield, California. He worked his way though
both an undergraduate and law degree at the University of California at Berkeley.
With the exception of a brief period of time right after law school, Warren spent his
entire career in the public sector, moving from deputy city attorney of Oakland to
district attorney of Alameda County. In 1938 he became state attorney general and
in 1942 he won the California governor’s race. He was twice re-elected to that
position, gaining the Democratic nomination on top of his Republican selection in
1946.
Sparking enmity within some circles to this day was Warren's role during
World War II in orchestrating removal of persons of Japanese descent to internment
camps. In his autobiography, Warren confessed:
I have since deeply regretted the removal order and my own testimony
advocating it, because it was not in keeping with our American concept of
freedom and the rights of citizens. Whenever I thought of the innocent little
children who were torn from home, school friends and congenial
surroundings, I was conscience-stricken (Warren 2001).

Warren was Thomas Dewey’s vice-presidential running mate in 1948 and
supported Dwight Eisenhower at the 1952 Republican Convention after his own
presidential aspirations stalled. That support for Eisenhower and his own enormous
popularity within political circles would give Warren the nomination to the Supreme
Court in 1953. Some, such as Warren's successor as the Governor of California,

188
Goodwin J. Knight, were to relate in later years that Warren’s nomination was
payback for delivering the California to Eisenhower. Regardless of the political
undertones, Warren won easy Senate confirmation.
The year after he became Chief Justice, Warren wrote for a unanimous court
in banning segregation in the nation's schools in the landmark ruling in Brown v.
Board of Education. The Warren Court proceeded to issue a stream of decisions
broadening civil rights. These and other decisions made Warren a target of the right
in the early to mid 1960s. Although Warren had been a vocal anti-Communist as
governor, he was now denounced by the John Birch Society, as a knowing member
of the Communist conspiracy. "Impeach Earl Warren" bumper stickers appeared
across the nation. At one massive and televised anti-Communist rally in Los
Angeles, a speaker shouted that impeachment was too good for Warren — that he
should be hanged. In public statements, Alabama Gov. George Wallace said that
Warren "doesn't have enough brains to try a chicken thief in my home county" and
Senator James O. Eastland, D-Miss., charged that the Warren Court's majority has in
some of its decisions "upheld the position advocated by the Communist Party." In
his memoirs, former President Richard Nixon reflected that the Warren Court
…had been unprecedentedly politically active…Like many political
moderate conservatives, I felt that some Supreme Court Justices were too
often using their own interpretations of the law to remake American society
according to their own social, political and ideological precepts.

In 1963, the "Warren Commission" was formed by President Lyndon
Johnson. Warren headed the effort to determine if the assassination of President John

189
F. Kennedy was something more than a one-man undertaking by Lee Harvey
Oswald. The following year, the commission issued a report that concluded that no
conspiracy existed. The commission's investigation has been assailed through the
years as superficial by those advancing other theories.
Warren resigned from office in June 1969.
127
He died in 1974 at the age of
83.

B. Justice John Marshall Harlan
John Harlan Marshall II, the grandson of Justice John Marshall Harlan (1833
– 1911) was born in Chicago in 1899. His father was a prominent local attorney who
twice unsuccessfully ran for mayor. Harlan was educated at Princeton and was a
Rhodes Scholar at Oxford where he studied law. He received his law degree from
New York Law School and was admitted to the bar in 1925. Harlan spent most of
his early professional life in private practice with a distinguished Wall Street firm
with a few notable forays into the public arena. He was an assistant U.S. attorney
(1925–27), special assistant attorney general of New York State (1928–30), and chief
counsel to the New York State Crime Commission (1951–53) during the
administration of Governor Thomas Dewey. Harlan was a judge of the U.S. Court of

127
In June 1968, Warren announced his intention to resign for health reasons. The idea was that
President Johnson would appoint Warren’s successor before leaving office. The president’s
nomination of Justice Abe Fortas however, hit a snag in the Senate where Republicans and
Southern Democrats sensed that the upcoming election might send Richard Nixon to the White
House. Under a cloud of controversy, the Fortas nomination for Chief Justice was withdrawn (and
eventually he would leave his seat as an associate justice of the Court). Faced with the Fortas
disaster, Warren withdrew his resignation and stayed on the Court until June 1969.

190
Appeals for the Second Circuit for only 10 months from 1954 to 1955, when he was
nominated by Republican President Eisenhower to replace Justice Robert H. Jackson
on the Supreme Court and was confirmed by a Democratic Senate.
Justice John Marshall Harlan was an indispensable component of the Warren
Court. A conservative on the court, he held a narrow view of the court's power,
believing that the judiciary should not interfere in state and local matters, and that
political and social evils should be corrected through the political process and not
through court action; he nevertheless sided with the majority on many civil-rights
cases. He was the intellectual leader of the conservatives on the Court, frequently
dissenting from the liberal activist decisions of the Warren Court. He defended
federalism against centralization of power and he never accepted the idea that the
Fourteenth Amendment somehow incorporated or embraced the Bill of Rights.
Harlan provided a form of counterbalance or resistance to the dominant themes of
the Warren Court (Dorsen 1993). He defined those themes with his dissents and
perhaps clarified them for today’s observers by providing contrasting arguments.
Harlan found himself on the opposite side of decisions regarding political
participation and reapportionment,
128
criminal procedure,
129
and federalism.
130
He

128
Baker v. Carr, 369 U.S. 186 (1962); Reynolds v. Sims, 377 U.S. 533 (1964); Avery v. Midland
County, 390 U.S. 474, 486 (1968) (Harlan, J., dissenting); Hadley v. Junior College District, 397
U.S. 50, 59 (1970) (Harlan, J., dissenting); Harper v. Virginia State Board of Elections, 383 U.S.
663, 680 (1966) (Harlan, J., dissenting); Kramer v. Union Free School District, 395 U.S. 621, 634
(1969) (Harlan, J., joining Stewart, J., dissenting); Oregon v. Mitchell, 400 U.S. 112, 152 (1970)
(Harlan, J., concurring in part and dissenting in part).
129
Mapp v. Ohio, 367 U.S. 643, 672 (1961) (Harlan, J., dissenting); Malloy v. Hogan, 378 U.S. 1, 14
(1964) (Harlan, J., dissenting) (self incrimination); Miranda v. Arizona, 384 U.S. 436, 504 (Harlan,

191
also believed, contrary to the majority, that the court should defer to congressional
judgments, even when they impaired civil liberties.
131
He was, by any measure, a
frequent and regular dissenter.
132
He wrote many opinions that expanded the Court’s
jurisdiction – even in cases where there were substantial justiciability defenses.
133

The separation of powers cases during the Warren era are a bit unusual
because they were often mired in issues of individual liberty. For Harlan, separation
of powers limitations were often the best way to protect individual liberty.
Developing a jurisprudence that closely resembled Frankfurter’s, Harlan
contended that the political processes and principles of federalism and
separation of powers were ultimately more effective safeguards of
individual liberty than constitutional guarantees, although also embracing
the corollary view that judicial construction of the latter should give due
deference to the importance of the former in a free society (Yarbrough 2000,
51).

Although they were often on opposite sides, Justice Hugo Black was Harlan’s
closest friend off the bench. Harlan remained respected by his fellow jurists and
even his opponents for his intellectual rigor, thoroughness and candor. When Justice

J., dissenting); Duncan v. Louisiana, 391 U.S. at 171 (Harlan, J., dissenting); Pointer v. Texas, 380
U.S. 400, 408 (1965) (Harlan, J., concurring in the result) (confrontation); Benton v. Maryland, 395
U.S. 784, 801 (1969) (Harlan, J., dissenting) (double jeopardy).
130
See Katzenbach v. Morgan, 384 U.S. 641, 659 (1966) (Harlan, J., dissenting) and United States v.
Guest, 383 U.S. 745, 762 (1966) (Harlan, J., dissenting).
131
Constitutional right to prevent involuntary denationalization, see: Perez v. v. Brownell, 356 U.S. 44
(1958) (Harlan, J., joining Frankfurter, J., dissenting); Trop v. Dulles, 356 U.S. 86 (1958); Afroyim
v. Rusk, 387 U.S. 253, 268 (1967) (Harlan, J., dissenting); Deportation based on membership in
communist party: Rowoldt v. Perfetto, 355 U.S. 115, 121 (1957) (Harlan J., dissenting); Kent v.
Dulles, 357 U.S. 116 (1958) and Apetheker v. Secretary of State, 378 U.S. 500 (1964)
(constitutional right to travel abroad).
132
Harlan cast an average of 62.6 dissenting votes per term between 1963 and 1967. Harlan remained
for two more terms after the Warren Court ended, a brief period in which he was the leader of the
Court. In contrast to the Warren Court years, Harlan cast only 24 dissenting votes in the 1969 term
and 18 during the 1970 term (Friendly
133
Engel v. Vitale, 370 U.S. 421 (1962) (school prayer); Powell v. McCormack, 395 U.S. 486 (1969)
(see full discussion below).

192
John Marshall Harlan retired in 1971, the Nixon administration chose William H.
Rehnquist as Harlan's replacement.

C. Justice William J. Brennan, Jr.
If Justice Harlan was out of step with the general activism of the Warren
Court, then Justice William J. Brennan was the very definition of it. William
Brennan was born in 1906 in Newark, New Jersey. He was the second of eight
children of Irish immigrant parents. He graduated from the Wharton School of the
University of Pennsylvania with a degree in economics and was awarded a law
degree from Harvard in 1931. Brennan entered private practice in New Jersey and
remained a respected local attorney until he was appointed as a trial judge. He was
elevated to the state’s highest court in 1952. When Associate Justice Sherman
Minton resigned in 1956, President Dwight D. Eisenhower selected Brennan as
Minton’s replacement. Probably not lost on the President, then in the midst of a
reelection campaign, were the political gains to be realized by restoring the Roman
Catholic seat on the Court
134
and appointing a Democrat attractive to the Eastern
Establishment. Later, Eisenhower would publicly admit the appointment was a
mistake, primarily because Brennan proved to be of the most liberal and influential

134
It is interesting to note that when Brennan was first appointed to the Supreme Court, many were
concerned that as a Catholic, Brennan would be primarily concerned with representing and
enforcing the doctrines and morals of the Roman Catholic Church. Not only did this not turn out to
be the case, but guided more by his judicial philosophy than by his Catholicism, Brennan in fact
often outraged Catholics and Catholic leaders with his decisions in cases on issues like school
prayer, abortion, obscenity, birth control, and more.

193
justices on the modern Supreme Court. It is remarkable that a Democrat, appointed
by a Republican during the McCarthy years
135
would come to wield so much
influence for 34 years, first as a builder of majorities during the Warren years and
later as an influential voice of dissent (Abraham 1985, 262 – 265; Friedelbaum 1991,
101 – 102).
Brennan authored important opinions in the areas of free expression, criminal
procedure, and reapportionment. He is considered by many as the central figure of
the Warren Court – and for good reason. As Friedelbaum (1991, 103) so aptly
explains,
That a chief justice, by reason of temperament, ability, or interests, may not
always place his distinctive imprint on the products of the Court over which
he presides is accepted lore. Hugo Black, more than Earl Warren,
influenced judicial developments during the Warren years. Yet because of
Black’s intransigence and insistence on “absolutists” construction of
constitutional language, it often fell to Justice Brennan to serve as an
intermediary between opposing blocs. Brennan, the proponent of pragmatic
liberalism, proved capable of attracting broad-based support from his
colleagues.

Brennan imparted his constitutional vision to a broad coalition of his
colleagues. His great influence stemmed from the fact that Brennan was not always
as liberal as he is commonly portrayed. Analysis of his voting patterns indicates that
he tended to be more moderate than other liberals on the Warren Court (Epstein,
Segal et. al. 2003). He made a conscious effort to frame his decisions in moderate
language which helped him forge a greater consensus among justices on both the left
and the right, leading to him gaining a more prominent role. His positive and friendly

135
Only Joseph McCarthy voted against Brennan’s confirmation.

194
personality also aided him greatly in forging consensus among otherwise disparate
parties - even when the composition of the Court changed and shifted further and
further to the right under Chief Justices Burger and Rehnquist.
For more than three decades, William Brennan participated actively and
effectively on the Court. His long tenure made him the senior justice on the Court
for much of his career and he acted often from this established position of leadership.
Within the moderate and sometimes conservative Burger Court, Brennan was “an
astute and avid advocate who was responsible for an unusual progression of
precedents” (Friedelbaum 1991, 123). Although he was committed to vigorous
central control, especially in the exercise of federal regulatory power, later in his
career, he placed an emphasis on the virtues of state judicial initiatives (Friedelbaum
1991, 122 – 123).
Brennan is clearly one of the most important jurists of the twentieth century,
but just how determinative was his time on the bench? Scholars as illustrious as
Sanford Levinson, Dennis Hutchinson and Robert Post have all argued that the
Warren Court was actually the Brennan Court (Powe 2000, 499). Throughout the
1960s, Brennan voted with the majority a remarkable 96% percent of the time.
Brennan was the Court’s designated hitter. Chief Justice Warren turned to him when
he needed a majority in a difficult case. Brennan could craft an opinion that would
bring other justices on board. The clearest example was Baker v. Carr, where
Brennan was selected to write the historic opinion because he was more likely than

195
anyone else to bring Potter Stewart’s fifth vote along. Those who advocate the
theory of the Brennan Court place their claim on the fact that Brennan both created
the Court’s doctrine and then most often agreed with that result.
Others, such as Lucas Powe (2000), convincingly argue that the notion of a
Brennan Court in lieu of a Warren Court is based on his full 34 year career and not
merely on his thirteen year tenure on the Warren Court. Powe argues,
The claim that the Warren Court was really the “Brennan Court” seems
largely based on reading Brennan’s subsequent career backward or defining
a different era (well past Warren’s retirement)… It is well worth
remembering that in the mid-1960s some commentators were suggesting it
was really “the Black Court” – a claim no one would take seriously today
(2000, 500).

Brennan was a frequent target of those who complain about "judicial
activism," and was accused of invalidating the laws created by democratically
elected officials in favor of his own personal policy preferences. But Brennan’s
devotion and advocacy of such seemingly extra-constitutional values such as the
right to privacy, revealed his belief in the Supreme Court as an instrument of
protection of values and rights against the whims of democratic majorities. His
acceptance of the political role of the Supreme Court and the Justices which served
on it helped shape the Court’s contemporary role (Friedelbaum 1991, 100 – 101).
Brennan ascribed to the view that litigation was a valid political activity and
often the only means by which political minorities could make their views heard.
One of Brennan’s highest priorities was to protect access to federal courts. He feared
the alternative for political minorities was violence. When the Court began moving

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further to the right and less interested in protecting civil liberties against
governmental powers, Brennan found himself more often in dissent. He urged states
court to interpret state constitutions more broadly, thus protecting civil liberties
before cases reached ever more conservative federal courts. This was quite a change
from a time during the Warren years when he fought against states’ rights.
Until his retirement due to health in July 1990, Brennan’s influence
continued, albeit more often in dissent, in a Court less receptive to his emphatic
activism. Brennan died on July 24, 1997 in Arlington, Virginia.

D. Justice Charles Evans Whittaker
Charles Evans Whittaker was born in 1901 in Troy Kansas. He received his
law degree from the Univ. of Kansas City in 1924 and practiced law for many years.
He served as judge of the U.S. District Court for Western Missouri (1954–56) and on
the U.S. Court of Appeals, 8th circuit (1956–57). Justice Stanley Reed’s retirement
in 1957 came at a controversial time for the Supreme Court. After the early civil
rights decisions of the 1950s, the Court was viewed suspiciously by the country and
the political establishment alike. It is surprising therefore that Whittaker’s
nomination sailed through the Senate virtually unnoticed in March of 1957, before
appointment by President Eisenhower to the Supreme Court. As Powe recounts,
With the election behind him, Eisenhower wished to place a Midwestern
Republican on the still Democratic-majority Supreme Court. Brownell
selected Charles Whittaker of Missouri, who, after a successful career as a
corporate lawyer, had already been appointed by Eisenhower to both a
federal district court a court of appeals. Unlike his Brennan nomination,

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Eisenhower had in fact met Whittaker once before the nomination, a pro
forma meeting when Eisenhower appointed him to the court of appeals. The
Senate Judiciary Committee held a quick hearing, and three days later
Whittaker was confirmed without a roll call. Timing may explain the
Senate’s lack of interest. Whittaker was nominated and confirmed in March
and the controversial domestic – security cases started to come down in May
(2000, 102 – 103).

Justice Whittaker would, over the years, develop a reputation for wavering on
the issues. The first major example was the involuntary expatriation cases
136
of the
1957 term, where Whittaker switched his votes three different times (Powe 2000,
137).
Justice Whittaker heeded the advice of his doctors and retired after only five
years in 1962. His retirement rebalanced the court on a number of issues such as
civil rights and the ongoing battle against domestic communism.
137
Important for
our focus here, Whittaker’s resignation came immediately before Baker v. Carr.
Powe describes Whittaker at the time of his resignation as “emotionally exhausted by
the work of the Court…Warren had assigned Whittaker Brown Shoe, and the
complex antitrust case, like so much of the Court’s work, was more than he could
handle” (2000, 205).
Whittaker never achieved any type of comfort level on the bench. He lacked
the doctrinal clarity that was the hallmark of most of the Warren Court. Void of

136
Perez v. Brownell which held that voting in a foreign election results cost citizenship and Trop v.
Dulles holding that desertion during wartime could not be stripped of their citizenship.
137
In Gibson v. Florida Legislative Investigating Committee, Florida attempted to obtain the
membership list of the NAACP to determine whether the organization had been infiltrated by
communists. The conference vote of December 1961, prior to Whittaker’s resignation was 5 – 4 in
favor of Florida. The Whittaker resignation changed the Court’s outcome (Powe 2000, 155 – 156).

198
vision or purpose, Whittaker announced his resignation in late March 1962, after five
painful years.. Upon his retirement, he was succeeded by Byron R. White.

E. Justice Potter Stewart
Potter Stewart was born on January 23, 1915 in Cincinnati, Ohio to a wealthy
Republican family. Potter’s father was a mayor of Cincinnati and justice of the Ohio
Supreme Court. Stewart attended Yale College where he served as the editor of the
Yale Daily News and was class orator. From Yale he went on to Cambridge
University and Yale Law School where he was a comment editor of the Yale Law
Journal (Blasi 1983).
After receiving his law degree in 1941, Stewart practiced for less than a year
with a Wall street firm, then joined the Navy as a deck officer of oil tankers serving
in the Atlantic and Mediterranean. After the war, he joined one of Cincinnati’s
leading law firms. His practice consisted mainly of work for corporate clients, but
he also served as court-appointed counsel for number indigent criminal defendants.
During this period, Stewart was active in civic affairs, winning election to the city
council and serving as a vice-mayor of Cincinnati (Blasi 1983, 250; Powe 2000, 141;
Yarbrough 1991).
In 1954, Stewart was appointed by President Eisenhower to the United States
Court of Appeals for the Sixth Circuit. In his four years on the Circuit Court,
Stewart achieved high acclaim within the legal profession for his careful, technically

199
competent and highly literate opinions (Blasi 1983, 251; Yarbrough 1991). Upon the
retirement of Harold Burton in 1958, Eisenhower once again had an opportunity to
appoint a Supreme Court Justice. He was most anxious not to repeat the Brennan
mistake. When brought the name of Stewart, Eisenhower expressed concern over his
age, only 43, and again stressed that the he wanted a conservative appointee.
Satisfied by Stewart’s family and political background and assuaged by Stewart’s
opinions while on the appellate bench, Eisenhower gave him the recess appointment.
Six months later on April 9, 1959, Stewart was confirmed by a 70 – 17 vote in the
Senate with the Southerners accounting for a large part of the “nay” vote (Powe
2000, 143).
Stewart twenty-three year tenure on the Supreme Court encompassed a series
of judicial careers and roles. Initially, Stewart settled into his role as the swing vote
(later to be joined by Justice White) on the often divided Warren Court. The deepest
philosophical divide on the Court at that time, was over the proper role of the
Supreme Court in the governmental scheme. Stewart made every effort to stay
above the ideological fray. He insisted that his duty was to decide cases according to
the law (Blasi 1983, 252). During the heyday of the Warren Court, Stewart was a
frequent dissenter, especially in cases that resulted in expansive interpretation of the
rights of persons accused of crime, the prohibition against the establishment of
religion, the right of privacy, and the right to vote (Yarbrough 1991).

200
With regard to constitutional claims that are well grounded in the text of the
Constitution or the history surrounding its adoption, however, Stewart was always
one of the most receptive justices. Having once seriously considered a career as a
journalist, Stewart now wrote several eloquent opinions extolling the importance of
free expression. He interpreted the Fourteenth Amendment and the federal civil
rights statues broadly in cases challenging racial discrimination.
During the years of Warren Burger’s tenure as chief justice, Stewart returned
to his original position at the ideological center of the Court’s divisions. This time,
however, he was joined by several other justices who constituted a group of
moderate judges whose views on particular cases were not easily predictable.
Throughout his service on the Court, Stewart was a well-respected and well-
liked colleague and probably the best writer among the justices.

F. Justice Byron R. White
Byron R. White was born in Fort Collins, Colorado, on June 8, 1917. He
grew up in Wellington, Colorado, a community of just 350 people. His father
worked in the lumber industry and White himself spent his childhood working in
sugar beet fields and on railroad crews. In 1934, he entered the University of
Colorado in 1934 on a full academic scholarship, was elected Phi Beta Kappa in his
junior year, graduated first in his class, and achieved the highest grade averages in
the history of the university. “Whizzer” White embodied the spirit of the athlete-

201
scholar. His athletic accomplishments were as outstanding as his academic
achievements. He won ten varsity letters in three sports and was especially heralded
in football. He was an All-American tailback and led his Colorado team to an
undefeated season. His love of both academics and sports would be a constant theme
in his early life.
Upon graduation in 1938, White accepted a Rhodes Scholarship to Oxford
University but delayed his study there to play a season of professional football with
the Pittsburgh Steelers. That season he led the National Football League in rushing.
After Oxford, White enrolled at the Yale Law School, where he ranked first in his
class after his freshman year. His law study was interrupted, however, first for
another season of professional football with the Detroit Lions and then for your years
as a naval intelligence officer in the South Pacific. After the War, he completed his
legal studies at Yale and graduated magna cum laude in 1946.
White received an appointment as clerk to Chief Justice Fred M. Vinson of
the United States Supreme Court for the 1946-1947 Term. (When he was appointed
to the Supreme Court, White became the first former law clerk to join the Court later
as a justice.) He then returned to Colorado and practiced with a small Denver law
firm. There he remained for fourteen years until he became a highly successful local
organizer in the presidential campaign of John F. Kennedy. With Kennedy’s
election as president, White was appointed deputy attorney general, the number two
position in the Justice Department. In 1962, White was nominated by President

202
Kennedy to fill the position on the Supreme Court created by the resignation of
Charles Whittaker. The Senate confirmed the appointment on April 11, and White
took the oath of office on April 16, 1962.
White’s years on the Court were characterized by a rather consistent
adherence to a few basic themes. He narrowly interpreted the rights of the accused.
He read the First Amendment guarantees of freedom of speech and presses less
expansively than his brethren. He consistently favored constitutional claims in cases
involving racial discrimination, voting rights, and equal educational opportunity. On
numerous occasions he joined the pro-civil libertarian bloc of Brennan, Marshall,
Blackmun and Stevens. (Finesilver 1994, 344 – 345; Blasi 1983; Powe 2000;
Kramer 1991)
White’s opinions tended to be austere in style, though argumentative in
content. Despite his sharp legal mind, White is not widely thought to have left a
strong mark on the development of legal doctrine (Blasi 1983, 220). He is however,
one of the few justices that expressed a strong judicial philosophy in separation of
powers cases. The strongest articulations of this philosophy were to come under
Burger Court, rather than his early judicial career in the Warren Court.
An analysis of White’s separation of powers opinions shows, that he was
arguably the member of the Burger Court most eager to preserve judicial and
congressional limitations upon executive power. Witness, for example, his dissent in

203
Nixon v. Fitzgerald (1982).
138
The language of that dissent echoed his majority
opinion in Butz v. Economou (1978)
139
where White would accord absolute
executive immunity only to executive employees, as such as administrative law
judges, who carry out quasi-judicial functions. In legislative – executive squabbles,
White also refused to automatically back up the executive. INS v. Chadha (1983)
140

saw him the lone dissenter in a case that perhaps sounds the death knell for the
legislative veto, a tool developed by Congress to prevent too much of its lawmaking

138
This case involved a lawsuit brought by Ernest Fitzgerald, a Pentagon employee, against President
Nixon and others. Fitzgerald had been fired during Nixon’s administration, allegedly for bringing
to the public’s attention massive cost overruns in the building of the Lockheed C-5A transport
plane. The majority held that a chief executive is absolutely immune from liability in civil suits for
any action taken in his official capacity. White was one of four dissenters, and he lamented in his
dissenting opinion, “Attaching absolute immunity to the Office of the President … places the
President above the law. It is a reversion to the old notion that the King can do no wrong” (457
U.S. at 766).
139
Arthur Economou was the head of a company registered with the Department of Agriculture as a
commodity futures commission merchant. The department initiated an administrative proceeding to
revoke the company’s registration, averring that it had failed to meet certain prescribed financial
requirements. While the administrative complaint was pending, Economou sued the secretary of
agriculture and other department officials for damages, charging that the true reason for the
proceedings against his business was his criticism of the staff and operations of the department’s
Commodity Exchange Authority. His suit asserted, therefore, that the attempt to cancel the
registration violated his First Amendment Rights.
The single defense raised by the all defendants was that, as government officials, they were
absolutely immune from damages in civil actions, even assuming that they had knowingly and
deliberately breached Economou’s constitutional rights. White, for the Court, rejected this
contention. “The extension of absolute immunity from damages liability to all federal executive
officials would seriously erode the protection provided by basic constitutional guarantees” (438
U.S. at 505). Most of the defendants were, therefore, entitled merely to qualified immunity; this
much is necessary to encourage them to vigorously enforce the laws for which they are responsible.
140
In Chadha, the Court overturned Sec. 244(c)(2) of the Immigration Act, which provided that either
house of Congress could override a decision by the Attorney General to suspend the deportation of
an alien. White was distressed by language in the majority opinion that seemed to declare all
legislative vetoes unconstitutional simply for being, in effect, laws: laws under the Constitution,
must be passed by both houses and approved by the president. He felt that it was naïve to assume
that under the separation of powers doctrine the three branches are sealed off from each other; to
place then in watertight compartments would make effective governing impossible. Moreover, the
veto was a device for ensuring that the executive remained subject to Congress’ will in
implementing its statues and has proven an “important if not indispensable political invention that
allows the President and Congress to resolve major constitutional and policy differences” (462 U.S.
at 972).

204
power from being usurped by the executive. White was no more willing to give
members of Congress absolute immunity from judicial consideration of any action
that in some way related to their official duties than he was members of the
executive, thought he willing to grant them a considerable degree of protection.
141
In
Doe v. McMillan (1973), his majority opinion held that members of Congress, the
committee staff, and the committee investigator were shielded from civil liability to
the extent that they simply submitted a report to a congressional committee.
142

(Yarbrough 2000, 211 – 212; Kramer 1991).
Many of Justice White’s greatest contributions to separation of powers
jurisprudence would come not during the Warren era, but during the Burger and
Rehnquist years. For over thirty years, he consistently and vigorously espoused a
functional interpretation of the separation of powers based on a practical analysis of
how an action strikes a "balance of authority among the branches" (Bowsher at 776).
Justice White espoused this separation of powers functionalism through his frequent
dissents (Stith 1993, 22).
143
Justice White most often found himself in the minority.

141
Thus his opinion in Gravel v. United States (1972) declared that, while a senator and his aide could
be punished for introducing classified material (the Pentagon Papers) at a subcommittee hearing,
they could be questioned by a grand jury for arranging to have them published by a commercial
press.
142
The report was on the conditions in the Washington, D.C., public schools that spoke unfavorably
about specifically named children, thus infringing the children’s right to privacy. The immunity
also extended to voting for the publication of the report; however, those (including, according to a
dictum, a member of Congress) who actually distributed the report to the public could be forced to
pay damages.
143
See: Chadha, Justice 462 U.S. at 967; Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S.
50, 92 (1982) (joined by Burger, C.J. and Powell, J.); Bowsher, 478 U.S. at 759 (joined by
Blackmun, J.); and Metropolitan Washington Airports Auth., 501 U.S. at 277 (1991) (White, J.,
dissenting, joined by Rehnquist, C.J. and Marshall, J.).

205
When Justice White was a member of the majority in separation of powers cases, the
Court used functionalism as the basis of its separation of powers decision.
144
Justice
White, however, never was chosen to write the opinion of the Court in a separation
of powers case – perhaps because of his devotion to such a broadly functional view
of separation of powers. Justice White’s quest for “workable government” echoes
Justice Jackson’s concurrence in Youngstown (1952).
The actual art of governing under our Constitution does not and cannot
conform to judicial definitions of the power of any of its branches based on
isolated clauses or even single Articles torn from context. While the
Constitution diffuses power the better to secure liberty, it also contemplates
that practice will integrate the dispersed powers into a workable government
(Youngstown at 635).

While in other areas of jurisprudence, Justice White favored a rule-based
approach, in separation of powers cases, he supported a standards-based approach to
decision making (Sullivan 1992; Stith 1993; Tanelien 1995).
Justice White found support for his functionalism approach in the doctrine of
checks and balances. His approach called for a system of practical checks and
balances so as to maintain a continuing and evolving separation of powers. Of his
dissents, those in Chadha and Bowsher most clearly articulate Justice White's
functionalism. In each case he concluded that the challenged actions were devices
created under the proper authority of Congress, serving the role of necessary checks
within the political system. In his view, the majority in each case was
interposing a distressingly formalistic view of separation of powers, as a bar
to the achievement of governmental objectives (Bowsher at 759).

144
See Schor, Morrison, and Mistretta

206

Justice White's opinions demonstrate that his separation of powers
jurisprudence originated in what he considered a realistic understanding of the
operation of modern government. From this practical understanding stemmed his
standards-based checks and balances approach to the separation of powers
(Sargentich 1987, 485). In his dissent in INS v. Chadha, Justice White described the
history of separation of powers and the history of the American political structure, as
one of "accommodation and practicality." He emphasized that
…a hermetic sealing of the three branches of the Government from one
another would preclude the establishment of a Nation capable of governing
itself … the Constitution did not contemplate total separation of the three
branches of government (Chadha at 999).

The pursuit of practicality in the structure of government and checks and
balances was the guiding rationale in his separation of powers functionalism. The
practicality of Justice White's approach led him to accept the existence of officers
and agencies whose existence and powers are not easily placed into only one of the
three co-equal branches (Bowsher). He also viewed the administrative state as a
relatively new but integral part of modern government and therefore a "primary
feature" of the modern separation of powers landscape (Chadha at 1002).
Furthermore, he continually emphasized the importance of maintaining the
government's ability to "respond to the contemporary needs" of the nation (Chadha
at 978). He viewed the branches as having the capability and incentive to change or
adjust their overlapping powers in response to an ever evolving nation. This view

207
led him to "focus . . . on preventing major structural imbalances" (Sargentich 1987,
485). With the emphasis on the question of imbalance, issues involving the use of
new structural checks did not implicate violations of the Constitution unless they
disrupted the essential balance of government.
To facilitate evolution of the political structure, Justice White argued that
Congress, through the Necessary and Proper Clause, possessed the constitutional
authority to legitimate innovation in governance. To support this proposition, Justice
White looked back to the era of the Framers and Chief Justice John Marshall. He
noted,
… it is long settled that Congress may 'exercise its best judgment in the
selection of measures, to carry into execution the Constitutional powers of
the government,' and 'avail itself of experience, to exercise its reason, and
accommodate its legislation to circumstance.' (Chadha at 984 citing
McCulloch v. Maryland at 415 – 16, 420).

Justice White made it clear he was unwilling to be constrained by a
formalism that would strip Congress of this power. Justice White’s passionate
separation of powers functionalism set him as apart from his brethren as would
Justice Scalia’s formalism. Neither man’s philosophy would come to be fully
accepted by court – as this study shows, the lack of jurisprudential devotion in
separation of powers cases made that especially inevitable. Nevertheless, White’s
coherent philosophy on the limits of governmental power set him aside from most of
the Court. He retired from the Court on June 28, 1993.

208
G. Justice Arthur J. Goldberg
Arthur J. Goldberg was born on August 8, 1908, the youngest of eleven
children of an immigrant Russian fruit peddler on Chicago’s South Side. He
graduated from Northwestern University in 1929 and graduated first in his class at
Northwestern Law School 1930. Goldberg became a labor lawyer and first gained
national recognition by representing the Chicago Newspaper Guild in a 1938 strike.
Goldberg served as Chief of the Labor Division of the Office of Strategic Services in
Europe during World War II. After the war, Goldberg returned to his practice and
became counsel to both the Congress of Industrial Organizations and the United
Steelworkers of America. He played a major role in the merger of the two largest
national labor organizations in 1955.
Goldberg cultivated two very important relationships on the path to his
judicial career. The first was with Chief Justice Warren. Goldberg sought Warren’s
counsel and viewed him as a mentor. As Bernard Schwarz recounts,
To Goldberg, Warren was the epitome of the ultimate good in American
jurisprudence. “After he got away from Felix’s influence and became his
own man,” Goldberg said, “Warren … decided to use his own conception of
law, morality, and realism, and did not worry about what critics said. He
just decided – and followed the pattern of voicing and voting his genuine
convictions (Schwarz and Lesher 1983, 208).

President John F. Kennedy appointed Goldberg Secretary of Labor in 1961.
Kennedy originally considered Goldberg for Whittaker’s seat, but did not want to
lose such a valuable Cabinet member (Powe 2000, 211). Before Justice
Frankfurter’s strokes, Kennedy had sent emissaries to sound out the Justice about

209
retirement if they could mutually agree on a replacement. Frankfurter, distrustful of
the Kennedys, refused. After the Baker v. Carr decision, Frankfurter suffered a
series of strokes that made retirement the only option for him. Because Frankfurter
had held the so called “Jewish seat” on the Court, Kennedy immediately turned to
Goldberg and on August 29, 1962, President Kennedy nominated him to the
Supreme Court of the United States. The Senate confirmed the appointment on
September 25, 1962 with only Strom Thurmond casting a nay vote.
Goldberg was, by all accounts an “activist judge” and settled into a reliable
voting bloc along with Warren, Black, Douglas and Brennan.
145
Goldberg’s
predecessor, Frankfurter scornfully described his replacement to his former clerk
Alexander Bickel,
The men who are overruling prior decisions of a Court which contained
Holmes, Hughes, Brandeis, and Cardozo are such wholly inexperienced men
as White and Goldberg – without familiarity with the jurisdiction or the
jurisprudence of the Court either as practitioners or scholars, or judges
(Schwarz and Lesher 1983, 208).

Goldberg had been on the Supreme Court for three years when, in 1965,
President Lyndon B. Johnson appointed him United States Ambassador to the United
Nations. Goldberg resigned from the Supreme Court on July 25, 1965 and was
replaced by Abe Fortas. Goldberg retired from his ambassadorship in 1968 and
returned to private practice. He died on January 19, 1990, at the age of eighty-one.

145
Justice Goldberg had a 89 percent liberal voting record, second only to Douglas. Goldberg voted
with Warren between 85 – 89 percent of the time. (Epstein, Segal, et. al.).

210
H. Justice Abe Fortas
Abe Fortas was born in Memphis, Tennessee, on June 19, 1910. He
graduated from Southwestern College in 1930 and from Yale University Law School
in 1933. After graduation, Fortas taught law at Yale for one year. From 1934 to
1939, he held a series of positions in the newly created Securities and Exchange
Commission. In 1941, Fortas was appointed director of the division of power in the
Department of the Interior, and one year later was named Under Secretary.
Following World War II, Fortas and two associates established a law partnership in
Washington, D.C., specializing in corporate law. Over the next twenty years, Fortas
would become one of the most adroit, respected, feared, successful and wealthy
lawyers in the nation.
After two decades of private practice, Fortas was appointed by President
Lyndon B. Johnson to the Supreme Court of the United States on July 28, 1965. The
Senate confirmed the appointment on August 11, 1965. Fortas continued the
tradition, begun with the appointment of Cardozo in 1932, of occupying the “Jewish
seat” on the Court – although Fortas was not replaced by a Jew when he resigned in
1969.
Fortas’ ego and relationship with Johnson is the stuff of judicial legend. As
Schwartz (and many others for that matter) recounts,
…Fortas’ talent was match by his ego – a belief he was so obviously
brilliant, rich, and important that he was beyond taint. In Who’s Who in the
South and Southwest, Fortas’ business address was listed as “c/o White
House, 1600 Pennsylvania Avenue, Washington, D.C.” Author Robert

211
Shogan wrote of Fortas that after his appointment Fortas was “on the Bench
– and on call at the White House.” Shogan reported that “the first person
that the President consults on anything is Abe Fortas [and] few important
Presidential problems are settled without an opinion from Justice Fortas”
(Schwartz and Lesher 1983, 236).

As the Court’s 1968 term arrived, Chief Justice Earl Warren had to face the
country’s upcoming political realities and his own health realities. Richard M.
Nixon would soon be the president of the United States, and Warren was uncertain as
to whether he could outlast him as Chief Justice. In order to deny a soon to be
president Nixon the opportunity to name a Chief Justice, Warren advised Johnson of
his intent and requested that he be replaced by a man who thought as he did about the
issues. Johnson suggested Fortas for Chief and Warren approved.
146
Johnson
quickly nominated fellow Texan Homer Thornberry, a man who had much benefited
from Johnson’s patronage in the past
147
as Fortas’ replacement. The nomination
process that followed for both Fortas and Thornberry became a staging ground for
the Congress to express its disdain for the Warren Court and the Johnson
Administration – both of them represented in the figure of one Abe Fortas.
The issue at hand was Fortas’ advisory role to the President even after he was
seated on the bench. Senators on the Judiciary Committee went at Fortas on

146
Indeed, it was Fortas who made the appointment for Warren to see the President and discuss his
resignation (Powe 2000, 467).
147
Thornberry’s entire political and judicial career came primarily as a result of his relationship with
Lyndon Johnson. He was handpicked by Johnson to fill his seat in Congress. Thornberry was
appointed federal district court judge during the Kennedy years and was elevated to the federal
appellate bench by Johnson.

212
separation of powers grounds to attack the Johnson Administration’s cronyism.
According to Powe (2000) and others Fortas simply lied through his teeth.
148

Although Fortas had asserted in the midst of his crisis that “I cannot and will
not be an instrument by which the separation of powers specified in the
Constitution is called into question,” the truth was, as writer John P.
MacKenzie observed, “the principle itself was discredited and diminished
by his conduct” (Schwartz and Lesher 1983, 267).

Fortas’ nomination would go down in a blazing defeat. While many
suggested that he resign altogether, Fortas stayed on the Court until May 14, 1969,
when he returned to private practice. He died on April 5, 1982, at the age of seventy-
one.

I. Justice Thurgood Marshall
Thurgood Marshall was born July 2, 1908 in Baltimore, Maryland. His great-
grandfather was a slave who was freed by his master; his father was the chief
steward of an exclusive club in Chesapeake Bay; and his mother was a school
teacher in an all-black segregated primary school in Baltimore. He attended Lincoln
University, one of the best black colleges in the nation during that time, and
graduated cum laude in 1930. Excluded because of his race from the University of

148
Power writes, “In fact, Fortas lied through his teeth. Had he been a prominent adviser on the war,
attending numerous meetings? No, just a few where he restated the arguments of others. A lie.
Had he drafted the president’s message on sending federal troops to Detroit? No; he had merely
been at a meeting. Another lie. Then, to the questions whether there was other areas besides
Vietnam and the Detroit riots where he had consulted with the president, he not only responded
with his usual untruthful “no,” he added a gratuitous whopper: “I guess I have made a full
disclosure now, because so far as I can recall those are the two things.””

213
Maryland Law School, Marshall enrolled at Howard University Law School in
Washington, DC and graduated first in his class in 1933.
After graduation, Marshall established a private law practice wherein he
served as counsel to the Baltimore branch of the National Association for the
Advancement of Colored People (NAACP). He joined the national legal staff of the
organization in 1936 and in 1938 became Chief Legal Officer. In 1940, the NAACP
created the Legal Defense and Education Fund, with Marshall as its Director and
Counsel. For more than twenty years, Marshall coordinated the NAACP effort to end
racial segregation through systematic litigation. In 1954, he argued the case of
Brown v. Board of Education before the Supreme Court of the United States.
In 1961, Marshall was appointed by President Kennedy to be a judge on the
United States Court of Appeals for the Second Circuit in New York. He served on
the federal bench until 1965, when he was appointed Solicitor General of the United
States by President Johnson.
149
In 1967, Justice Tom Clark decided to resign from
the Court so that his son, Ramsey Clark could become Johnson’s Attorney General.
For that opening, Johnson nominated Marshall to be an Associate Justice of the
Supreme Court. The Senate confirmed the appointment on August 30, 1967.

149
Marshall was initially reluctant to leave his lifetime appointment to the federal bench for the
uncertainties of the Justice Department. Johnson is said to have told Marshall that “I want folks to
walk down the hall at the Justice Department and look in the door and see a nigger sitting there.”
(Schwarz and Lesher 1983, 355). The Solicitor General is the federal government’s chief advocate
before the Supreme Court, and in that capacity Marshall had argued numerous times before his soon
to be brethren.

214
Not surprisingly, Marshall’s performance on the Court was guided by the
same dedication to racial justice and the rights of the poor people that he displayed as
an advocate. On almost all other issues of civil liberties, he consistently adopted
broad readings of the Bill of Rights and the Fourteenth Amendment. Marshall was
warmly welcomed to the Court by Chief Justice Warren for when Marshall became
Clark’s successor, he became a reliable fifth vote for the Chief when he so needed.
150

During the Warren Era, Marshall served as a judicial extension of Warren’s views
and those usually held by Douglas, Brennan and Fortas (Schwarz and Lesher 1983).
Marshall served twenty-three years on the Supreme Court, retiring on June
17, 1991, at the age of eighty-two. He died on January 24, 1993, at the age of eighty-
four.”

III. The Cases
This analysis of the Warren Court is a good time to distinguish between
interbranch disputes and cases regarding the limits of governmental power – usually
as a contrast to violations of individual liberty. These cases are always included in
separation of powers texts, but are not really interbranch disputes. They are
important because they delineate the outer limits of each branch’s power – but not
always in relation to another branch. Because these cases often pit governmental

150
Though Earl Warren and Tom Clark had been close friends, and despite Warren’s ability to move
Clark to the chief’s position in a number of important cases, Clark remained adamantly independent
of Warren’s view in most criminal and subversion cases (Schwarz and Lesher 1983, 254).

215
power against a basic individual liberty (i.e. freedom of speech) or against a
constitutional tenet (i.e. the establishment clause), they are more correctly “coded”
for the purposes of judicial behavior analysis as freedom of speech cases or
establishment clause cases. Indeed, as I discussed in the introduction, the attitudinal
model of judicial behavior performs very well in almost every area of law, except
separation of powers. These individual liberty cases are no exception. The
attitudinalists correctly predict the behavior of the justices in these cases. One’s
feelings about the separation of church and state, or freedom of speech, or the
government’s power to root out “subversives” are all easily quantified within the
liberal/conservative dichotomy and therefore perform very well under the attitudinal
model.
This section begins with a brief analysis of these government vs. individual
liberty cases – only to orient us within the court’s continuing read on what the limits
of the individual branches are. These cases which are not inter-branch disputes will
not be run through the behavioral models. The second, and for the purposes of this
study, more important, section will analyze the inter-branch disputes of the Warren
era.

216
J. Separation of Powers Cases
The first real test of an inter-branch dispute in the Warren era was the case of
Cammer v. United States, 350 U.S. 399 (1956). In an 8 – 0 decision, the Court
151

had an opportunity to comment on the limits of the contempt power of the judiciary
and the ability of Congress to legislate that power. They sidestepped the issue of the
limits of judicial power and said that it was not necessary to consider the boundaries
of the contempt power because lawyers are not “officers” of the court within the
ordinary meaning of the term and are therefore not covered by the contempt statute.
Cammer was however squarely in a line of cases which narrowly construed the
Contempt Act of 1831.
152
Although it may appear that this decision is limiting the
contempt power of the judiciary,
153
it actually represents a narrow construction of
Congress’ attempt to control the purview of the Judiciary.
154

As zealously as the Court protects its own functions, it has also traditionally
respected the ability of the military to conduct its own affairs without much
interference from other branches. The Court’s trust in the military to run its own
affairs began to diminish with the Korean War. While we most often think of

151
Warren 2: Warren, Black, Reed, Frank, Douglas, Burton, Clark, Minton and Harlan (not
participating in this decision).
152
See also Nye v. United States, 313 U.S. 33; In re Michael, 326 U.S. 224 Anderson v. Dunn, 6
Wheat. 204, 231. United States ex rel. Toth v. Quarles, 350 U.S. 11.
153 Historically, legislation concerning contempts of court began with attempts to limit the exercise of the contempt power in cases where the judiciary was
abusing the power such as in
some
judicial
attempts to interfere with newspaper comments on trials. See
Frankfurter and Landis, “Power of Congress over Procedure in Criminal Contempts in 'Inferior'
Federal Courts”, 37 Harv. L. Rev. 1010, 1023-28 (1924).
154
From the beginning of government under the Constitution of 1789, Congress has assumed, under
the necessary and proper clause, its power to establish inferior courts, its power to regulate the
jurisdiction of federal courts and the power to regulate the issuance of writs. (Frankfurter and
Landis 1924, 1016 – 1023).

217
Vietnam as the point of American military disillusionment, it was in fact the
inelegant and complicated war in Korea which weakened the military’s unquestioned
hold on the psyche of the country and especially its own members (Schwartz and
Lesher 1983, 144). The Court reflected that attitude in the case of Reid v. Covert,
354 U.S. 1 (1957). In a 6 – 2 decision, the Court
155
held that foreign commitments
cannot relieve the government from its obligation to operate within the limits
imposed by the Constitution, and that the prohibitions of the Constitution cannot be
nullified by the President or by the President and the Senate combined – the
Constitution is superior to Treaties. Between 1937 and 1967 only 11 of 88
Congressional Acts were set aside by the Court. Reid v. Covert was one of the 11
(Mason 1968, 232).
The case involved the question of the proper venue for the criminal
prosecution of two separate defendants, Mrs. Dorothy Krueger Smith and Mrs.
Clarice B. Covert. In separate incidents, each was accused of murdering their soldier
husbands on overseas American military bases, they were tried and convicted by
military courts-martial under a provision subjecting to military justice, “…all persons
serving with … or accompanying the armed forces without the continental limits of
the United States.” The women independently claimed it was unconstitutional to try
civilians in military courts (Schwartz and Lesher 1983, 145 – 146).

155
Warren 4: In the majority were Warren, Black, Brennan, Harlan, Frankfurter, Douglas. Voting in
the minority were Clark, Burton. Whittaker did not participate as the case was argued before he
joined the Court.

218
“The Case of the Murdering Wives,” as it came to be known, would split two
iterations of the Warren Court. When the cases first were discussed in conference on
May 4, 1956, Warren argued strongly against the provisions of the Uniform Code of
Military Justice which gave the military judicial authority over the dependents of
servicemen. The Court (Warren 3) originally ruled in the military’s favor. Warren 4
reconsidered and condemned broadly the court-martial jurisdiction over civilians.
156

In the first opinion on the case, Justice Clark stressed cases like Ross,
157
which
upheld congressional power to create “legislative” and consular courts to try certain
crimes abroad. He argued that military courts, beyond their usual purview, might
well be preferable in the absence of United States Courts.
The power to create a territorial or consular court, must necessarily include
the power to provide for trial before a military tribunal. Congress may well
have determined that trial before an American court-martial … was
preferable to leaving American servicemen and their dependents … subject
to widely varying standards of justice unfamiliar with out people.

Clark wrote in a letter to Brennan trying to convince him to uphold the
previous decision in favor of military jurisdiction: “…We should hesitate to
repudiate our opinion of last June – and more so the power of the Congress that has
been exercised unquestioned (emphasis in the original) for over forty years”
(Schwartz and Lesher 1983, 148).

156
For the story on how Frankfurter and others strategized to rehear the case and then won a majority
because of the retirements of Reed and Minton see: Schwartz and Lesher 1983, 147.
157
In Re Ross (1891) held that constitutional guarantees may not apply outside the territorial United
States.

219
At issue in Wiener v. United States, 357 U.S. 349 (1958) was President
Eisenhower’s removal of a member of the War Claims Commission. Congress
established the War Claims Commission to “adjudicate according to law” certain
claims arising from enemy action in World War II. The enabling statute, anticipating
a short-lived agency, made no provision for removal. Eisenhower removed
Commission Myron Wiener on the ground that the act should be administered “with
personnel of my own selection.” Commissioner Wiener then sued for lost salary.
The Court of Claims dismissed the plaintiff’s suit, but the Supreme Court, in
unanimously reversed this decision.
158
In an opinion by Justice Frankfurter, the
Court held that the president had no power under the Constitution or statute to
remove a member from the War Claims Commission. The agency’s task, said the
Court, had an “intrinsic judicial character.” Congress had explicitly rejected a
legislative option that would have placed responsibility with administration.
Congress could not, therefore, have wanted to hang over the head of the commission
“the Damocles’ sword of removal” by a president for not other reason that that he
wanted his own man. At the time the commission was abolished, the Senate still had
not confirmed Eisenhower’s nominee.
The Warren Court, in general did not deal much with executive power in its
separation of powers cases. As an exception, Wiener ruled against the President,
denying him the removal power, just as it would do with Congress later in Powell.

158
Decided by Warren 4: Warren, Black, Douglas, Burton, Clark, Harlan, Brennan, Whittaker and
Frankfurter.

220
The removal power had always been held most deeply by the executive, but this
denial by the Supreme Court, did not invoke much reaction in the Eisenhower
administration.
A ruling denying Franklin Roosevelt power to remove a member of the
Federal Trade Commission irked him even more than the treatment afforded
New Deal Legislation [referring to Humphrey’s Executor v. United States,
295 U.S. 602 (1935)]. The Wiener case, however, stirred little excitement in
the quiescent years of the Eisenhower administration. And the president’s
involvement in the other cases decided by the Court and affecting the
executive branch attenuated. (Kurland 1970, 41 – 42).

At the time of the Warren Court, interventions into the powers of the
executive branch were still more rare than interference with Congress. The marquee
cases of the Burger and Rehnquist years were still to come. Still then as now, the
executive is far more likely than Congress to prevail and in as much, Wiener was a
blow not just to the executive branch, but to the president himself.
In 1901, Tennessee passed a law designed to apportion the seats for the
state’s General Assembly. Almost immediately thereafter, the law was ignored.
Sixty years later, a group of Tennessee citizens led by Charles W. Baker brought suit
detailing how Tennessee's lack of reapportionment efforts ignored significant
economic growth and population shifts within the state. The plaintiffs argued that by
not reapportioning for almost sixty years, the state of Tennessee had acted in
violation of the Fourteenth Amendment’s Equal Protection clause. While Baker v.
Carr, 369 U.S. 186 (1962), dealt with issues of standing, legal injury and
apportionment, the question, in terms of separation of powers significance is simply
one of jurisdiction – did the Supreme Court have jurisdiction over questions of

221
legislative apportionment, or was that an essentially political question? The issue of
political questions have been present for the Supreme Court since the beginning of
the republic.
159

In a 6 – 2
160
decision the court held that Baker v. Carr held no political
questions and was therefore justiciable. In an opinion which explored the nature of
"political questions" and the proper place of Court action in them, the Court held that
there were no such political questions in this case and that legislative apportionment
was indeed a justiciable issue. Justice Brennan writing for the Court concluded that
the Fourteenth Amendment equal protection issues which Baker and others raised in
this case merited judicial evaluation. The Court would in fact, find that there was in
fact a violation of the Fourteenth Amendment. Important sections of Brennan’s
opinion reflected the courts concentration on the separation of powers issues
presented by this case,
The nonjusticiability of a political question is primarily a function of the
separation of powers. Much confusion results from the capacity of the
“political question” label to obscure the need for case-by-case inquiry.
Deciding whether a matter has in any measure been committed by the
Constitution to another branch of government, or whether the action of that
branch exceeds whatever authority has been committed, is itself a delicate
exercise of constitutional interpretation, and is a responsibility of this Court
as ultimate interpreter of the Constitution. To demonstrate this requires no
less than to analyze representative cases and to infer from them the
analytical threads that make up the political question doctrine. We shall
then show that non of those threads catches this case.

159
Chief Justice Marshall stated in Marbury v. Madison: “The province of the court is, solely, to
decide on the rights of individuals, not to inquire how the executive, or executive officers, perform
duties in which they have a discretion. Questions in their nature political, or which are, by the
constitution and law, submitted to the executive, can never be made in this court.”
160
Justices Brennan, Warren, Douglas, Stewart, Clark with Justices Frankfurter and Harlan in dissent.
Justice Whittaker did not participate.

222

It is apparent that several formulations which vary slightly according to the
settings in which the questions arise may describe a political question,
although each has one or more elements which identifies it as essentially a
function of the separation of powers.

Justice Brennan’s definition of a political question
161
would come to serve as
philosophical guiding post not just for future like cases, but for any case in which a
branch would attempt to expand its traditionally established base of power.
In dissent, Justice Frankfurter spoke for a plurality (with Black, Douglas, and
Murphy dissenting) when he said “the petitioners ask of this Court what is beyond its
competence to grant.” He went on to say,
It is hostile to the democratic system to involve the judiciary in the politics
of the people. And it is not less pernicious if such judicial intervention in an
essentially political contest be dressed up in abstract phrases of the law…
The Constitution of the United States gives ample power to provide against
these evils…The short of it is that the Constitution has conferred upon
Congress exclusive authority to secure fair representation by the states in the
popular House and left to that House determination whether states have
fulfilled their responsibility. If Congress failed … the remedy lies with the
people … To sustain this action would cut very deep into the very being of
Congress.

Frankfurter followed with his memorable warning, “Courts ought not to enter
this political thicket.” The then elderly Frankfurter was exhausted and overcome by

161
Justice Brennan wrote,
“Prominent on the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind clearly for a nonjudicial discretion; or the
impossibility of a court’s undertaking independent resolution without expressing lack of the respect
due coordinate branches of government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of embarrassment form multifarious
pronouncements by various departments on one question.”

223
this debate. Scholars such as Powe (2000) and Gormely (1997), directly attribute the
contentious debate in Baker for precipitating a strong that came two weeks after the
case was decided.
The lengthy intense defeat in Baker was too much for the eighty-year-old
Frankfurter. Like many older public figures, he was shocked that what
seemed to him to be eternal truths were being rejected as outmoded leftovers
from an earlier and forgotten era. Less than two weeks after Baker, he
suffered a stroke while working in chambers, followed by a second, more
serious one in the hospital. When Cox went to see his former mentor,
Frankfurter, who could not longer speak clearly, “conveyed in substance the
message that it had been Baker v. Carr that had been responsible” for his
strokes (Powe 2000, 205 citing Gormley 1997, 170).

The significance of Baker in this study is two-fold. Primarily, this case
represents an expansion of judicial power. But also, while there exists no direct
inter-branch dispute in this case (Baker dealt with the Tennessee legislature not
Congress), the Court was, nevertheless, putting the other branches on notice that it
viewed its own competency and purview as much wider than any institution or court
had previously considered. This is primarily viewed as a reapportionment case,
much like Buckley v. Valeo is seen primarily as campaign finance case but the
separation of powers played a crucial part in the decision-making process..
What constituted a valid legislative investigation? The congressional power
of investigation is not unlimited; a number of requirements for a valid investigation
would necessarily precede a contempt holding.
162
First, although Congress has the
inherent authority to investigate, when the investigatory function is assumed by a
body or individual other than a standing committee or subcommittee, the authority to

162
For a general overview see Wilkinson v. United States, 365 U.S. 399, 408-09 (1960)

224
conduct the investigation must be set forth in a resolution and must be clearly
defined.
163
Second, the investigation must promote a valid legislative purpose.
164

For instance, the Court has held that investigations cannot be conducted merely for
the sake of exposure, censure, or harassment. Third, questions posed to the witness
must be pertinent to the subject of inquiry.
165

In Hutcheson v. United States, 369 U.S. 599 (1962), a labor union president,
was summoned to testify regarding legislation about misuse of union funds.
Hutcheson refused to answer eighteen questions, in part because his responses might
lead to his indictment for alleged bribery of a state official. He was convicted for
contempt of Congress under 2 U.S.C. § 192.
166
The Supreme Court upheld the
conviction and rejected the argument that committee's questioning of petitioner
regarding matters germane to the state criminal charges pending against him violated

163
Watkins v. United States, 354 U.S. 178, 201 (1957); see also Wilkinson, 365 U.S. at 409 (agreeing
that investigatory congressional subcommittee must restrict its activities to its designed purpose);
Barenblatt v. United States, 360 U.S. 109, 116-23 (1958) (holding that Congressional Committee
on Un-American activities had sufficiently defined purpose).
164
See Barenblatt, 360 U.S. at 127-29 (must be valid legislative purpose); Watkins, 354 U.S. at 198
("mere semblance of legislative purpose will not justify an inquiry"); Kilbourn v. Thompson, 103
U.S. 168, 190, 195 (1880) (investigation into private affairs of individual invalid if unrelated to
valid legislative purpose); Wilkinson, 365 U.S. at 410-11 (Congress's broad power to legislate in the
realm of Communist activity).
165
This requirement is related to the first two requirements in that pertinency requires that the
question be within the investigative authority of the entity, and that the question be targeted at
information needed to fulfill a valid legislative purpose.
166
This statute provides: “Refusal of witness to testify or produce papers--Every person who having
been summoned as a witness by the authority of either House of Congress to give testimony or to
produce papers upon any matter under inquiry before either House, or any joint committee
established by a joint or concurrent resolution of the two Houses of Congress, or any committee of
either House of Congress, willfully makes default, or who, having appeared, refuses to answer any
question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor,
punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail
for not less than one month nor more than twelve months.”

225
the Fifth Amendment's due process clause, stated that "surely a congressional
committee which is engaged in a legitimate legislative investigation need not grind
to a halt whenever responses to its inquiries might potentially be harmful to a witness
in some distinct proceeding, or when crime or wrongdoing is disclosed" (Hutcheson,
369 U.S. at 618).
167

The delegation of legislative power is an old concern, older than the
Constitution or even than the separation of powers principle. According to Locke,
one of the four unbreachable boundaries confining legislative authority was that:
The Legislative cannot transfer the Power of Making Laws to any other
hands. For it being bout a delegated Power from the People, they, who have
it, cannot pass it over to others. . . . And when the people have said, We will
submit to rules, and be govern'd by Laws made by such Men, and in such
Forms, no Body else can say other Men shall make Laws for them; nor can
the people be bound by any Laws but such as are Enacted by those, whom
they have Chosen, and Authorised to make Laws for them. The power of the
Legislative being derived from the People by a positive voluntary Grant and
Institution, can be no other, than what the positive Grant conveyed, which
being only to make Laws, and not to make Legislators, the Legislative can
have no power to transfer their Authority of making laws, and place it in
other hand (Locke, Two Treatises as cited in Aaronson, Gellhorn and
Robinson 1982, 4)

In Arizona v. California, 373 U.S. 546 (1963), the Court
168
in a 5 – 3 opinion
approved a broad delegation of power which gave almost boundless discretion to the
Secretary of the Interior to apportion Colorado River water rights. The Court
seemed to justify the approval of this unfettered discretion by noting that Congress
could always amend the statute, should they find that the Secretary was abusing his

167
This case is in the same line as Wilkinson, Watkins and Barenblatt – the limits of Congress’
investigatory power and its ability to hand down contempt charges.
168
Warren 7: Warren, Black, Douglas, Clark, Harlan II, Brennan, Stewart, B. White, Goldberg

226
power (Bruff 2006, 141). Justice Harlan dissenting, expressed concern about the
lack of standards in defining the limits of the interior secretary’s power to apportion
the waters of the Colorado River (Arizona, 624 – 627). It his dissent which raises
questions of separation of powers – a theme the majority widely ignored. Of the
nondelegation doctrine, Harlan states,
The principle . . . serves two primary functions vital to preserving the
separation of powers required by the Constitution. First, it insures that the
fundamental policy decisions in our society will be made not by an
appointed official but by the body immediately responsible to the people.
Second, it prevents judicial review from becoming merely an exercise at
large by providing the courts with some measure against which to judge the
official action that has been challenged (Arizona at 626).

Just as the traditional political question doctrine required federal courts to
accept as fact certain judgments made by the federal political branches, the
traditional act of state doctrine required federal courts to accept without question the
validity of foreign sovereign acts of state performed in that sovereign's territory
(Dellapenna 1990; Goldsmith 1999).
169
Like the traditional political question
doctrine, the traditional act of state doctrine was based on easily discernible doctrinal
categories, was relatively simple to apply, and was relatively determinant in
outcome. Although the doctrine served the purpose of "international comity and
expediency" and was designed to ensure "amicable relations between governments,"
(Oetjen v. Central Leather Co., 246 U.S. 297, 304 (1918)), courts appeared to apply

169
For example, in 1897, the Supreme Court declined to question the validity of a Venezuelan
official's allegedly unlawful detention of a U.S. citizen in Venezuela, and dismissed the U.S.
plaintiff's tort claim on its merits (Underhill v. Hernandez, 168 U.S. 250 (1897)). See also Ricaud
v. American Metal Co., 246 U.S. 304 (1918); Oetjen v. Central Leather Co., 246 U.S. 297 (1918).

227
it as a rule and did not consider whether these purposes were served in any particular
case.
This understanding of the act of state doctrine changed in Banco Nacional de
Cuba v. Sabbatino, 376 U.S. 398 (1964). In an 8 – 1 decision, the Court
170
in
Sabbatino held that the act of state doctrine precluded judicial inquiry into the
validity of a Cuban expropriation, even if the expropriation violated customary
international law (Sabbatino at 437). In so ruling, the Court rejected its prior
categorical approach and replaced it with a case-by-case analysis in which the key
question is the extent to which a judicial inquiry into a foreign act of state adversely
affects U.S. foreign relations or the Executive's ability to conduct those relations
(Goldsmith 1999).
171
Under this regime, the act of state doctrine bars an adjudication
if the foreign relations consequences of the adjudication are significant. Most
importantly from a separation of powers standpoint, Sabbatino made clear that
federal courts, and not the Executive, are charged with the task of identifying and
assessing these foreign relations consequences (Sabbatino at 431 – 432; Goldsmith
1999).
Since Sabbatino, the act of state doctrine has been at issue in hundreds of
cases. Courts dismissed many of these cases based on the conclusion that U.S.

170
Warren 7: Warren, Black, Douglas, Clark, Harlan II, Brennan, Stewart, and Goldberg with White
dissenting.
171
Sabbatino at 428 states, "The less important the implications of an issue are for our foreign
relations, the weaker the justification for exclusivity in the political branches."; see also Allied Bank
Int'l v. Banco Credito Agricola de Cartago, 757 F.2d 516, 520-21 (2d Cir. 1985) stating that under
Sabbatino, "the applicability of the [act of state] doctrine depends on the likely impact on
international relations that would result from judicial consideration of the foreign sovereign's act".

228
foreign relations interests so required.
172
Many other cases involving foreign acts of
state that seemed to implicate significant foreign relations interests were not
dismissed.
173
This apparent inconsistency - again, the treatment of seemingly like
cases differently - is one reason that commentators have described the act of state
doctrine as being in "a state of utter confusion" (Dellapenna 1990, 7). Professor
Henkin writes,
The Court claimed no authorization from Congress to elaborate the Act of
State doctrine, and seemed carefully to avoid seeking support for it in
Executive authority; the Court found, implied in the Constitution, an
independent power for federal courts to make such law on their own
authority. It was the federal judiciary that decided that the foreign relations
of the United States required the Act of State doctrine; and it was the
judiciary that was deciding, in Sabbatino, that the foreign relations of the
United States did not require (or permit) exception for acts of state that
violate international law (1996, 139).

In 1965, the Supreme Court considered a bill of attainder challenge in United
States v. Brown, 381 U.S. 437 (1965). The decision to sustain this challenge to
section 504 of the Labor Management and Disclosure Act of 1959 narrowly
succeeded by a five-to-four vote
174
(Brown at 462). In one sense, this was an "easy"
case because the statute explicitly made it a crime for any person who was or had

172
Dellapenna (1990) points us to International Ass'n of Machinists v. OPEC, 649 F.2d 1354 (9th Cir.
1981) (adverse foreign relations consequences preclude antitrust suit against OPEC); O.N.E.
Shipping Ltd. v. Flota Mercante Grancolombiana, S.A., 830 F.2d 449 (2d Cir. 1987) (foreign
relations consequences preclude adjudication of antitrust action against instrumentality of
Colombian government).
173
See for example, Airline Pilots Ass'n v. TACA Int'l Airlines, S.A., 748 F.2d 965 (5th Cir. 1984)
(foreign relations consequences do not preclude court from invoking Railway Labor Act to bar
relocation of El Salvadoran airline to El Salvador); Sage Int'l Ltd. v. Cadillac Gage Co., 534 F.
Supp. 896 (E.D. Mich. 1981) (holding that foreign relations consequences do not preclude
adjudication of antitrust action implicating the validity of orders of foreign government agents).
174
Warren 7: Warren, Black, Douglas, Brennan and Goldberg (majority) and White, Clark, Harlan
and Stewart dissenting.

229
been a Communist Party member to serve as a member of the executive board of a
labor organization, and thus it was clearly punitive in purpose.
175
In this sense,
Brown represents perhaps the best example of a law enacted exclusively for a
punitive purpose. The effort on the part of the Brown Court to clarify the bill of
attainder doctrine was not, however, entirely successful. The majority, in an attempt
to reconcile Brown with earlier "subversive" cases, invoked a distinction between
legislative rule-making of general applicability and specificity. The Court ruled that
if the legislation is general enough, then it is regulatory rather than punitive and
therefore cannot be a bill of attainder (Welsh 1983, 104).
The prohibition on Bills of Attainder
176
, as exemplified in Brown, is a mere
continuation of an historic concern for prophylactic separation of powers. The Bill
of Attainder Clause
177
was designed by the Framers to prevent the deprivation of
individual rights by the legislature and to preserve the integrity of the new

175
The Act stated, in part: (a) No person who is or has been a member of the Communist Party . . .
shall serve – (1) as an officer, director, trustee, member of any executive board or similar
governing body, business agent, manager, organizer or other employee (other than as an employee
performing exclusively clerical or custodial duties) of any labor organization . . . during or for five
years after the termination of his membership in the Communist Party … (b) Any person who
willfully violates this section shall be fined not more than $ 10,000 or imprisoned for not more than
one year, or both (Brown at 438).
176
In England, a bill of attainder was a parliamentary act that sentenced a named individual or
identifiable members of a group to death. It was most often used to punish political activities that
Parliament or the sovereign found threatening or treasonous (Carrigan 2000; Hennessy 2003). The
Supreme Court has consistently defined a bill of attainder as "law that legislatively determines guilt
and inflicts punishment upon an identifiable individual without provision of the protections of a
judicial trial" (Brown at 468).
177
Article 1, Section 9, Clause 3 of the U.S. Constitution reads “No Bill of Attainder or ex post fact
Law shall be passed.”

230
government’s separation of powers and system of government (Brown at 444 – 445;
U.S. v. Lovett, 328 U.S. 303, 317 – 318 (1946)).
As the Court recognized in United States v. Brown, 381 U.S. 437, 442
(1965), “the Bill of Attainder Clause was intended not as a narrow, technical
… prohibition, but rather an implementation of the separation of powers, a
general safeguard against legislative exercise of the judicial function, or
more simply – trial by legislature.” This Clause and the separation of
powers doctrine generally, reflect the framers’ concern that trial by
legislature lacks the safeguards necessary to prevent the abuse of power
(Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983)).

Brown represents a limit on the fusion of power in Congress by prohibiting
punitive legislation.
178
Courts have generally applied a balancing test to determine
whether legislation is a punitive measure or the legitimate regulation of conduct.
179

The Court weighs the public's needs, as interpreted by Congress, against the law's
detrimental effect on the named individual or group to ascertain if it survives
scrutiny under the Clause (Carrigan 2000; Hennessy 2003; Welsh 1983). When
there is no legitimate legislative purpose, the Supreme Court will find that the law
was enacted with the purpose of punishing the individuals disadvantaged by the law
(Nixon v. Administrator of General Services, 433 U.S. 425, 476 (1977)).
During the era of Dies and McCarthy, many legislative efforts were made to
curb the activities of individuals associated with the Communist Party. These statutes

178
The Court has also looked unfavorably at the fusion of power in the executive (see Youngstown
Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952)) as well as the fusion of power in the judiciary,
although not as often (see United States v. Hudson & Goodwin, 11 U.S. 32 (1811)).
179
See for example Dehainaut v. Pena, 32 F.3d 1066, 1072 (7th Cir. 1994). President Reagan directed
that air traffic controllers who participated in a 1981 strike be indefinitely barred after they ignored
his order to return to work. The Seventh Circuit held that the directive was a nonpunitive,
protective measure "to protect the efficiency of the FAA's operations" and "the safe and effective
performance of the nation's air traffic control system."

231
were frequently challenged on bill of attainder grounds (Welsh 1983, 101).
180
The
Court, however, has relied upon the prohibition against bills of attainder only five
times to strike down legislation.
181
Correspondingly, there have been few times
when the Court has found that legislation was enacted with the specific purpose of
punishing an individual (Nixon 1977). In Brown, the Supreme Court found that the
law's only purpose was to inflict deprivations on blameworthy individuals in order to
prevent their future misconduct, which was prohibited by the Clause as an
impermissible punitive objective under the functional test for punishment (Brown
460 – 461).
The Bill of Attainment Clause represents two dominant and concurrent
themes: the separation of powers or fear of over-concentration in any one branch of
our government, and the conviction that the characteristics of various institutions
render them suitable for different jobs (Carrigan 2000). The practical consequence
for our system of government is to ensure that the legislature is confined to
rulemaking and prohibited from conducting trials and to protect the separation of
powers by preventing the legislature from assuming the functions of the judiciary.

180
In Communist Party v. Subversive Activities Control Board, 368 U.S. 871 (1961) the Court refused
to find the existence of a bill of attainder because the targets of the statute were not specifically
identified. In American Communications Association v. Douds, 339 U.S. 382 (1950) the Court
again refused to find a bill of attainder because the statute sought to prevent future acts rather than
punish for past acts.
181
See generally Brown; United States v. Lovett, 328 U.S. 303 (1946) (striking down statute that cut
off the salary of three named federal employees based on their membership in the Communist
Party); Pierce v. Carskadon, 83 U.S. 234 (1872) (striking down West Virginia loyalty oath); Ex
Parte Garland, 71 U.S. 366 (1866) (striking down statute that required attorneys to take oath that
they had not aided the Confederacy); Cummings v. Missouri, 71 U.S. 356 (1866) (striking down
amendments to state constitution that barred people from participating as clergy as well as other
professions because they had aided or sympathized with the Confederacy).

232
As such, the Clause reflects the Framers' belief that Congress is not as well-suited to
the task of determining guilt and levying punishment as politically independent
judges and juries (Brown at 444 – 445). In addition, in a system of government that
relies on the presumption that each branch will refrain from performing the tasks of
the others, the Clause serves as a barrier, erected to ensure that the legislature will
not overstep the bounds of its authority and perform the functions of the other
departments (Welsh 1983). The Clause restrains Congress from usurping judicial
functions in the same way that Article III of the Constitution confines the judicial
branch to the task of adjudicating concrete cases or controversies (Carrigan 2000).
In United States v. Johnson, 383 U.S. 169 (1966), the Court
182
held that the
Speech or Debate Clause precludes judicial inquiry into the motivation for a
congressman's speech on the House floor and prevents the speech from being made
the basis of a criminal charge against the congressman for conspiracy to defraud the
government. The Speech or Debate Clause, according to the Court was designed to
protect legislators from executive or judicial harassment (Johnson at 179).
The Speech or Debate Clause (U.S. Constitution, Article I, section 6, cl. 1)
provides that "for any Speech or Debate in either House, [Senators or
Representatives] shall not be questioned in any other place." The Framers intended
that the Clause shield legislators from "prosecution by an unfriendly executive and
conviction by a hostile judiciary," and, thereby, preserve the independence of the

182
Warren 8: Warren, Black, Douglas, Clark, Harlan II, Brennan, Stewart, B. White and Fortas

233
legislative branch (Johnson at 179). In furtherance of the separation of powers
function underlying the Speech or Debate Clause, the Supreme Court has held that
Members of Congress (Johnson at 184 – 185) and, more recently, their aides
183
are
immune from prosecution for their "legislative acts" (Johnson at 185). This
immunity "insures that legislators are not distracted from or hindered in the
performance of their legislative tasks by being called into court to defend their
actions."
184
Within the scope of the Speech or Debate Clause, immunity from
prosecution for legislative acts is absolute.
185

The Court has used the separation of powers doctrine to broaden the scope of
judicially recognized and constitutionally grounded immunity from prosecution
available to Members of Congress (Shane and Bruff 1996, 249 – 257). On
application of the privilege, however, the Supreme Court is careful not to "extend the
scope of the protection [under the Speech or Debate Clause] further than its purposes
require" (Forrester v. White, 484 U.S. 219, 224 (1988)). For example, the Supreme
Court has distinguished "legislative acts" from "political acts," with the latter

183
In Gravel v. United States, 408 U.S. 606 (1972) held that due to the complexities of the modern
legislative process and the resulting delegation of tasks performed by legislators to their aides, the
immunity of the Speech or Debate Clause extends to congressional aides insofar as an aide’s
conduct would be a protected legislative act if performed by a legislator (Gravel at 621 – 622).
184
In Powell v. McCormack, 395 U.S. 486 (1969), the Court held that the Speech or Debate Clause
barred prosecution of the Speaker of the House and certain House Members for denying a duly
elected Representative his seat by adoption of a House Resolution (Powell at 505). (see full
discussion Powell below).
185
See Eastland v. United States Servicemen's Fund, 421 U.S. 491, 509-10 (1975) which held that
investigation by members of a Senate subcommittee into the activities of an organization to
determine if its activities were potentially harmful to the morale of the U.S. Armed Forces fell
within the legitimate legislative sphere and thus was protected by the Speech or Debate Clause (see
full discussion in Chapter 4).

234
category of conduct falling outside the scope of Speech or Debate Clause immunity
(Raveson 1985).
186
"Legislative acts" include, in addition to speech and debate on
the House or Senate floor, voting, preparing committee reports, and conducting
committee hearings. Non-legislative, or "political," acts include republishing
legislative materials for distribution to constituents
187
and taking a bribe to influence
a vote (United States v. Brewster, 408 U.S. 501, 525-26 (1972)).
The foundation of judicial immunity is weaker than that of Congressional
immunity,
188
nevertheless in Pierson v. Ray, 386 U.S. 547 (1967), the Court, in an 8
– 1
189
decision declared that
[t]he immunity of judges for acts within the judicial role is [as] equally well
established [as that for legislators], and we presume that Congress would
have specifically so provided had it wished to abolish the doctrine (Pierson
at 554 – 555).

And in so stating, granted absolute immunity to state judges.
190

42 U.S.C. 1983 made liable " every person" who under color of law deprives
another person of his civil rights. In 1961, a group of black and white ministers
staged a civil rights protest in which they attempted to use a segregated interstate bus

186
In United States v. Brewster, 408 U.S. 501, 512 (1972) the court held that prosecution of a senator
under a federal bribery statute was not foreclosed by the Speech or Debate Clause because his
prosecution did not necessitate inquiry into legislative acts or motives (see full discussion in
Chapter 4).
187
Hutchinson v. Proxmire, 443 U.S. 111, 133 (1979) held that the Speech or Debate Clause did not
protect Senator Proxmire from a defamation suit brought against him as a result of press releases
and newsletters transmitted by him informing the public of the winners of his "Golden Fleece
Award" for wasteful government-supported projects (see full discussion in Chapter 4).
188
See for example Tenny v. Brandhove, 341 U.S. 367 (1951).
189
Warren 8: Warren, Black, Clark, Harlan, Brennan, Stewart, White and Fortas with Douglas
dissenting.
190
Stump v. Sparkman, 435 U.S. 349 would do the same in 1978.

235
terminal waiting room in Jackson, Mississippi. They were arrested and charged with
conduct breaching the peace in violation of 2087.5 of the Mississippi Code.
191
The
clergymen waived a jury trial and were convicted by a municipal police justice. The
clergymen then attempted to use 42 U.S.C. 1983 to hold the judge liable for the
deprivation of their civil rights.
Pierson made the assertion that judicial immunity was found in common law
(Pierson at 554), but many commentators doubt that this protection was as well
ingrained in the common law as Pierson claimed.
192
Feinman and Cohen (1980,
237) remind us that, “American courts . . . held many, if not most, judicial officers
liable for their wrongful acts much, if not most, of the time."
193
Indeed, there seems
to be little evidence of a solidly established common law immunity for judges and
for most of American history, there was substantial variation in regards to judicial
immunity from state to state (Shaman 1990, 1 – 2).
Mora v. McNamara, 389 U.S. 934 (1967) is the only case in this study which
was not decided by the Supreme Court – at least not directly. In a 7 – 2 decision, the
Court denied cert. in a case that challenged the authority delegated to the executive
by the legislature in the Gulf of Tonkin Resolution. The reason the case is included

191
Which the Court held unconstitutional in Thomas v. Mississippi, 380 U.S. 524 (1965).
192
Justice Douglas in his dissent stated, “The position that Congress did not intend to change the
common-law rule of judicial immunity ignores the fact that every member of Congress who spoke
to the issue assumed that the words of the statute meant what they said and that judges would be
liable. . . . Yet despite the repeated fears of its opponents, and the explicit recognition that the
section would subject judges to suit, the section remained as it was proposed: it applied to 'any
person.' There was no exception for members of the judiciary." (Pierson at 561 – 563).
193
However, others such as Block (1980, 900) contend that the English doctrine of judicial immunity
was "indeed universally accepted in the state courts of the United States.”

236
here is not only because of its obvious implications for the separation of powers but
also for the Court’s reluctance to take on the Vietnam question.
The facts of Mora were central to the politics of the times. In the midst of the
1964 presidential campaign, on August 3, the administration announced that on the
previous day, North Vietnamese gunboats had attached an American destroyer on
patrol in the Gulf of Tonkin off North Vietnam. Following a second attack on
August 4, President Johnson addressed the nations as “President and Commander in
Chief” and announced a series of retaliatory air strikes (Barber 1975). With
assurances that “our response, for the present will be limited and fitting,” that we
were engaged in merely “limited military action,” and that we “still seek no wider
war,” the president informed his radio and television audience that he had asked
Congress “to pass a resolution making it its determination to take all necessary
measure in support of freedom and in defense of peace in Southeast Asia (Barber
1975). Congress was quick to grant the president’s request – on August 5 a
resolution went to Congress and was approved on August 7 by a vote of 82 – 2 in the
Senate and 416 – 0 in the House (110 Cong. Rec. 18471, 18555 (1964)).
At the time the resolution was adopted in the summer of 1964, the most
important issue was whether the legislative and executive branches of the
government would present a solid front to North Vietnam. Despite the warnings of
Senators Morse and Gruening to consider the resolution as a grant of unlimited
authority to wage war, a show of unity at a time of crisis seems to have been

237
uppermost in the minds of most congressmen. Indeed, there was some feeling that
an expression of unity was necessary in order to avoid the actual use of the power of
to wage war, the power whose delegation Morse and Gruening were advising
against. However as events brought the president to the realization that American
forces would have to assume the major burden of honoring the commitment to South
Vietnam, some of those who opposed a widening of the war began to view the
Tonkin Resolution as an unconstitutional delegation of congressional war powers.
(cite Tonkin books)
In written testimony before the Senate Judiciary Subcommittee on the
Separation of Powers in the summer of 1967,
194
Senator Fulbright, contrary to view
he had expressed three summers before, attach the Tonkin Resolution as a “blank
check … piloted through the Senate with … undeliberate speed … giving away …
that which is not our to give.” (Hearings Before the Senate Subcommittee on
Separation of Powers 1967, 47).
The Supreme Court declined an opportunity to hear and decide the
constitutionality of the Tonkin delegation. Over the dissents of Justices Douglas and
Steward, the Court denied certiorari in a dismissal of a suit for a declaratory
judgment that United States military activity in Vietnam was illegal. Justice
Stewart’s dissenting opinion offers a useful framework of questions for discussing

194
Hearings before the Senate Subcommittee on Separation of Powers, 90
th
Cong., 1
st
Sess. (July 19,
1967).

238
the delegation question and, incidentally, for identifying the limits of that issue on
the overall question of the war’s constitutionality. Justice Stewart felt that the Court
should squarely face: the following large and deeply troubling question(s):
… If the Joint Resolution purports to give the Chief Executive authority to
commit United states forces to armed conflict limited in scope only by his
own absolute discretion, is the Resolution a constitutionally impermissible
delegation of all or part of Congress’ power to declare war? (Mora at 935).

Finally, the last and arguably most often recognized separation of powers
case of the Warren era was Powell v. McCormack, 395 U.S. 486 (1969). Powell not
only represented the Warren Court’s last word on separation of powers, it was also
the Earl Warren’s last statement as Chief Justice. This case involved an African-
American Congressman from New York City, Adam Clayton Powell, who was
excluded from taking his seat in Congress even though he was a member-elect.
By all accounts, Congressman Powell was a flamboyant character who did
not shy away from the limelight (Schwartz 1983, 273). Powell’s exclusion from
Congress were based on misappropriations of public funds. A Congressman with a
dubious moral, ethical and legal compass was certainly nothing new, but
Congressman’s Powell’s brazen attitude was certainly noteworthy.
195
Powell was
alleged to have spend funds of the House Education and Labor Committee
…to take a lingering vacation on a Caribbean island with a beautiful woman
on the committee payroll. Powell’s defense was limited to brash statements
suggesting his constituents experience vicarious pleasures through his

195
At the time of this controversy, Congressman Powell was already a fugitive in his own state of
New York in order to avoid paying a judgment against him in a slander case (he was found to have
publicly slandered a woman by calling her a “bag woman) (Schwartz 1983; Powell 2000).

239
exploits – a kind of high living few blacks were able to enjoy (Schwartz
1983, 274).
Regardless of his misdeeds, alleged and proven, Powell’s Harlem district
continued to re-elect him to the House of Representatives. Even after his exclusion,
his districted re-elected him in a special election. The House, acquiescing a bit, said
Powell could reclaim his seat, providing he pay a fine of twenty-five thousand
dollars. It was prior to his special election that Powell brought suit to reclaim his
seat.
The United States District Court dismissed the complaint reasoning that the
House of Representatives was free to determine it’s own membership. Powell
appealed and Judge Warren E. Burger, as a member of the United States Court of
Appeals for the District of Columbia, wrote the opinion of the United States Court of
Appeals affirming the trial court’s decision along with its reasoning. Burger and his
Appellate colleagues felt it perilous to involve the Courts in the inner workings of
Congress.
Powell appealed to the United States Supreme Court. This cases reaches to
the heart of the separation of powers concept for the Court was asked to examine the
deliberations of a coordinate branch of the national government regarding the inner
working of that unit. Another Court might very well have maintained that it was a

240
non-justiciable “political question.”
196
Chief Justice Warren, writing for the court
clearly saw no justiciability problem.
A fundamental principle of our representative democracy is, in Hamilton’s
words, “that the people should choose whom they please to govern them…”
As Madison pointed out in the convention, this principle is undermined as
much by limiting whom the people can elect as by limiting the franchise
itself. In apparent agreement wit this basic philosophy, the Convention
adopted his suggestion limiting the power to expel. To allow essentially the
same power to be exercised under the guise of judging qualifications, would
be to ignore Madison’s warning.

The Court determined that the meaning of the Art. I, Section 5 phrase “be the
Judge of the Qualification of its own Members” was that Congress could expel
members, but not exclude them. It did matter that there was a custom of exclusion
and that the court had always acquiesced. The court stated that because “an
unconstitutional action has been taken before surely does not render that same action
any less unconstitutional at a later date…” (Powell at 546 – 547).
As mentioned previously, the Court’s separation of powers focus during the
Warren Era was not on the executive, but on Congress. The institutional clash
however, never reached a point of crisis. Philip Kurland, writing shortly after that
period stated,
The fact is that the Court and Congress were in a great state of tension
during the entire tenure of Chief Justice Warren. One may put the blame on
the one or the other according to one’s disposition. The tension was
unlikely to erupt into a true constitutional crisis, as the relatively passive
reception of the Powell decision indicates, until such time as the president is
prepared to play a role. (Kurland 1970, 39)

196
Colegrove v. Green (1946) stated that the question of population inequality among congressional
districts was a “political question” that courts must not decide for fear of entering “political
thickets.”

241

How did Congress react to the Supreme Court’s interference into it’s internal
workings? It didn’t according to Philip Kurland; he states,
The fact is that the Court and Congress were in a great state of tension
during the entire tenure of Chief Justice Warren. One may put the blame on
the one or the other according to one’s disposition. The tension is unlikely
to erupt into a true constitutional crisis, as the relatively passive reception of
the Powell decision indicates, until such time as the president is prepared to
play a role. For history reveals that despite the absence of power in the so-
called nonpolitical branch, it has been in no real danger of submission
except when Congress and the president join forces, or one or the other
remained totally unconcerned (Kurland 1970, 39).

The Warren Court is not nearly as noted for its separation of powers
jurisprudence as is the Burger and certainly the Rehnquist Courts. However, it is
clear, that even during the Warren years, the future was apparent. More and more,
the Court was being called upon to settle the limits of governmental power and to
referee inter-branch disputes. As the era of permanently divided government slowly
set upon the nation, the Court became of the focus of dispute resolution between the
branches. Archibald Cox, writing in 1968, was quite prescient about the impending
disputes to come,
The doctrine of judicial review vests in the Supreme Court of the United
states a large measure of responsibility for the operation of our political
system, not only in terms of the distribution of governmental power but also
in keeping open the channels of political debate. Prior to 1960, however,
the Court had rarely been concerned with the electoral or legislative process.
During the 1960s, the Warren Court turned the corner. The justices have
now ruled, in constitutional terms, upon eligibility to vote, the
apportionment of representatives, and even a State legislature’s refusal to
seat a successful candidate for office. One can only speculate how far the
trend will carry – perhaps the litigation over the refusal of Congress to seat
Adam Clayton Powell will provide and indication – but it seems clear that a
majority of the present justices conceive it to be one of the self-conscious

242
functions of constitutional adjudication to secure at least some of the basic
democratic elements in the political process (Cox 1968, 114).

IV. The Models
A. Attitudinal Model
Of all the Courts covered in this study, the Warren Court was comprised of
justices identified by attitudinalists as the most liberal. It follows therefore, that the
various natural courts of the Warren Court as a whole were liberal. Table 9 provides
a list of all members of the Warren Court and their Segal/Cover value. The
Segal/Cover Scale is used to represent the relative conservatism/liberalism of all of
the Justices who have ruled in the cases at hand, with a value of -1.00 denoting the
most conservative and 1.00 the most liberal.
197

Table 9. Segal Cover Values of the Warren Court, 1953 – 1969

Justice Segal/Cover
Warren .50
Black .75
Reed .45
Frankfurter .33
Douglas .46
R. Jackson 1.00
Burton -.44

197
Originally designed and calculate by Jeffrey Segal and Albert Cover in 1989, the Segal/Cover scale
uses editorials regarding Justices at the time of their nomination from newspapers across the
country (weighing for readership and balancing for geography) to measure their relative
conservatism/liberalism (Segal and Cover 1989). This measure was expanded in scope and breadth
in 1995 (Segal et. al. 1995). The aggregate results can be found in Epstein et. al. 1996, 451.

243
Clark .00
Minton .44
Harlan II .75
Brennan 1.00
Whittaker .00
Stewart .50
B. White .00
Goldberg .50
Fortas 1.00
T. Marshall 1.00

244
Table 10 provides a list of the natural courts of the Warren Era and their
average Segal/Cover value.

Table 10. Average Segal/Cover Values of Natural Courts of the Warren Era, 1953 – 1969

Natural Court Average Segal/Cover

Warren 1

.39
Warren 2

.36
Warren 3

.42
Warren 4

.37
Warren 5

.48
Warren 6

.48
Warren 7

.50
Warren 8

.55
Warren 9

.66

Table 11 shows the results of an attitudinal analysis of the separation of
powers cases during the Warren Court. The Justices are listed beginning with
Warren, C.J. and then in order of appointment starting with Justice Black and ending
with Justice Thurgood Marshall.
The Warren Court marks the beginning of unanimity and near-unanimity in
separation of powers cases. This is in stark contrast for example, to the Vinson

245
Court who were ideologically homogeneous, but only agreed 11% of the time in
separation of powers cases. Out of the eleven cases, the court voted unanimously
twice: 8 – 0 in Cammer v. United States and 9 – 0 in Wiener v. United States. Four
out of the eleven cases had lone dissenter: 8 – 1 in Banco Nacional de Cuba v.
Sabbatino, Pierson v. Ray and Flast v. Cohen; 7 – 1 in Powell v. McCormack. Two
of the cases had only minor dissents: 6 – 2 in Reid v. Covert and Baker v. Carr. The
Court only split the once, 5 – 4 in United States v. Brown. According to the
attitudinal model, the wider the difference in the Segal/Cover ranking between two
justices, the less likely they are to rule similarly in cases before them (Segal and
Cover 1989; Segal et. al. 1995). Segal and Spaeth state, “Simply put, Rehnquist
votes the way he does because he is extremely conservative; Marshall voted the way
he did because he is extremely liberal” (1989, 64). As we will find with every
Court in this study, the attitudinal model cannot correctly predict any of the
outcomes addressed in the Warren Court. The correlation between ideology and the
voting patterns of Justices in separation of powers cases is non-existent. What we
are confronting here are the inherent methodological problems in the application of
the attitudinal model to separation of powers cases. It is nearly impossible in any
given dispute between two branches of government, to define the “liberal” or
“conservative” preference.
There are no established, consistent positions on the conservative or liberal
ideal of separation of powers. Because one cannot accurately define liberal or

246
conservative behavior in these instances, it is not clear how an attitudinalist would
predict the particular behavior of a particular justice in any of these cases. Short of
arbitrarily assigning liberal and conservative tags on each side of an issue, the
attitudinal model could be only applied by assuming that a Justice voting her
preferences could mean ruling in favor of the branch of government that shares her
values. In other words, the only effective way a Justice’s policy preference could
manifest itself in separation of powers context, would be if she ruled in favor of the
branch of government most closely associated with her philosophy. Still, even that
approach does not produce an expected value. The strategic model, as discussed
below, attempts to use just such an analysis and yields equally unconvincing results.
The second methodological handicap of the attitudinal model is its exclusive reliance
on exogenous preferences, thus, negating from consideration, the endogenous
institutional preferences that could more fully explain the revealed voting patterns.
A discussion of the new institutionalism, below, reveals a more coherent explanation
of judicial behavior in separation of powers cases based on internalized institutional
preferences. In short, separation of powers issues resist exogenous preference
modeling and simply do not conform to attitudinal theories of judicial behavior.
Table 12 shows the percentage correlation rates of Justices of the Warren
Court in separation of powers cases. The top number is the percent agreement and
the bottom number in parentheses is the number of cases ruled on jointly by the two
justices. This analysis is less revealing for the Warren Court than for other Courts in

247
this study, primarily because of the ideological homogeneity on the Warren Court.
The span ranges from moderate to extremely liberal, but does not include any true
conservatives, except for Justice Burton, who only ruled in two of the cases in this
study.

248
Table 11. Attitudinal Analysis of Separation of Powers Cases in the Warren Court, 1953 – 1969

Segal/
Cover
Cammer

8 - 0
Reid
(1957)

6 – 2
Wiener
(1958)

9 – 0
Baker
(1962)

6-2
Arizona
(1963)

5 – 3
Banco
Nacional
(1964)
8 – 1
US v
Brown
(1965)
5 – 4
US v
Johnson
(1966)
7-0
Pierson
(1967)

8 – 1
Flast
(1968)

8 – 1
Powell
(1969)

7-1
Warren

.50 J/c J/c C/e J/c n/p E/j J/c C/j J/c J/c J/c
Black

.75 J/c J/c C/e J/c E/c E/j J/c np J/c J/c J/c
Frankfurter

.33 J/c J/c C/e c/J
Douglas

.46 J/c J/c C/e J/c c/E E/j J/c C/j c/J J/c J/c
Burton

-.44 J/c C/j C/e
Clark

.00 J/c C/j C/e J/c E/c E/j C/j C/j J/c
Harlan II

.75 n/p J/c C/e c/J c/E E/j C/j C/j J/c c/J J/c
Brennan

1.00 J/c C/e J/c E/c E/j J/c C/j J/c J/c J/c
Whittaker

.00 n/p C/e n/p
Stewart

.50 J/c C/E E/j C/j C/j J/c J/c C/j
B. White

.00 E/c j/E C/j n/p J/c J/c J/c
Goldberg

.50 E/c E/j J/c
Fortas

1.00 C/j J/c J/c
T. Marshall

1.00 J/c J/c

249
Table 12. Voting Correlation Rates of Justices of Warren Court in Separation of Powers Cases, 1953 – 1969

Warren Black FrankfurterDouglasBurtonClarkHarlan II Brennan Whittaker Stewart B. White Goldberg Fortas T. Marshall

Warren

* 100
(9)
75
(4)
90
(10)
66.6
(3)
75
(3)
66.6
(9)
100
(9)
100
(1)
71.4
(7)
60
(5)
100
(2)
100
(3)
100
(2)
Black

100
(9)
* 75
(4)
80
(10)
66.6
(3)
75
(8)
55.5
(9)
100
(9)
100
(1)
57.1
(7)
60
(5)
100
(3)
100
(3)
100
(2)
Frankfurter

75
(4)
75
(4)
* 75
(4)
66.6
(3)
50
(4)
100
(3)
66.6
(3)
100
(1)
0
(1)
- - - -
Douglas

90
(10)
80
(10)
75
(4)
* 66.6
(3)
55.5
(9)
60
(10)
80
(10)
100
(1)
62.5
(8)
33.3
(6)
66.6
(3)
66.6
(3)
100
(2)
Burton

66.6
(3)
66.6
(3)
66.6
(3)
66.6
(3)
* 100
(3)
50
(2)
50
(2)
100
(1)
- - - - -
Clark

75
(8)
75
(8)
50
(4)
55.5
(9)
100
(3)
* 62.5
(8)
62.5
(8)
100
(1)
83.3
(6)
75
(4)
33.3
(3)
100
(2)
-
Harlan II

66.6
(9)
55.5
(9)
100
(3)
60
(10)
50
(2)
62.5
(8)
* 60
(10)
100
(1)
62.5
(8)
50
(6)
33.3
(3)
66.6
(3)
50
(2)
Brennan

100
(9)
100
(9)
66.6
(3)
80
(10)
50
(2)
62.5
(8)
60
(10)
* 100
(1)
62.5
(8)
66.6
(6)
100
(3)
100
(3)
100
(1)
Whittaker

100
(1)
100
(1)
100
(1)
100
(1)
100
(1)
100
(1)
100
(1)
100
(1)
* - - - - -
Stewart

71.4
(7)
57.1
(7)
0
(1)
62.5
(8)
- 83.3
(6)
62.5
(8)
62.5
(8)
- * 50
(6)
33.3
(3)
100
(3)
100
(1)
B. White

60
(5)
60
(5)
- 33.3
(6)
- 75
(4)
50
(6)
66.6
(6)
- 50
(6)
* 33.3
(3)
100
(2)
100
(1)
Goldberg

100
(2)
100
(3)
- 66.6
(3)
- 33.3
(3)
33.3
(3)
100
(3)
- 33.3
(3)
33.3
(3)
* - -
Fortas

100
(3)
100
(3)
- 66.6
(3)
- 100
(2)
66.6
(3)
100
(3)
- 100
(3)
100
(2)
- * 100
(1)
T. Marshall

100
(2)
100
(2)
- 100
(2)
- - 50
(2)
100
(1)
- 100
(1)
100
(1)
- 100
(1)
*

250
B. Strategic Model
If the attitudinal model is not sufficient, can we then improve our results by
adding a strategic component? As stated before, Sala and Spriggs have found no
improvement of the model results from strategic consideration. Below, I have
devised a diagram to explain the construction of their inquiry into judicial voting
patterns in separation of powers cases. These results forecast a need for
considerations of inputs specific to an institutional analysis of separation of powers
voting behavior – specifically, concepts of jurisprudential regimes, mission and
institutional maintenance. The conclusion of Sala and Spriggs is clear: The world
is not one dimensional (conservative vs. liberal). It is at least two dimensional and
institutional preference is an excellent candidate to be that additional dimension.
Sala and Spriggs’ result are entirely consistent with the results of this study.
In analyzing a strategic model of the Warren Court’s separation of powers voting,
the results indicate a lack of predictive ability. Table 13 summarizes the results of a
strategic model analysis of the Warren Court’s separation of powers cases.
The two most common methods of applying the strategic model to judicial
decision making are Eskridge scales and game theoretics, however for purposes of
this discussion, I examined the political affiliation of competing branches of
government and attempted to assess the Court’s position relative to that affiliation.
198

198
The examination of more detailed political preferences of Congress and the Presidency through
records of the relevant Congressional Committee, detailed Congressional membership and
Executive branch regulations is ripe for research and conversion to more traditional representations
of the Strategic Model.

251
Table 13 shows the results of a strategic analysis of judicial behavior in the cases at
hand. We begin with an average Segal/Cover number which tells us how the court
would presumably act were it not constrained.
199
Then, by identifying the ruling
parties within Congress and the Executive Branches, I tried to identify any active
constraints on judicial behavior. The results indicate that the strategic model
accurately predicts 4 out of the 11 outcomes. This 36% correlation rate lead to the
conclusion that no predictable political constraints are imposed by the political
system upon the decision making of the Supreme Court in separation of powers
cases.
The key strategic problem in analyzing the Warren Era is the fact that their
was one party control for 7 of the 11 cases at hand. Compounding the difficulty is
the fact that the limits of judicial power was a key question in 10 of the 11 cases.
When the Judiciary, Congress and the Executive are all of the same ideological ilk, it
becomes very difficult to ascertain any push/pull on judicial behavior in separation
of powers cases. Only a new institutional perspective, with its essential component
of preservation of judicial behavior explains why the court ruled in favor of the
judicial power 8 out of 10 times.

199
This Segal/Cover average has been independently derived for this study by calculating the simple
arithmetic mean of the ruling Justices’ Segal/Cover values.

252
Table 13. Strategic Model of Separation of Powers Cases in the Warren Court

President House Senate
Supreme Court
Segal/Cover
Average
Expected
Outcome
Actual
Outcome

Cammer v. U.S. (1956)

R D Even 0.31 J/c J/c

Reid v. Covert (1957)

R D D 0.42 c/J J/c

Wiener v. U.S. (1958)

R D D 0.37 J/e J/e

Baker v. Carr (1962)

D D D 0.41 C/j J/c

AZ v. CA (1963)

D D D 0.50
Cannot
Predict
E/c

Sabbatino (1964)

D D D 0.50 E/j E/j

U.S. v. Brown (1965)

D D D 0.50 c/J J/c

U.S. v. Johnson (1966)

D D D 0.55 C/j C/j

Pierson v. Ray (1967)

D D D 0.55 c/J J/c

Flast v. Cohen (1968)

D D D 0.66 c/J J/c

Powell v. McCormack
(1969)

R D D 0.66 C/j J/c

Key: D = Democrats R = Republican C = Congress J = Judiciary E = Executive
C/e = Court sided with Congress in dispute between Congress and Executive
Boldface = Strategic Model correctly predicts outcome

253
C. Regime (Ruling Coalition) Theory
Table 14 illustrates the results of a regime analysis of the Warren Court’s
separation of powers cases. The results indicate that the ruling coalition theory is
unable to make any prediction in four out of eleven cases, and only correctly predicts
three of the remaining cases, for an overall correlation rate of 27%. The limitations
of this approach in separation of powers cases are similar to the fundamental
problem encountered with both the attitudinal and strategic models. All three
approaches look to exogenous factors in determining judicial decision making
instead of focusing on the endogenous principles which guide the Justices.
A ruling coalition theory of judicial decision making constructs the Court as a
member of the political regime. Justices act as rulers within the political regime and
as such, make decisions which best preserve the stability of the overall system. This
type of systems analysis also allows for the internalization of the preferences of the
Congress and the Executive.
200
In other words, congressional and presidential
influence in decision making is not looked upon as a constraint, as viewed in the
strategic model, but as part of an overall systemic force. An essential byproduct of
the Court’s allegiance with the ruling coalition is the legitimization of the entire
regime, of which the Court is a member (Shapiro 1981, 22-24). This legitimization
function most commonly requires the Court to rule in favor of the ruling elites.
However, Shamir (1990) and others have suggested that the Court will sometimes

200
Table 16 at the end of Chapter 3 has the complete breakdown of party membership in the House
and the Senate for each of the cases in this study.

254
rule against the ruling coalition on minor matters that the Court doesn’t really care
about, just so that its allegiance to the ruling coalition is not patently obvious. We
can distinguish separation of powers cases from that scenario in two ways: first, the
Court has fairly consistently ruled against the ruling coalition (not just once in a
while) and second, these separation of powers cases resulted in landmark rulings, in
other words there is every reason to believe that the Court did care a great deal about
their outcome.
It is important at this point to distinguish between the potential types of
legitimization the Court’s rulings may provide. First there is the legitimization of the
political system, which generally means ruling in favor of the ruling coalition (Dahl
1957). However, as this study shows, it is not the case in separation of powers
issues. Second, there is the legitimization of the constitution which leads to the
preeminence of the rule of law. This adherence to fundamental constitutional
principles is not part of the ruling coalition theory and indeed, negates its basic
tenant. Because one comes to an “either/or” situation, that is, either the Court rules
in favor of the ruling coalition or it follows the rule of law, we are put in the
uncomfortable position of defending a weak hypothesis. The rule of law, on its own,
is certainly problematic and can be too easily dismissed through legal analysis of
separation of powers cases and the seeming disparity among them.
201
While neither
of these traditionally articulated types of legitimization are sufficient to explain the

201
For example, recall the Court’s development (without regard to case law or constitutional
principles) of inferior versus principal executive officers in order to justify its contradictory rulings
in Buckley and Morrison.

255
behavior of the Court in separation of powers cases, the defense of the constitutional
system most accurately describes the Court’s behavior. What is needed is an
institutional construct in which the rule of law is part of a larger construct of the
Court’s mission and goals.
One can summarize the problems of applying a ruling coalitions analysis to
separation of powers cases in the following manner: 1) The Court appears to have a
self-interested role not normally recognized by regime theorists. That is, in
separation of powers cases, the Court protects the judiciary against any and all
coalitions, ruling or otherwise. 2) The Court must decide between ruling elites, not
between rulers and non-rulers, thus there is no clear cut indication as to which way it
should rule, unless there is an overwhelming 2/3 coalition in the Congress. Only two
of the cases at hand presented the court with such a majority in Congress. When
ruling coalitions divide on an issue, it is no longer clear as to which faction
constitutes the effective ruling coalition; in other words the ruling coalition becomes
very difficult to identify. 3) When ruling coalitions divide over an issue, the Court
steps in and makes decisions which have, as their underlying. logic something other
than supporting ruling elites. They appear to have a more fundamental constitutional
and jurisprudential foundation for their decisions.

256
Table 14. Ruling Coalitions Analysis of Warren Court Separation of Powers Cases

President

House Senate
Two-Thirds Majority in
Congress?
Expected
Outcome
Actual
Outcome

Cammer (1956)

R D Even No
Cannot
Predict
J/c

Reid v. Covert (1957)

R D D No
Cannot
Predict
J/c

Wiener v. U.S. (1958)

R D D No
Cannot
Predict
C/e

Baker .v Carr (1962)

D D D No C/j J/c

Arizona v. CA (1963)

D D D No E/c E/c

Sabbatino (1964)

D D D No E/j E/j

U.S. v. Brown (1966)

D D D Yes C/j J/c

U.S. v. Johnson (1966)

D D D Yes C/j C/j

Pierson v. Ray (1967)

D D D No C/j J/c

Flast v. Cohen (1968)

D D D No C/j J/c
Powell v. McCormack
(1969)

R D D No
Cannot
Predict
J/c

Key: D = Democrats R = Republican C = Congress J = Judiciary E = Executive
C/e = Court sided with Congress in dispute between Congress and Executive
Boldface = Ruling Coalition Model correctly predicted outcome
Cannot Predict = The dispute is not with the dominant coalition and/or the dominant
coalition is not clear

257
D. Historical New Institutionalism
Figure 4 is a historical new institutionalist decision tree, establishing a series
of four questions which encompass the ideas of jurisprudential regimes, institutional
maintenance and the mission of the Court. By placing the queries in their specific
order, the chart shows the relative importance of each institutional construct in
relation to separation of powers cases. At each point of the decision tree, a “yes”
answer results in the expected opinion of the court from an institutionalist
perspective. A “no” answer leads to the next question and so on, until a “yes”
answer is reached. If none of the queries along the decision tree address the issue at
hand, than the model fails to predict any outcome. The cases listed in bold type
represent a correctly predicted outcome.
The Warren Court’s separation of powers jurisprudence centered around the
limits and parameters of the judicial power.
202
Therefore, most of the cases rest
along the second branch of the decision tree. Only Sabbatino was predicted
incorrectly. Overall, the decision tree correctly analyzes 9 of 11 cases or 81.8%.
Brown, Johnson and Reid were all decided on a straightforward textual basis.
Arizona v. California represents a significant jurisprudential departure for the Court
among the cases in this study. In that case, the Court approved a new and broad
expansion of Executive power – of the kind generally looked up with great

202
Even some cases that were ostensibly between Congress and the Executive, most notably Wiener v.
United States, were actually decided on the “intrinsic judicial nature” of the commissions set up by
Congress – thus protecting judicial power.

258
skepticism by the Court. As an explanation, the power was delegated by Congress
and did not constitute a “power grab,” but was nevertheless historically expansive.
One of the major drawbacks of the contextual approach in the analysis of
judicial behavior is the sense that one could bring in infinite variable to judge the
outcome of a decision. The separation of powers decision tree attempts to limit this
liability but setting up set of rather rigidly controlled questions. Therefore, when it
does produce an incorrect answer, it does not allow for multiple permutations of
outside facts to color the results. By focusing on the primary components of
jurisprudential regimes, institutional maintenance and mission, this decision tree
attempts to eliminate what could quickly become an endless and ultimately un-
testable hypothesis.

259
Figure 5. Historical New Institutionalist Decision Tree for Warren Court Separation
of Powers Cases: 1953 – 1969

That branch will likely preserve
power without encroachment.
Yes
Yes
Yes
Is there an explicit
textual (i.e.
constitutional) basis of
power for one of the
branches?
Is the Judiciary
involved in the
dispute?
Is the Court being
asked to disrupt an
established power
arrangement?
Is the Court being
asked to legitimize a
new expansion of
power?
Court will refuse new expansion
of power.
Maintain or even expand judicial
power.
Do not interfere with the
established power arrangement.
Yes
No
No
No
No
Cannot predict
Jurisprudential
Regimes
Institutional
Maintenance

Mission of Court
Separation of Powers
case
Brown
Johnson
Reid

Powell
Pierson
Sabbatino
Flast
Cammer
Baker
Wiener

Arizona v. CA

260
V. Conclusion
The Warren Court would be the last court in the modern era to function under
a unified government. The ideological unanimity of Congress and the Executive had
two major ramifications for separation of powers cases. First, there were fewer
“pure” separation of powers disputes between Congress and the Executive. Rather
than power struggles of the kind we will see in the Burger and Rehnquist years, the
cases here are more about the limits of power. Secondly, a unified government
makes ruling coalition and strategic analyses almost impossible, since it is difficult to
assess the strategic and regime pressures on the Court.

261
Table 15. Summary of Warren Court Separation of Powers Cases: 1953 - 1969

Case Branch Holding SOP
Theory
Vote Majority Minority President Sen. House Court’s
Segal/ Cover
Average
Cammer v.
U.S.
350 U.S. 399
(March 12,
1956)

C v. J lawyers are not “officers” of
the court within the ordinary
meaning of the term and are
therefore not covered by the
contempt statute. represents a
narrow construction of
Congress’ attempt to control
the purview of the Judiciary

Power of Federal Courts:

A lawyer is not the kind of
"officer" who can be tried
summarily for contempt under
18 U.S.C. § 401 (2), which
empowers a court of the
United States to punish as
contempt "Misbehavior of any
of its officers in their official
transactions."

8 – 0 Warren
Black
Reed
Frank Douglas
Burton
Clark
Minton
Harlan n/p

Eisenhower D 47

R 47

I 1

ID 1

D 232

R 203

84
th
Cong.

Warren 2
(-1)

0.31

262
Case Branch Holding SOP
Theory
Vote Majority Minority President Sen. House Court’s
Segal/ Cover
Average
Reid v.
Covert
354 U.S. 1
(June 10,
1957)

foreign commitments cannot
relieve the government from
its obligation to operate within
the limits imposed by the
Constitution, and that the
prohibitions of the
Constitution cannot be
nullified by the President or by
the President and the Senate
combined. Constitution is
superior to Treaties.

Form. 6 – 2 Black,
Brennan,
Harlan,
Frankfurter
Warren,
Douglas

(Whittaker
n/p)
Clark,
Burton

Eisenhower D 49

R 47
D 234

R 201

85
th
Cong.

Warren 4
(-1)

0.42
Wiener v.
U.S.
357 U.S. 349
(June 30,
1958)

J v. E Held that the president had no
power under the Constitution
or statute to remove a member
from the War Claims
Commission. The agency’s
task, said the Court, had an
“intrinsic judicial character.”
Congress had explicitly
rejected a legislative option
that would have placed
responsibility with
administration.
Form. 9 – 0 Warren
Black
Frank
Douglas
Burton
Clark
Harlan
Brennan
Whittaker
Eisenhower D 49

R 47

D 234

R 201

85
th
Cong.

Warren 4

0.37
Table 15, Continued. Summary of Warren Court Separation of Powers Cases: 1953 - 1969

263
Case Branch Holding SOP
Theory
Vote Majority Minority President Sen. House Court’s
Segal/ Cover
Average
Baker v.
Carr
369 U.S. 186
(March 26,
1962)

J v. Legislative apportionment is
not a political question and
therefore is justiciable.
6 – 2 Warren
Brennan
Douglas
Stewart
Frankfur
ter
Harlan
Kennedy D 64

R 36
D 262

R 175

87
th

Cong.

Warren 5
(-1)
Arizona v.
California
373 U.S. 546
(June 3,
1963)

C v. E approved a broad delegation of
power which gave unfettered
discretion to the Secretary of
the Interior to apportion
Colorado River water rights.
5 – 3 Black (o)
Clark
Brennan
White
Goldberg

Warren n/p
Harlan
Douglas
Stewart
Kennedy D 66

R 34
D 258

R 176

88
th
Cong.
Warren 7

0.50
Table 15, Continued. Summary of Warren Court Separation of Powers Cases: 1953 - 1969

264
Case Branch Holding SOP
Theory
Vote Majority Minority President Sen. House Court’s
Segal/ Cover
Average
Banco
Nacional de
Cuba v.
Sabbatino
376 U.S. 398
(March 3,
1964)

E v. J The political branch can more
effectively deal with
expropriation than can the
Judicial Branch. Conflicts
between the Judicial an
Executive Branches could
hardly be avoided were the
judiciary to adjudicate with
respect to the validity of
expropriations. Even if the
combination alleged in this
case of retaliation,
discrimination, and inadequate
compensation made the
expropriation here violative of
international law, a judicial
determination to that effect
would still be unwise as
involving potential conflict
with or embarrassment to the
Executive Branch in later
litigation.
8 –1 Harlan (o)

Warren
Black
Douglas
Clark
Brennan
Stewart
Goldberg
White Johnson D 66

R 34
D 258

R 176

88
th
Cong.
Warren 7

0.50
U.S. v.
Brown
381 U.S. 437
(June 7,
1965)

C and
J
The Bill of Attainder Clause
was intended to implement the
separation of powers among
the three branches of the
Government by guarding
against the legislative exercise
of judicial power.
5 – 4 Warren (o)

White
(o)
Clark
Harlan
Stewart
Johnson D 68

R 32
D 295

R 140

89
th
Cong.
Warren 7

0.50
Table 15, Continued. Summary of Warren Court Separation of Powers Cases: 1953 - 1969

265
Case Branch Holding SOP
Theory
Vote Majority Minority President Sen. House Court’s
Segal/ Cover
Average
U.S. v.
Johnson
383 U.S. 169
(Feb. 24,
1966)

the Court held that the Speech
or Debate Clause precludes
judicial inquiry into the
motivation for a
congressman's speech on the
House floor and prevents the
speech from being made the
basis of a criminal charge
against the congressman for
conspiracy to defraud the
government. The Speech or
Debate Clause, according to
the Court was designed to
protect legislators from
executive or judicial
harassment (Johnson at 179).

Johnson D 68

R 32
D 295

R 140

89
th
Cong.
Warren 8

0.55
Pierson v.
Ray,
386 U.S. 547
(April 11,
1967)

J/c Congress did not abolish the
common law principle of
Judicial Immunity when it said
that it makes liable “every
person" who under color of
law deprives another person of
his civil rights, and (2) at
common law for false arrest
and imprisonment.
Funct. 8 – 1 Warren
Black
Clark
Harlan
Brennan
Stewart
White
Fortas

Douglas Johnson D 64

R 36
D 248

R 187

90
th
Cong.

Warren 8

0.55
Table 15, Continued. Summary of Warren Court Separation of Powers Cases: 1953 - 1969

266
Case Branch Holding SOP
Theory
Vote Majority Minority President Sen. House Court’s
Segal/ Cover
Average
Mora v.
McNamara
389 U.S. 934
(Nov. 6,
1967)

rehearing
denied
(Dec. 18,
1967)

The Supreme Court declined
an opportunity to hear and
decide the constitutionality of
the Tonkin delegation. The
Court Denied certiorari in a
dismissal of a suit for a
declaratory judgment that
United States military activity
in Vietnam was illegal.
7 – 2 Warren
Black
Harlan
Brennan
White
Fortas
Marshall
Douglas
Stewart
Johnson D 64

R 36
D 248

R 187

90
th
Cong.

Warren 9

0.66
Table 15, Continued. Summary of Warren Court Separation of Powers Cases: 1953 - 1969

267
Case Branch Holding SOP
Theory
Vote Majority Minority President Sen. House Court’s
Segal/ Cover
Average
Flast v.
Cohen,
392 U.S. 83
(June 10,
1968)

J/c Did Flast, as a taxpayer,
have standing to sue the
government's spending
program? The Court
rejected the government's
argument that the
constitutional scheme of
separation of powers barred
taxpayer suits against
federal taxing and spending
programs. In order to prove
a "requisite personal stake"
in such cases, taxpayers had
to 1) establish a logical link
between their status as
taxpayers and the type of
legislative enactment
attacked, and 2) show the
challenged enactment
exceeded specific
constitutional limitations
imposed upon the exercise
of Congressional taxing and
spending power. The Court
held that Flast had met both
parts of the test.

Func. 8 – 1 Warren
Black
Douglas
Brennan
Stewart
White
Fortas
Marshall

Harlan Johnson D 64

R 36
D 248

R 187

90
th
Cong.

Warren 9

0.66
Table 15, Continued. Summary of Warren Court Separation of Powers Cases: 1953 - 1969

268
Case Branch Holding SOP
Theory
Vote Majority Minority President Sen. House Court’s
Segal/ Cover
Average
Powell v.
McCormack
395 U.S. 486
(June 16,
1969)

C and
J
The Court determined that the
meaning of the Art. I, Sec. 5
phrase “be the Judge of the
Qualification of its own
Members” was that Congress
could expel members, but not
exclude them. It doesn’t
matter that there was a custom
of exclusion and that the court
had always acquiesced. The
court stated that because “an
unconstitutional action has
been taken before surely does
not render that same action
any less unconstitutional at a
later date…”
Form. 7 – 1 Warren
Black
Douglas
Harlan II
Brennan
B. White
T. Marshall
Stewart Nixon D 57

R 43
D 243

R 192

91
st
Cong.
Warren 9
(-1)

0.66

Table 15, Continued. Summary of Warren Court Separation of Powers Cases: 1953 - 1969

269
The Natural Courts of the Warren Era
203

October 5, 1953 – June 23, 1969

Warren 1

October 5, 1953 – March 28, 1955

Members: Warren (appointed October 5, 1953), Black, Reed, Frankfurter,
Douglas, R. Jackson (died October 9, 1954), Burton, Clark, Minton

Warren 2

March 28, 1955 – October 16, 1956

Members: Warren, Black, Reed, Frankfurter, Douglas, Burton, Clark, Minton
(retired October 15, 1956), Harlan II (appointed March 28, 1955)

Warren 3

October 16, 1956 – March 25, 1957

Members: Warren, Black, Reed (retired Feb. 25, 1957), Frankfurter, Douglas,
Burton, Clark, Harlan, Brennan (appointed Oct. 16, 1956)

Warren 4

March 25, 1957 – October 14, 1958

Members: Warren, Black, Frankfurter, Douglas, Burton (retired Oct. 13, 1958),
Clark, Harlan II, Brennan, Whittaker (appointed Mar. 25, 1957)

203
Epstein, Segal, Spaeth and Walker 2003.

270
Warren 5

October 14, 1958 – April 16, 1962

Members: Warren, Black, Frankfurter, Douglas, Clark, Harlan II, Brennan,
Whittaker (retired March 31, 1962), Stewart (appointed April 16,
1962)

Warren 6

April 16, 1962 – October 1, 1962

Members: Warren, Black, Frankfurter (resigned August 28, 1962), Douglas,
Clark, Harlan II, Brennan, Stewart, B. White (appointed April 16,
1962)

Warren 7

October 1, 1962 – October 4, 1965

Members: Warren, Black, Douglas, Clark, Harlan II, Brennan, Stewart, B.
White, Goldberg (appointed October 1, 1962, resigned July 25, 1965)

Warren 8

October 4, 1965 – October 2, 1967

Members: Warren, Black, Douglas, Clark (resigned June 12, 1967), Harlan II,
Brennan, Stewart, B. White, Fortas (appointed October 4, 1965)

Warren 9

October 2, 1967 – June 23, 1969

Members: Warren (resigned June 23, 1969), Black, Douglas, Harlan II, Brennan,
Stewart, B. White, Fortas (resigned May 14, 1969), T. Marshall
(appointed October 2, 1967)

271
Cases Cited
Baker v. Carr, 369 U.S. 186 (1962).
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).
Barenblatt v. United States, 360 U.S. 109 (1959).
Bond v. Floyd, 385 U.S. 116 (1966).
Cammer v. United States, 350 U.S. 399 (1956).
Flast v. Cohen, 392 U.S. 83 (1968).
Hutcheson v. United States, 369 U.S. 599 (1962).
Pierson v. Ray, 386 U.S. 547 (1967).
Powell v. McCormack, 395 U.S. 486 (1969).
Reid v. Covert, 354 U.S. 1 (1957).
United States v. Johnson, 383 U.S. 169 (1966).
United States v. Brown, 381 U.S. 437 (1965).
Watkins v. United States, 354 U.S. 178 (1957).
Wiener v. United States, 357 U.S. 349 (1958).

272
Chapter 4

The Burger Court:

Game, Set and Match
1969 – 1986

I. Introduction: The Supreme Court as Point of Political Opposition
After the dramatic and often tumultuous years of the Warren Court, the
make-up of the Burger Court was intended not only to turn the Court to the right, but
to settle a country anxious of changes handed down by a high court that seemed
often far ahead of the polity. While the Burger Court, on average was indeed more
conservative than the Warren Court, it was not, by any measure, a conservative
revolution. Journalist and historian, Anthony Lewis, writing in 1983 summed it up
best,
When Warren E. Burger succeeded Earl Warren … many expected to see
the more striking constitutional decisions of the Warren years rolled back or
even abandoned….It is fourteen years later as I write. Six members of the
Warren Court are gone, replaced by nominees of Republican president:
Nixon, four; Ford, one; Reagan, one. And what had happened to those
controversial Warren Court doctrines? They are more securely rooted now
than they were in 1969, accepted by the Burger Court as the premises of
constitutional decision-making in those areas (1983, vii).

It was during the Burger years, that the norm of mixed government became
entrenched. There had never been a time like it in American History. While a
Republican controlled the Presidency 80% of the time during the Burger era, the

273
Republicans never controlled both houses of Congress. The closest they came was
to control the Senate during the first six years of the Reagan administration. So, as
the Democrats nursed their wounds and fought to overcome their foibles, the
Republicans surveyed their successes of retaining executive control of government.
However, for all this success, the “Republicans failed to establish the political
hegemony over the national political process that they had historically enjoyed.
Thus, they lacked the political wherewithal to enact national policies reflecting their
party’s positions and priorities” (Lamb and Halpern 1991, 11).
204

The Burger Court served as a point of political opposition to the dominant
party of the day – the Republicans. Not since the Roosevelt years and the early
struggle over the legitimation of the bureaucratic state, had any president defined his
candidacy and presidency at least partially in terms of their opposition to the
Supreme Court. The Burger Court, however would be a foil for both Richard Nixon
and Ronald Reagan. Indeed the Court would act as a prompt to much of the political
doctrine championed by each of these presidents (see generally Lasser 1988). The
examples are well known. Richard Nixon’s “Southern Strategy” was a direct
countermand to the Warren Court’s decision protecting criminal defendants and
racial minorities (Field 2003; Snyder 2000). Likewise, Ronald Reagan’s

204
For theoretical implications, see Sundquist, James L. 1988. “Needed: A Political Theory for the
New Era of Coalition Government in the United States.” Political Science Quarterly. 103: 613 –
535.

274
conservative social agenda was based largely on the impression that “activitist”
judges were going against the wishes of the American people in their rulings
concerning school prayer, abortion, affirmative action and school desegregation.
This vocal opposition to the decisions of the Judiciary by the Executive
would not and did not result in immediate success. Nixon’s plans to pack the court
with strict constructionists was met with strong resistance from Congress. Justice
Abe Fortas’ resignation
205
on May 16, 1969 gave Nixon the opportunity to appoint
Clement F. Haynsworth, Jr., Chief Judge of the U.S. Circuit Court of Appeals for the
Fourth District.
206
Haynsworth was infamous for his restrictive view of school
desegregation and had a reputation for being soft on improprieties involving
financial conflicts of interest (Yarbrough 2000, 248 – 249). After weeks of heated
debate, the Senate rejected Haynsworth in a vote of 55 to 45. Nixon, furious and
defiant became more determined than ever to pack the court. His next nominee
would prove even more controversial (Fish 1989, Field 2003).
G. Harrold Carswell, a six year veteran of the federal district bench in
Tallahassee and six month newcomer to the Fifth Circuit Court of Appeals had
plenty of his own baggage (Yarbrough 2000, 240). While running for political office

205
In the spring of 1969, Life magazine revealed that Justice Fortas had received a yearly $20,000 fee
from the Family Foundation of Louis Wolfson, then serving a prison term for selling unregistered
stock. The public furor was just an additional burden on already flamboyant and controversial
judicial career and Fortas was forced to resign (Mason and Stephenson 1987, 6 – 7).
206
For an excellent comparison of the nominations of John J. Parker by Herbert Hoover, Haynsworth
by Nixon and Robert H. Bork by Ronald Reagan, see “Perspectives on the Selection of Federal
Judges: Spite Nominations to the United States Supreme Court: Herbert C. Hoover, Owen J.
Roberts, and the Politics of Presidential Vengeance in Retrospect,” by Peter G. Fish (1989).

275
in 1948 he had said on the record, “I yield to no man as a fellow candidate or as a
fellow citizen in the firm, vigorous belief in the principles of White Supremacy, and
I shall always be so governed.” (quoted in Mason and Stephenson 1987, 6).
Although Carswell would later disavow his racist ideology, critics would attack his
nomination on the grounds of his mediocrity
207
and Carswell was rejected 51 to 45,
with even some of the most prominent members of the President’s own party voting
against him (Fish 1989, 552 – 554). It was in this climate and under these
contentious circumstances that Nixon finally turned to Justice Burger’s longtime and
perhaps best friend, Harry A. Blackmun who promptly confirmed and sworn in on
June 9, 1970.
208
Although Blackmun’s nomination was one of political expediency,
the Court would continue serve as point of direct political opposition for the
Republican party.
209

The persistence of mixed government during the Burger Years (and up until
the final years of the Rehnquist Court) has contributed to the politicization of the

207
Accepting the criticism, Nebraska Senator Hruska tried to convert it into an asset: “Even if he is
mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little
representation, aren’t they, and a little chance? We can’t have all Brandeises, Cardozos, and
Frankfurters and stuff like that there.” (quoted in Mason and Stephenson 1987; Yarbrough 2000,
249). This type of faint praise would be echoed decades later in President Geoge W. Bush’s
nomination of his White House Counsel and former personal lawyer, Harriet Myers.
208
For more on Blackmun, see below.
209
Defenders of Judges Haynsworth and Carswell, frustrated by defeat, launched a counteroffensive,
calling for impeachment of libertarian Justice William O. Douglas. When Congressman and future
President Gerald Ford, leader of the drive, was asked to define “impeachable offense,” he replied,
“The only honest answer is that an impeachable offense is whatever a majority of the House of
Representatives considers it to be at a given moment in history; conviction results from whatever
offense or offenses two-thirds of the other body considers to be sufficiently serious to require
removal of the accused from office.” (quoted in Mason and Stephenson 1987). This fluid definition
of impeachable offence failed when applied to Justice Douglas.

276
nomination process for the federal judiciary. When a party is unable to control both
the Executive and Legislative branches, control of the judiciary greatly increases in
value. Both Nixon and Regan desired a judiciary that reflected their political views,
in part because they faced legislatures, which did not.
The importance of Court vacancies, and of the opportunity to influence the
direction of American constitutional law through judicial nominations, was
greater for both parties precisely because neither one dominated the national
political process (Lamb and Halpern 1991, 11).

The constant partisan battles over every conceivable aspect of public policy
laid contentious ground for a battle that was already, by its nature, contentious. Add
to this, the reality that within a mixed government, it is often the judiciary that casts
the deciding vote on governmental policies and agendas – and the parties are faced
with higher stakes in the judicial nominating process than they had ever faced.
It is incontrovertible that presidents have always tried to nominate individuals
to the Court who possessed and avowed political views similar to their own.
However, as many pundits, scholars and citizens alike have noted, the judicial
selection process became notably politicized during the modern Republican era
(Goldman 1989). Partly, Republicans were reacting to what they perceived as the
“liberal excesses” of the Warren Court, but the reason they sought control of the
Court with a vengeance and made it a priority in their political agenda was because
the federal judiciary had become a more critical outlet through which to realize
Republican priorities. All parties knew this to be true. Before his appointment to the
Supreme Court, Warren Burger

277
… told an audience at a judicial conference that close Warren Court civil
liberties decisions could be undone “by so simple a happening as the advent
of one or two Justices” (New York Times, October 5, 1969 as quoted in
Yarbrough 2000, 4).

The Republicans clung especially to the court because they were most often
not the party of the majority and thus focused on the only countermajoritarian
institution within government. The Republican party simply did not have the support
of the majority of the people and thus their control of the Court became crucial.
210

During this era of true mixed government, no governing coalition would appear. The
nascent conservative revolution would be 20 years away from capturing the
imagination of the public and policy makers. Thus, the Burger Court, devised by the
Executive to counter the Warren Revolution, had in fact no prevailing public
philosophy with which to undue the work of the Warren Court.

II. The Burger Court
The Burger Court was indeed a court of transition and encompassed Justices
of many historical eras. No Justice exemplified that more than Hugo Lafayette
Black, who was appointed my president Roosevelt in 1937 and served through the
Hughes, Stone, Vinson, Warren and Burger eras. Likewise, William Orville
Douglas, appointed by Roosevelt in 1939, represented a critical link to the New Deal
era and the development of the Supreme Court in the modern era.
211
And while the

210
As late as 1986, the Democrats still held a 10 point preference lead against the Republicans among
the American people (Lamb and Halperin 1991, 13 citing Lineberry 1989).
211
Douglas filled the seat on the Supreme Court previously held by the legendary Louis Brandeis. At
the age of 40, Douglas was the youngest person appointed to the Court since 1811. He served

278
Burger Court was intended (by the Executive at least) to overturn many of the
innovations of the Warren Court, there was a large enough contingency of holdover
Warren Court justices to ensure that changes would not be so easily won. Therefore,
despite the hopes of conservatives and even the predictions of Warren Burger
himself, the Burger Court did not represent the counter revolution even “by the
advent of one or two Justices.” Even though Justices Harlan, Brennan, Stewart,
White and Marshall were hardly a monolithic voting bloc, they did nevertheless
possess and represent a strong institutional echo of the Warren Court. Justice
Brennan, especially felt a strong sense of loyalty to the Warren Revolution of which
he been an integral part.
212

The new justices, ushered in by Presidents Nixon and Reagan were up against
a jurisprudential wave, begun during the New Deal and intensified during the Warren
era that would be extremely difficult to overcome. In the end, it would not be clear
that these new Justices would in fact have the desire to turn back precedent.

longer on the Court than any other person in its history. In his more than thirty-six years on the
bench, he wrote over 1,200 opinions. He was a strong civil libertarian. Though widely
acknowledged to have a brilliant mind, Douglas seldom produced opinions of great analytic power.
His opinions often served as blunt instruments that quickly did away with legal etiquette and more
significantly with established jurisprudence. “During the years he served with Chief Justice Burger,
Douglas was frequently cast in the role of an uncompromising dissenter, lamenting the Court’s
complicity in the stifling of individual spirit. In virtually all areas, Justice Douglas argued for
broader and stronger interpretations of the Bill of Rights and Civil War Amendments than were
acceptable to his brethren. Never a congenial colleague on the Court, he established warmer
personal relations with some of the Nixon appointees than he had enjoyed with fellow justices who
more closely shared his ideological orientation.” (Blasi 1983, 246)
212
During the Burger Court, Brennan focused on advocating a broader reading of the Bill of Rights or
the Fourteenth Amendment than his more conservative or more moderate fellow justices. “On these
occasions, Brennan often writes long, thoroughly researched sometimes angry, separate opinions
lamenting the Court’s failure to live up to the promise of the Warren Court’s legacy” (Blasi 1983,
243).

279

A. Chief Justice Warren E. Burger
Warren E. Burger’s early life never indicated the heights that he would
receive in his legal life. Born to a middle class Protestant German family in St. Paul,
Minnesota in 1907, Burger was an average student in high school and attended the
University of Minnesota and later St. Paul College of Law (now the William
Mitchell College of Law). While in law school, he supported himself as an
insurance salesman. The first 20 years of his legal practice were spent uneventfully
in the Twin Cities. What would catapult Burger into the federal judiciary was his
activism as a Republican.
213
His support of Eisenhower during 1952 election won
him a post to the Department of Justice and very quickly thereafter in 1955, a seat on
the U.S. Court of Appeals for the District of Columbia. Burger’s 13 years of
conservatism on the Court of Appeals made him and an ideal choice to be Nixon’s
new Chief Justice. Opponents to his nomination did not materialize, mostly due to
the opposition’s relief that Nixon had not nominated a more conservative candidate.
On a 74 – 3 vote, Burger was confirmed and became Chief Justice on June 24, 1969
(Yarbrough 2000; Lamb and Halperin 1991).
Interestingly, for this study, Burger’s most significant opinions came in the
area of separation of powers – and specifically inter-branch disputes (Yarbrough

213
As a founder of the Minnesota Young Republican’s, Burger was instrumental in getting
Republican Harold Stassen elected governor of Minnesota in 1938. Burger was a strategic political
player. Although he managed Stassen’s presidential bid in 1952, he did not hesitate to throw his
support to Eisenhower when it became clear that the General was the leading contender for the
nomination (Yarbrough 2000; Lamb and Halperin 1991).

280
2000, 81; Lamb 1991, 134). While each of these cases will be discussed and
analyzed at greater length below, to merely list his landmark decisions in this area is
to in fact revisit the hallmarks of separation of powers jurisprudence: U.S. v. Nixon
(1974)
214
, INS v. Chadha (1983)
215
, Bowsher v. Synar (1986)
216
. In these cases and
others, Burger would put forth a narrow formalistic construction of the powers of the
three branches of government. Beyond inter-branch disputes, Burger produced a
group of opinions which further refined the definition and use of the Speech and
Debate Clause (Article I, § 6) of the Constitution: United States v. Brewster (1972),
Eastland v. Serviceman’s Fund (1975), Hutchinson v. Proxmire (1979), Helstoski v.
Meanor (1979). Burger’s focus in these cases represents separation of powers
protections for Congress rather than separation of powers limitations.
217

214
Although the Nixon case strengthened the power of judicial review, many of Burger’s decisions
indicate a strong penchant for restricting access to the courts. It is significant here however, that a
lifelong partisan and advocate of presidential power, nevertheless sides with his own institution
when confronted.
215
The Court confronted the constitutionality of the legislative veto in Chadha, where Burger’s
majority opinion announced that the veto provision of the Immigration and Nationality Act was
unconstitutional. In his typically straightforward manner, the Chief explained that Article I
established a bicameral legislature, that a majority of each house must approve of all laws passed,
and that the president must be presented with, and have an opportunity to approve or disapprove,
all legislation before it becomes law. That process was imperative to the framers of the
Constitution and is fundamental to the concept of separation of powers. Bicameralism and the
presidential veto were adopted by the framers, Burger argued, to ensure that statutes were not
enacted without full and careful consideration by nationally elected officials.
216
Burger struck down a major provision of the Balanced Budget and Emergency Deficit Control Act
of 1985 (the Gramm-Rudman-Hollings Act), which sought to control the growth of the federal
budget deficit. Burger found that the provision violated the doctrine of separation of powers
because it assigned to the comptroller general, an agent of Congress, functions that properly
belonged to the executive branch.
217
During an era of American politics where political focus was on the growth of executive power
relative to that of the legislature, Burger’s opinions in these cases reflected his greater concern with
political abuses by members of Congress than with legislative independence and power. “In light
of the legal doctrine he advanced for the Court majority in these cases, and the fact that the Court

281

B. Justice Harry A. Blackmun
Born in Nashville, Illinois and raised in St. Paul, Minnesota, Harry
Blackmun’s most notable legal position prior to joining the Federal Judiciary was as
in-house counsel to the much admired Mayo Foundation and the Mayo Clinic of
Rochester, Minnesota. After serving on Eight Circuit Court of Appeals (he was
nominated by President Eisenhower in 1959) for 11 years, Blackmun joined the
Supreme Court in 1970, one year after one of his closest and oldest childhood
friends, Warren E. Burger was appointed Chief Justice.
218
Nixon turned to
Blackmun when his consecutive nominations of Judges Clement Haynsworth and G.
Harrold Carswell failed to win Senate confirmation.
219
Blackmun was nominated on
April 15, 1970, confirmed unanimously a month later and took his seat on June 9,
1970.
Wasby (1991) has divided Blackmun’s philosophy on the separation of
powers into three categories: access; deference to legislature and executive; and
deference to bureaucracy. Blackmun exhibited flexibility in his approach to what
constituted a case or controversy, more so than his conservative colleagues and
showed a greater willingness to make access to the courts available. He believed that

has handed down relatively few speech or debate clause decisions throughout its history, Burger
out a niche for himself in this area of American constitutional law.” (Lamb 1991, 138).
218
Blackmun and Burger were friends from the time they were five years old and Blackmun was best
man at Burger’s wedding (Wasby 1991, 63).
219
Blackmun was apparently not bothered by his ‘third-choice’ status, resulting from Nixon’s failed
“Southern Strategy” and referred to himself as “Old Number 3” (Wasby 1991, 64).

282
Congress was the preferred policymaker and when judges found it necessary to
invalidate a law, the should do so “with the least disruption of congressional
objectives (Bowsher v. Synar, 478 U.S. 714,780 (1986)). Blackmun also showed
deference to the executive, particularly in its discretion to limit travel for internal
security reasons.
220

Justice Blackmun wrote three separation of powers opinions, invoking a
functionalism interpretation. Mistretta, 488 U.S. 361; Freytag, 501 U.S. 868;
Bowsher, 478 U.S. at 776 (Blackmun, J., dissenting). Justice Blackmun also has
joined functionalism based opinions. Schor, 478 U.S. 833; Morrison, 487 U.S. 654.
He also has joined some formalist opinions. Buckley, 424 U.S. 1 (per curiam);
Chadha, 462 U.S. 919; Metropolitan Washington Airports Auth., 501 U.S. 252.
C. Justice John Paul Stevens
Appointed by Ford in November 1975, Justice John Paul Stevens, replaced
the retiring William O. Douglas. Stevens was born in Chicago, Illinois, on April
20, 1920. He was graduated from the University of Chicago in 1941. He fought in
World War II and upon completion of the war attended Northwestern University
School of Law. He served as law clerk to Justice Wiley B. Rutledge during the

220
He strongly supported the executive exercise of congressionally delegated power – first in
Kleindienst v. Mandel (1972), to exclude, even in the face of First Amendment claims, those who
would come to his country to speak, as long as the executive provided “a facially legitimate and
bona fide reason” (408 U.S. at 770) and then in Haig v. Agee (1981), to withdraw a U.S. citizen’s
passport.

283
1947-1948 Term. From 1949 to 1970, he practiced law in Chicago.
221
The only
interruption during that time was a brief period during 1951, when he served as
Associate Counsel to the House Judiciary Committee’s Subcommittee on the Study
of Monopoly Power. In 1970, President Nixon appointed Stevens to the United
States Court of Appeals for the Seventh Circuit. Stevens was nominated to the Court
by President Ford and was confirmed by the Senate on December 17, 1975.
While the Burger Court would decide several momentous separation of
powers cases, Stevens would not play an important role in most of them. Most often,
he was part of the silent majority with only the rare brief concurrence (Cannon
1991, 350). There are two notable exceptions. The first was his long and complex
concurrence in Bowsher v. Synar (1986). Stevens argued that Congress’ power
under the Gramm-Rudman-Hollings Act to remove the comptroller general made an
official performing an executive function subservient to Congress. He rejected the
majority’s formalism and argued instead that while the comptroller general is a part
of the legislative branch, his function could not be clearly categorized – reality was
more important than labels. He argued that the Gramm-Rudman-Hollings Act was
unconstitutional, however, because the comptroller general’s job was not clerical but
instead involved sophisticated policymaking, and the first sentence of Article I
requires that Congress itself exercise all legislative power that is exercised by the

221
In the early 1950s, Stevens taught on the law faculty at Northwestern and Chicago Universities.
From 1953 to 1955, Stevens was a member of the Attorney General’s National Committee to Study
the Antitrust Laws.

284
legislative branch.
222
The second would be his authorship of the Court’s unanimous
opinion in Clinton v. Jones (1997)
223
during the Rehnquist era. Stevens’ experience
and non-partisan reputation were critical to the essentially conservative court during
the politically sensitive case and politically sensitive environment of the Kenneth
Starr era.
Justice Stevens has written twice in separation of powers cases, displaying a
moderate degree of formalism. Metropolitan Washington Airports Auth., 501 U.S.
252; Bowsher, 478 U.S. at 736 (Stevens, J., concurring) (following formalism-based
framework). Justice Stevens also has joined in opinions following some degree of
formalism. Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam); Chadha, 462 U.S. 919.
Justice Stevens has joined the majority in a number of functionalism based opinions.
Schor, 478 U.S. 833; Mistretta, 488 U.S. 361; Morrison, 487 U.S. 654; and Freytag,
501 U.S. 868.

D. Justice William H. Rehnquist
William H. Rehnquist’s 33 years on the Supreme Court of the United States
coincided with the most active era of separation of powers jurisprudence in the
modern era. Although the branches have seen periods of far more grave
encroachments (most notable the New Deal), it was during the Burger and Rehnquist

222
Stevens writes, “the notion that the removal power … automatically creates a ‘here and now
subservience’ to Congress … is belied by history” and by statutory provisions (478 U.S. at 739).
223
Justice Stevens, writing for the court found that separation of powers principles did not grant a
sitting president immunity from civil litigation arising out of events which transpired prior to his
taking office.

285
eras that these disputes became center stage on the Court’s agenda. William
Rehnquist was essential in the institutional attitude the Court took towards these
cases. A life long Republican and partisan, Rehnquist would put aside much of his
partisanship to ensure near unanimous and often unanimous votes on separation of
powers cases under his watch
224
(Calabresi 2004; Pryor 2002).
Rehnquist was born in Milwaukee, Wisconsin in 1924. He graduated from
Stanford Law School in 1952. After clerking for Justice Robert Jackson, Rehnquist
would practice law in Phoenix, Arizona until he was appointed assistant attorney
general for the Justice Department’s Office of Legal Counsel in Richard Nixon’s
administration. When he was nominated to the Court in 1971, there was a fear that
Rehnquist’s ties to the executive were too strong.
It is always fascinating to revisit the confirmation hearings of notable
Supreme Court Justices and to attempt to reconcile the predictions with outcomes.
In his testimony at Rehnquist’s nomination hearings in 1971, Gary Orfield
contended,
While [his] writings suggest that he would narrowly interpret some sections
of the Bill of Rights and the Fourteenth Amendment, he has often read the
Constitutional grants of power to the executive branch very broadly indeed.
He is loath, for example, to put any limits on the government’s power to spy
on its own citizens … [H]e expands and contracts the Constitution like an
accordion to accommodate his extremely conservative political views”
(Hearings 1971, 445). Citing Rehnquist’s record as assistant attorney
general, Orfield suggested that, if confirmed, “the nominee would stretch the
accordion wide for executive power.”

224
See Chapter 5 for in-depth analysis of the Rehnquist era and cases.

286
The underlying question with Justice Rehnquist was how deferential he in
fact was towards presidential power. In 1987, Rehnquist recalled that, when he was
Justice Jackson’s clerk and the Court was preparing to the Steel Seizure Case,
“my instincts favored the position of the steel companies, … [and] I had
gotten the impression that the balance of power within the federal
establishment had shifted markedly away from Congress and toward the
president during the preceding fifteen years and that this trend was not a
healthy one” (Rehnquist 1987, 63).

The question of Rehnquist’s support for the executive is a tricky one. Several
of his opinions could be viewed as loyal support of the executive. Although he did
not participate in United States v. Nixon (1974), he inferred a constitutional right of
executive privilege based upon the principle of separation of powers.
225
In 1981, he
wrote opinion for the Court wherein the Court unanimously agreed to uphold the
executive orders issued by President Carter pursuant to the executive agreement with
Iran that provided for the freeing of the American hostages.
226
He referred
approvingly to Felix Frankfurter’s assertion in the Steel Seizure Case that a
“systematic, unbroken, executive practice, long pursued to the knowledge of
Congress may be treated as a gloss on ‘Executive Power.’”
227
Rehnquist was a
member of the majority when the Court held, by a vote of five to four, that the

225
Nixon v. Administrator of General Services (1977)
226
The agreement required that all legal proceedings involving claims of United States nationals
against Iran be terminated. The executive orders abrogated all claims to Iranian funds, including
those pending in courts, and required banks holding Iranian assets to transfer them to the Federal
Reserve bank of new York to be held or transferred as directed by the secretary of the treasury (Davis
1991, 341).
227
Dames & Moore v. Regan, 453 U.S. at 686 (1981).

287
president has absolute immunity from civil damages liability for acts that are within
his official responsibility.
228
He also argued, albeit unsuccessfully, that absolute
immunity should extend to the president’s aides
229
and to cabinet officers.
230

Ultimately, the most striking feature of Rehnquist’s separation of powers
jurisprudence however is his dedication to an often rigid notion of separated powers
of the national government (Davis 1991).
231
Rehnquist even attempted to revitalize
the nondelegation doctrine – protesting the flow of Congressional power to the
Executive (Bybee and Samahon 2006; Calabresi 2004; Claeys 2004).
232

Many scholars have posed the great mystery of both the Burger and
Rehnquist Courts as their attitude towards separation of powers (Chemerinsky 1987;
Magill 2004). Both Burger and Rehnquist had available to them the language of
original intent and yet they used it only selectively (Claeys 2004). The Rehnquist
Court especially was supposed to be a revolution (Magill 2004).
Yet there was no revolution. The Rehnquist Court has declined several
invitations to breathe more life into originalism through separation of

228
Nixon v. Fitzgerald (1982)
229
Harlow v. Fitzgerald (1982)
230
Butz v. Economou (1978)
231
For example, Rehnquist joined the Court in striking down congressional involvement in appointing
members of the Federal Election Commission (Buckley v. Valeo, 1976). He joined the majority in
invalidating, as a violation of the separation of powers, the section of the Gramm-Rudman-Hollings
Act that assigned the executive powers to the comptroller general, who is removable only by
Congress (Bowsher v. Synar, 1986).
232
Rehnquist argued that the Court has a “duty to invalidate unconstitutional delegations of legislative
authority …” (Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. at 686).
In that case, he also opined that the Occupational Safety and Health Act of 1970 exceeds Congress’
power to delegate legislative authority to nonelected officials and in a later case claimed that
important choices of social policy must be made by elected representatives rather than nonelected
officials in the executive branch .
232
Even his dissenting opinion in INS v. Chadha (1983) also
suggests his opposition to the delegation of legislative power to the executive

288
powers law. In the process, the Court has continued a trend that has
frustrated constitutional scholars for years, veering erratically between
originalist and non-originalist interpretive methodologies with barely any
explanation. Did the Justices on the Burger Court take originalism seriously
from the beginning? If not, why have the Burger and Rehnquist Courts
applied originalism at all? … The Burger and Rehnquist Courts have used
originalism and non-originalism selectively (Claeys 2004, 407).

Indeed, in comparing the Justice Rehnquist’s separation of powers
jurisprudence, it seems that one is dealing with two completely different attitudes.
As an alternate way to explain the Court's constitutional jurisprudence, it has
been suggested that there have been two "Rehnquist Courts." We examine
the possibility that there may have been not only two Rehnquist Courts, but
also two William Rehnquists - Rehnquist the Associate Justice and
Rehnquist the Chief Justice. n146 On this account, as the dissenting "Lone
Ranger" Associate Justice, Rehnquist took a strong view of the separation of
powers. As Chief Justice, with institutional incentives to obtain consensus
and vote with the majority, he assumed a less formal approach to the
separation of powers (Bybee and Samahon 2006, 1759).

Chief Justice Rehnquist has written two separation of powers opinions. He
wrote the opinion in Morrison v. Olson, 487 U.S. 654 (1988) (reaching functionalist
result, while retaining some degree of formalism in decisionmaking framework).
Justice Rehnquist, joined by Justice White, also dissented from the majority's strong
formalism in Chadha. 462 U.S. at 1013 (dissenting on severability issue only). In
addition to these cases, as both an associate justice and the Chief Justice, he joined in
a number of functionalism based opinions. Schor, 478 U.S. 833; Mistretta, 488 U.S.
361; Metropolitan Washington Airports Auth., 501 U.S. 252 (White, J., dissenting);
Freytag, 501 U.S. 868. Chief Justice Rehnquist also has joined a few opinions
invoking a degree of formalism. Buckley, 424 U.S. 1 (per curiam); Bowsher, 478

289
U.S. 714; Public Citizen, 491 U.S. at 467 (Kennedy, J., concurring).

E. Justice Lewis Powell
With a Segal/Cover rating of -.67, Justice Lewis Powell was a man of
naturally conservative instincts, but “who did not let those instincts dominate his
judging. He tended to think about cases in a particularistic fashion, carefully
considering the arguments on both sides of an issue” (Blasi 1983, 250). Born in
1907 in Norfolk, Virginia, Powell graduated from Washington and Lee Law School
in 1931. Except for his service as an Air Force intelligence office in North Africa
during World War II, he would spend the next 40 years as a highly successful
corporate lawyer in Richmond, Virginia. The stable and consistent nature of his
legal career belies Powell’s broad involvement in corporate and civic life.
233

Justice Powell put his stamp on separation of powers law through the
authorship of two majority opinions: United States v. United States District Court
for the Eastern District of Michigan (1972) and Nixon v. Fitzgerald (1982). His
pragmatic view of separation of powers in the national government included the
realization that a broad spectrum of outside forces would constrain the individual

233
Powell participation in a wide range of professional and civic activities was in fact what made him
a political player. He served on the boards of directors of eleven major companies. He was
president of the American Bar Association, the American College of Trial Lawyers, and American
Bar Foundation. He was vice-president of the National Legal Aid and Defender Society and in that
capacity was instrumental in persuading the organized bar to support the idea of publicly financed
legal services for the poor. Powell was one of the most active member of President Johnson’s
Commission on Law Enforcement and the Administration of Justice. He was also a pillar of
Richmond civic life, as chairman of the school board and a voice of moderation during the heated
controversy over desegregation, as president of the Family Services Society, and in the reform of
the city charter. In addition he had a hand in drafting the revised Virginia constitution (Blasi 1983).

290
institutions of government rather than just the other branches of government. For
example, in Nixon v. Fitzgerald, while he made of grant of immunity to president
for office acts – he also offered some natural checks such as public scrutiny in press
and impeachment. He justifies his confidence in these checks by stating the desire to
"maintain the prestige of the presidency" by granting immunity, but that "a
president's traditional concern for his historical stature" would serve to impel any
president to adhere to the law (Nixon v. Fitzgerald).

F. Justice Sandra Day O’Connor
Justice O'Connor, a steady supporter of formalism in separation of powers
cases, wrote a functional opinion in CFTC v. Schor, 478 U.S. 833 (1986)
234
With
this exception, Justice O'Connor has joined several majority opinions, most often
joining opinions following some degree of formalism.
235
Justice O'Connor has joined
the majority in two functionally based opinions – Mistretta and Morrison. Justice
O'Connor also wrote an opinion invoking separation of powers principles in the
standing case, Allen v. Wright, 468 U.S. 737 (1984).

234
Invoking strong functional rhetoric in separation of powers case involving judiciary and right of
non-Article III courts to settle common-law claims.
235
INS v. Chadha, 462 U.S. 919 (1983); Bowsher v. Synar, 478 U.S. 714 (1986); Metropolitan
Washington Airports Auth., 501 U.S. 252; Public Citizen, 491 U.S. at 467; Freytag, 501 U.S. at
892.

291
III. The Cases
The Burger Court marked a profound revitalization of separation of powers
case law. The tipping point of this period was 1976 when the Court’s Appointments
Clause ruling in Buckley v. Valeo. That was just the beginning. Separation of
powers flourished on the Burger Court. There were major pro-separation of powers
decisions: INS v. Chadha, striking down the legislative veto provisions of some 200
federal statutes; Marathon Pipeline, invalidating Congress's creation of scores of
federal bankruptcy judges; Dames & Moore v. Regan, which many think implicitly
departs from the Steel Seizure decision; and Bowsher v. Synar, striking down the
Gramm-Rudman-Hollings deficit Control Act, a major act of Congress.
As discussed previously, the Court is never more animated than when judicial
power is threatened or, even worse, circumvented. The full fury of the Court is on
display in United States v. United States District Court for the Eastern District of
Michigan, 407 U.S. 297 (1972), better known as Keith. This case is key in defining
presidential power and may be in contention once again if litigation against the Bush
Administration comes to fruition. Claiming national emergency powers, the 1968
Crime Control Act allowed for wire tapping with prior judicial approval. This case
raised the constitutional question of whether or not the 1968 Act applied in those
situations where the national government was tapping wires in “national security”
situations. The Attorney General argued that the president of the United States has
the power to tap, in national security matters, without receiving a warrant from the

292
court. The Nixon administration had approved wiretaps to gather intelligence
information deemed necessary to protect the nation from attempts by domestic
organizations “to attack and subvert the existing structure of the Government.” The
actions were taken in the name of the president’s inherent power to protect national
security.
236
The court, voting 8 – 0,
237
held that Fourth Amendment freedoms cannot
be guaranteed if domestic security surveillances are conducted solely at the
discretion of the executive branch. For such surveillance to be constitutional, a
warrant issued by the judiciary is essential.
Writing for the unanimous court, Justice Powell does limit the ruling to
domestic cases,
We conclude that the Government’s concerns do not justify departure in this
case from the customary Fourth Amendment requirement of judicial
approval prior to initiation of a search or surveillance …We emphasize…
this case involves only the domestic aspects of national security. We have
not addressed, and express no opinion as to, the issues which may be
involved with respect to activities of foreign powers or their agents (Keith at
308).

The case of United States v. Brewster, 408 U.S. 501 (1972) would define the
limits of Congressional Immunity and pit the Congress against both the Executive
and the Judiciary. Brewster was a former U.S. Senator who was indicted for taking a

236
The standoff between the Judiciary and the Executive came to a head when during pretrial
proceedings in a federal criminal prosecution in the United States District Court for the Eastern
District of Michigan, the court ordered the government to turn over to the defendants all records of
their conversations overheard by electronic surveillance instituted without a search warrant. The
Sixth Circuit denied the government’s petition for a writ of mandamus to compel the district judge to
vacate the disclosure order. The Supreme Court granted certiorari (Mason and Stephenson 1987,
119).
237
Decided by Burger 3: Burger, Brennan, Stewart, White, Marshall, Blackmun and Powell. Justice
Rehnquist did not participate.

293
bribe. He argued that the speech and debate clause protected him from prosecution
in federal court; the government contended that this action was not ordinary
“legislative business” that was protected by Article 1, §6, and therefore Brewster was
subject to indictment and conviction. The district court dismissed the indictment and
the Department of Justice appealed. In a 6 – 3 opinion, the Court ruled that the
clause did not protect a member of Congress from prosecution for accepting a bribe
to behave a particular way on legislation. Chief Justice Burger, writing for the court,
reversed and remanded the case stating,
It is beyond doubt that the Speech or Debate Clause protects against
inquiries into acts that occur in the regular course of the legislative process
and into the motivation for those acts. So expressed the privilege is broad
enough to insure the historic independence of the Legislative Branch,
essential to our separation of powers, but narrow enough to guard against
the excesses of those who would corrupt the process by corrupting its
Members.

Justice Brennan, joined by Justices White and Douglas felt that the Court
should not be so quick to overturn Johnson and wrote in dissent:
…whether the court or only the Senate might undertake the task (of
punishment) is a constitutional issue of portentous significance, which must
of course must be resolved uninfluenced by the magnitude of the perfidy
alleged.

Particularly illuminating in United States v. Brewster (1972) is Chief
Justice Burger’s interpretation of the speech or debate clause. Burger chaffed at the
notion that the Clause was a essentially a “get out of jail free” card for Congressmen.
He states that the clause was designed not

294
“simply for the personal or private benefit of Members of Congress, but to
protect the integrity of the legislative process by insuring the independence
of individual legislators” (408 U.S. at 507).

Burger concluded that the government may prosecute a member of Congress
under a criminal statute if a case does not rest on legislative acts or a congressman’s
motives in performing those acts. Burger supports this conclusion through a broad
and deep historical analysis of Article I, §6 (Lamb 1991, 136 – 137).
Burger’s clear distinction between legislative and political acts by member of
Congress was to become essential in the evolving interpretation of the Speech or
Debate Clause. A legislative act, he emphasized, is one that relates to business
before Congress and is constitutionally protected, but political acts include a broad
variety of activities not legislative in nature and not protected.
238
Bribery is a
political act, falling outside the immunity afforded by the Constitution.
The issue of congressional immunity, long thought to be settled, is again re-
emerging as a point of contention between all three branches of government thanks
to the alleged illegal activities of Representative William J. Jefferson of Louisiana.
After the Justice Department obtained a search warrant from a Federal Judge
allowing a search of Jefferson’s congressional office, the inflamed House of
Representatives quickly held hearings to express their outrage. The opening

238
Although member of Congress cannot be prosecuted for their legislative acts, they are not immune
from prosecution for political or nonlegislative acts, even if these are unquestionably related to the
legislative process, including “wide range of legitimate ‘errands’ performed for constituents, the
making of appointments with Government agencies, assistance in securing Government contracts,
preparing so-called ‘news-letters’ to constituents, news releases, and speeches delivered outside
Congress” (408 U.S. at 512).

295
statement of Chairman Sensenbrenner illuminates the fluid discussion on
congressional immunity.
239

Handed down on the same day as Brewster was the case of Gravel v. United
States, 408 U.S. 606 (1972). Clearly the Court had Congressional Immunity on its
mind. The issue was not just one of the scope of congressional immunity, but who

239
Sensenbrenner stated, “Our Founding Fathers Thomas Jefferson and James Madison made clear
that a general legislative constitutional safeguard, designed to prevent encroachments by the
executive branch on the legislative branch, is embodied in article I, section 6, clause 1 of the
Constitution, which provides that Senators and Representatives “shall not be questioned” for “any
Speech or Debate in either House.”
The purpose of the Speech or Debate Clause was aptly summarized by the Supreme Court in
Eastland v. U.S. Serviceman’s Fund, in which it stated “The central role of the Clause is to prevent
intimidation of legislators by the Executive and accountability before a possibly hostile judiciary.”
The Supreme Court has also stated, in United States v. Johnson, that “[i]n the American
governmental structure, the [Speech or Debate] clause serves the ... function of reinforcing the
separation of powers so deliberately established by the Founders.” And in Helstoski v. Meanor, the
Court said the clause is “vitally important to our system of government.”
In the case of United States v. Brewster, the Court emphasized that the Speech or Debate
Clause does not confer immunity from prosecution for criminal activities upon Members of
Congress because such activities are not legitimate legislative acts. However, while bribery and
other crimes clearly fall outside the scope of the constitutional legislative safeguard, the prior
question is what procedures should be adopted to determine which Member communications are
protected by the Speech or Debate Clause, and which are not. The Supreme Court made clear in the
Brewster case that, “It is beyond doubt that the Speech or Debate Clause protects against inquiry
into acts that occur in the regular course of the legislative process.”
In the case of Representative William J. Jefferson, the search warrant the Justice Department
obtained from a federal judge allowed for his Congressional office to be largely combed over, with
materials – including computer hard drives – placed in the sole possession of the Department of
Justice. The materials taken very likely include communications, created in the course of the
legitimate legislative process, that have nothing to do with the criminal inquiry into Representative
Jefferson’s activities.
The Justice Department had the ability to seek enforcement of their federal grand jury
subpoena in federal court to obtain the same documents seized from Congressman Jefferson's
Capitol Hill Office, but chose not to. The Justice Department has historically used federal grand
jury subpoenas to obtain documents relevant to a criminal investigation of a Congressman or
Senator.
On May 25th , the President ordered the seized documents sealed for a period of 45 days so
Congress and the Department of Justice can work out a constitutionally sound solution that will
allow all materials relevant to any crime to be obtained while protecting innocent legislative
materials legitimately protected by the Speech and Debate Clause. In doing so, the President has
allowed for precisely the sort of reasoned deliberation on important issues of separation of powers I
expect this hearing to accord with today.” (U.S. House of Representatives, Oversight Hearing on
the Constitutional Questions Raised by Raid of Capitol Hill Office, May 30, 2006).

296
or what institution would determine that scope. On this, the Court was clear – it
would not be Congress itself (Mason and Stephenson 1987, 79). The Court declined
to allow Congress to be the sole judge of the scope of the privilege enshrined in the
Speech or Debate Clause (Article I, § 6) of the Constitution.
Gravel involved, at it’s core, the publication of the Pentagon Papers. Senator
Gravel, Chairman of the Subcommittee on Buildings and Grounds of the Senate
Public Works Committee, called a meeting of the subcommittee for the purpose of
reading from the Pentagon Papers and placing them in public record. A grand jury
investigating violations of federal law, subpoenaed an aide to the Senator. The
Senator
The protection against being “questioned in any other Place” is a major
resources of legislative power and independence. The privilege extends, “not only to
a member but also to his aides insofar as the conduct of the latter would be a
protected legislative act if performed by the member himself” (Gravel).
In California Banker’s Association v. Schultz, 416 U.S. 21 (1974), the court
supported a significant delegation of legislative power to the executive. In a vote of
7 – 2
240
the majority found that Congress has plenary authority to regulate foreign
commerce and to delegate significant parts of this power to the Executive.
The plenary authority of Congress to regulate foreign commerce, and to
delegate significant portions of this power to the Executive, is well
established. C. & S. Air Lines v. Waterman Corp., 333 U.S. 103, 109

240
Justice Rehnquist delivered the opinion of the Court, joined by Justices Burger, Stewart, White,
Blackmun, Marshall and Powell.

297
(1948); Norwegian Nitrogen Products Co . v. United States, 288 U.S. 294
(1933). Plaintiffs contend that in exercising that authority to require
reporting of previously described foreign financial transactions, Congress
and the Secretary have abridged their Fourth Amendment rights. (416 U.S.
21, 59).

Only Justices Douglas and Brennan objected to excessive delegation of
legislative power to the President.
In the modern era of interbranch disputes, perhaps none was more dramatic
than U.S. v. Nixon, 418 U.S. 683 (1974). While all court cases are significant to
some degree – few cases have ever had such a consequential aftermath. The decision
in this case would indeed lead to the resignation of President Richard M. Nixon in
August of 1974. The facts are of course well known: during the course of
investigating the Watergate break in, the special prosecutor (and the nation) was
made aware of the existence of tape recording of numerous meetings held in the
White House between Nixon and his subordinates.
241
Archibald Cox attempted to
receive all the tapes necessary to clarify the Watergate events and was fired by the
Nixon for insisting that the President turn them over to the special prosecutor. Leon
Jaworski did get indictments in March, 1974, and again requested the President to
turn over to the Special Prosecutor tapes that recorded 64 conversations that
Jaworski felt were vital to the case for the prosecution. He asked the court to issue
subpoenas to the president turning the tapes over to the special prosecutor. President

241
This news was made public during the Senate investigation of the Watergate events. The Senate
committee, chaired by Senator Sam Ervin, D – N.C., conducted hearings on the break in for a
number of months in the spring of 1973; these publicly televised hearings did much to educate the
public as to what went on during the days surrounding the presidential election of 1972 (Kurland
1978).

298
Nixon argued that the separation of powers concept and the idea of an independent
executive branch would be destroyed if he were forced to reveal private and
confidential conversations he had with his aides. A lower court ruled in Jaworski’s
favor but, when the President appealed to the Court of Appeals, the special
prosecutor successfully urged the Supreme Court to take the case from the Court of
Appeals due to the need to expedite matters in order to go to trial in September 1974
(Ball 1990; Kurland 1978).
In March of 1974, a federal grand jury indicted seven Nixon aides on charges
related to the Watergate break-in, including conspiracy to obstruct justice. The
President was named as an unindicted coconspirator and ordered, by a subpoena
duces tecum to produce tapes and documents to be used during trial. The President
refused to submit all the requested documents, claiming executive privilege. The
claim of privilege was rejected by the District Court and the case was then
immediately heard by the Supreme Court. The President argued that “the separation
of powers doctrine precludes judicial review of a President’s claim to privilege.”
In a unanimous decision, with Justice Rehnquist abstaining
242
, the Court,
citing Marbury v. Madison, rejected the separation of powers argument on its face,
stating that is the duty of the judicial branch to “say what the law is.” The Court then
went on to say that only a limited executive privilege exists and that the production

242
In the cases in this study, there are several instances of abstention. In 1974, Justice Rehnquist
abstained from U.S. v. Nixon after having worked for the Nixon administration. In 1976, Justice
Stevens abstained in Buckley v. Valeo after having been recently appointed and likewise Justice
Kennedy in 1988 for Morrison v. Olson.

299
of the documents requested in this case was not covered under that limited privilege
(Witt 1990).
243

In Schick v. Reed, 419 U.S. 256 (1974), President Eisenhower had issued a
pardon to a military person who had been sentenced to death. The pardon was a
conditional pardon, however, in that the president offered to commute the death
penalty to life imprisonment without the possibility of parole. One of the questions
raised in this case was whether the president could condition the pardon in that (or
any) fashion. In an opinion
244
by Chief Justice Burger, the court stated,
During a typical term of the Supreme Court, a fairly small proportion of the
Court’s decisions directly address the subject of executive power. Still, an
examination of the Burger Court’s decisions in this area indicates that the
chief justice was prone to defer to the presidency and the executive branch.
In Schick v. Reed (1974), Burger announced that the only limits on the
president’s power to pardon are those stated in the Constitution (Lamb 1991,
139).

At issue in Eastland v. United States Servicemen’s Fund, 421 U.S. 491
(1975) was the investigatory powers of Congress. The Subcommittee on Internal
Security, one of the committees of the Senate Judiciary Committee (chaired by
Senator James Eastland, D-Miss.) subpoenaed the bank records of the United States
Servicemen’s Fund. This group had organized coffeehouses adjacent to some army
bases in the United States and had published some “underground” newspapers that

243
The scholar Philip Kurland is to have said (and I paraphrase) that “If Watergate was a tennis match
between Congress and the Executive, game, set and match went to the referee.” By the referee he is
referring here to, of course, the Supreme Court.
244
Dissent by Marshall, Douglas and Brennan

300
were highly critical of American involvement in Vietnam. Officers of the
organization sought an injunction against the congressional action, arguing that the
First Amendment prohibited Congress from interfering with their right to speak out
on this issue. In an opinion,
245
again by the Chief Justice, the Court held that the
power of inquiry is an integral part of the legislative function.
The opinions in Buckley v. Valeo, 424 U.S. 1 (1976) run a total of over 200
pages. At issue was the constitutionality of the Federal Election Campaign Act,
which, among other things, limited the amount of money a candidate for certain
federal offices could raise and spend and created the Federal Election Committee
(FEC) to oversee the mandates of the Act. The Court was divided over the issue of
campaign finance, but in a unanimous 8 –0 decision, the Justices voiced their firm
belief that the FEC violated separation of powers principles ⎯ specifically, the
Appointments Clause of the Constitution (Article II, § 2). The Appointments Clause
prohibits Congress from appointing federal officials. The Court found that the FEC
exercised primarily executive functions and therefore its members must be appointed
by the President, not by Congress.
246

In Federal Energy Administration v. Algonquin SNG, Inc., 426 U.S. 548
(1976), the Court again dealt with the delegation of Congressional power. The
governors of several states and a private corporation who were seeking to overturn

245
In his dissent, Justice Douglas argued that Congress is not immune from actions brought by people
who have been wronged by official action.
246
The Court had previously spoken on who may remove a federal employee or appointee. See
further, Humphrey’s Executor v. U.S., 295 U.S. 602 (1935), Myers v. U.S. and Wiener v. U.S., 357
U.S. 349 (1958)

301
the imposition of license fees (established by the Executive) for the importation of
oil brought this action and petroleum products as required by certain presidential
proclamations and as implemented through regulations adopted by the Federal
Energy Administration (FEA). The presidential actions had taken place under to
auspices of a congressional delegation of power to the Executive Branch of
government to take actions in the energy field so as not to impair the national
security. The question was whether or not the act of Congress delegation power to
the President enabled him to impose on the states and private corporations monetary
exactions in the form of license fees. In a 9 – 0 ruling, the Court, through the
opinion of Justice Marshall held that the delegation here was permissible, primarily
because the legislative history and the wording of the act suggest that the President
was within his authority granted to him by Congress.
In the case of U.S. v. Nixon the president’s general privilege of confidentiality
in communications did not prevail against the needs of criminal justice. The
presumptive confidentiality of presidential communications was narrowed again in
Nixon v. Administrator of General Services, 433 U.S. 425 (1977) when the Supreme
Court (divided seven to two)
247
upheld a statute that gave custody of Nixon’s public
papers and tapes to Congress and the head of the General Services Administration.
Since the statute applied only to Nixon, singling him out for special treatment, he
contended that the act violate the Bill Attainder Clause. But the court concluded that

247
Majority: Brennan, Stewart, White, Marshall, Blackmun, Powell and Stevens. Burger and
Rehnquist dissenting

302
Nixon, because of his resignation, his acceptance of a pardon for offenses committed
while in office, and the judgment of Congress that he was an unreliable custodian of
his papers constituted a “legitimate class of one.”
In the mid 1970s, Senator William Proxmire introduced his “Golden Fleece
of the Month Award.” This award was presented to those individuals or agencies
that, in the judgment of the Senator and his aides, most dramatically fleeced the
public that particular month. One of these awards, which when announced, were
always greatly publicized in newspapers, on radio and television, went to the federal
agencies that had funded the research of a Professor Hutchinson. Hutchinson was a
researcher in the field of animal behavior and had received grants from the National
Science Foundation (NSF) and National Aeronautics and Space Agency (NASA) to
support his research on why monkeys clench their jaws. After the award was
announced, Hutchinson brought suit against Proxmire in federal court for public
humiliation and defamation. The Court ruled that speech related to the legislative
function is protected by the Speech and Debate clause and is therefore immune to
judicial action; however, press releases are not part of the legislative function and
therefore are not immune.
Having advanced this legislative/political distinction in Brewster, Burger had
laid the constitutional foundation for Hutchinson v. Proxmire, 443 U.S. 111 (1979),
in which the Court ruled that the protections of the speech or debate clause do not
extend to a United States Senator being sued for libel because of statements made in

303
a congressional press release or newsletter. Narrowly construing the clause again,
Burger’s majority opinion argued that the clause was never meant to create complete
immunity from lawsuits in the case of defamatory comments by member of Congress
made outside actual congressional chambers; the only speech protected is that which
occurs within a legislative proceeding. The chief reasoned that
… a speech by Proxmire in the Senate would be wholly immune and would
be available to other member of Congress and the public in the
Congressional Record. But neither the newsletters nor the press release was
‘essential to the deliberations of the Senate’ and neither was part of the
deliberative process (Proxmire at. 130).

Even though newsletters and press releases help to inform constituents and
members of Congress, Burger insisted that they are “not a part of the legislative
function or the deliberations that make up the legislative process” (443 U.S. at 133).
Thus, he once more confidently advanced the notion that activities outside the halls
of Congress are not an essential part of the legislative process.
248
Critics quickly
pointed out that Burger’s decision negatively affected the public’s right to know and
reflected a further retrenchment of the scope of the speech and debate privilege – a
narrowing trend that had become evident earlier in Gravel v. United States (1972),

248
“After holding that the speech or debate clause prohibits evidence of legislative acts from being
introduced in the prosecution of a member of Congress for bribery, United States v. Helstoski
(1979) further suggests the chief’s propensity to interpret the protections of the clause narrowly.
His majority opinion acknowledged that the clause prohibits references in such a prosecution to a
congressman’s past legislative acts and inquiries into the motivation for those acts. Because
Helstoski had not explicitly and unequivocally waived his privilege, the government could not
introduce evidence pertaining to his legislative acts. However, extending the distinction between
legislative and political acts, Burger stated that “it is clear from the language of the Clause that
protection extends only to an act that has already been performed. A promise to deliver a speech,
to vote, or to solicit other votes at some future date is not ‘speech or debate.’ Likewise a promise
to introduce a bill is not a legislative act” (422 U.S. at 490). While Helstoski was successful on
appeal, the chief justice’s opinion may not bode well for members of Congress who seek protection
in future cases under Article I, Section 6.” (Lamb 1991 137 – 138).

304
Doe v. McMillan (1973) and Brewster.
249
Critical to the scope of the privilege is the
definition of a “protected legislative act,” by no means an all-inclusive terms. Such
protection extends to voting and preparing committee reports, but not to newsletters
and press releases, declared Chief Justice Burger in the majority in Proxmire.
Much like the case of Mora v. McNamara, discussed in Chapter 3, Goldwater
v. Carter, 444 U.S. 996 (1979) represents one of the historically few instances when
the Court has opted not to adjudicate between the Executive and Congress. It
appears as if the court could derive no benefit from deciding this case and in fact
could actually significantly harm its relationship with one or both of the concomitant
branches. In this case, President Jimmy Carter had acted without congressional
approval in ending a defense treaty with Taiwan. A group of Congressmen brought
suit seeking to establish judicial legitimacy for thie constitutional role in the
termination of treaties. The court, in an 8 – 1 decision found the case nonjusticiable
and categorized the dispute as a political question. Like in Mora, before it, the Court
stepped back from this dispute, stating,
Prudential considerations persuade me that a dispute between Congress and
the President is not ready for judicial review unless and until each branch
has taken action asserting its constitutional authority. Differences between
the President and the Congress are commonplace under our system. The
differences should, and almost invariably do, turn on political rather than
legal considerations. The Judicial Branch should not decide issues affecting
the allocation of power between the President and Congress until the
political branches reach a constitutional impasse. Otherwise, we would
encourage small groups or even individual Members of Congress to seek
judicial resolution of issues before the normal political process has the
opportunity to resolve the conflict

249
see for example “The Supreme Court, 1978 Term”, p. 161-171.

305

As in a number of Burger Court separation of powers decisions, the case of
Dames & Moore v. Regan (1981) again involved the relationship between the
Executive and legislative power. In November 1979, Iranians overtook the United
States Embassy thus beginning the infamous American hostage crisis – a crisis that
would contribute greatly to the political downfall of President Jimmy Carter. In an
effort to gain leverage against the Iranians, Carter invoked the International
Economic Emergency Powers Act (IEEPA) and froze all Iranian assets within U.S.
jurisdiction. The regulations of the Treasury Department protected the seized assets
against judgment, decree or attachment by the federal courts (D’Arcy 2003; Marks
and Grabow 1982; Trimble 1984).
Among the conditions for the release of the hostages, the United States
agreed to nullify attachments against Iranian assets in the United States and suspend
any claims against Iran. The claims would not disappear, rather they would be
submitted to a U.S.-Iran Claims Tribunal. Dames and Moore challenged these
executive acts nullifying attachments and suspending claims as not congressionally
authorized by the (IEEPA) or any other legislation or executive power. Although the
Court determined that statute fairly authorized the nullifying of the attachments, it
concluded IEEPA did not authorize the claims suspension. As in Youngstown this
case again charged the executive with acting unilaterally.

306
While the nondelegation doctrine has been so widely interpreted as to make it
mystifying to most legal scholars,
250
in the area of foreign affairs matter are much
more clear. It is ironically Youngstown, a case which denied the executive power in
wartime, where the court made it clear that interference with the executive in times
of national crisis may only happen in the more rare and narrow circumstances.
251

Using that precedent, here Justice Rehnquist writing for the court rejected the
proposition that the President had circumscribed the full extent of executive power.
In Nixon v. Fitzgerald (1982), where the Court held that the president has
absolute immunity from damages in civil cases for his official acts, Burger concurred
to point out that “the needs of a system of government sometimes must outweigh the
rights of individuals to collect damages” (457 U.S. at 759).
The Court would again defend the territory of the Judicial branch in Northern
Pipeline Construction v. Marathon Pipe Line 458 U.S. 50 (1982). The Bankruptcy
Reform Act of 1978 created a system of bankruptcy courts as an adjunct to the
federal system of district court. The Court
252
held that by granting Article III powers
to an adjunct system of courts, the Congress had “impermissibly removed most, if

250
There are times when the Court has found that Congress has broad authority to delegate power but
it has also found that Congress cannot delegate new powers to itself (Bowhser v. Synar); nor can
they relieve themselves the bicameralism and presentment requirements (INS v. Chadha); they
cannot present the executive with a line-item veto (Clinton v. NY); As D’Arcy (2003) points out,
these all present structural issues.
251
Although Justice Jackson denied that the President's role as "Commander in Chief of the Army and
Navy" gave him blanket authority to "do anything, anywhere," Jackson did concede a remarkably
flexible "zone" of concurrent authority between the President and Congress (Youngstown at 642 –
643).
252
Majority: Brennan, Marshall, Blackmun, Rehnquist, Stevens, O’Connor. Burger, White and
Powell dissenting.

307
not all, of the essential attributes of the judicial power” from the district courts.
While from an institutional perspective, it is clear that the Supreme Court would
protect its territory, the outcome was not foregone. How would the Court distinguish
such courts from other judicial and quasi-judicial structures under the purview of the
executive? The court answered as follows,
Article III bars Congress from establishing under its Art. I powers
legislative courts to exercise jurisdiction over all matters arising under the
bankruptcy laws. The establishment of such courts does not fall within any
of the historically recognized situations - non-Art. III courts of the
Territories or of the District of Columbia, courts-martial, and resolution of
"public rights" issues - in which the principle of independent adjudication
commanded by Art. III does not apply. The bankruptcy courts do not lie
exclusively outside the States, like the courts of the Territories or of the
District of Columbia, or bear any resemblance to courts-martial, nor can the
substantive legal rights at issue in the present action - the right to recover
contract damages to augment Northern's estate - be deemed "public rights."
There is no persuasive reason in logic, history, or the Constitution, why
bankruptcy courts lie beyond the reach of Art. III (Marathon at 52).

In Commodity Futures Trading Commission v. Schor, where the non-Article
III Commodities Future Trading Commission was given the power to hear state law
counterclaims, Justice O'Connor wrote an opinion
253
for the Court joined by
Rehnquist, in which she upheld congressional creation of legislative courts so long as
they did not interfere "too much" with core judicial powers. Schor was a major
decision in the legislative courts area, and it remains controlling case law to the
present day. Thus, even at a time when the Burger Court was active in the separation

253
Majority: Burger, White, Blackmun, Powell, Rehnquist Stevens and O’Connor. Brennan and
Marshall dissenting

308
of powers field, the Court bungled its key opportunity to protect the judiciary from
incursions by Congress through separation of powers doctrine (Calabresi 2004).
Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983)
addressed the issue of legislative veto and affected the legitimacy of hundreds of
such acts of Congress. Article I, §8 of the Constitution gives the Congress the right
to establish the rules of immigration and naturalization. Much like in other areas of
administrative law, the Congress has handed this authority over to the Attorney
General for the sake of efficiency.
254
In return, they retain a legislative veto over
certain decisions made by the Attorney General. The veto can be exercised by either
house of the Congress. In a 7 – 2 decision
255
, the Burger Court held that the one
house legislative veto was unconstitutional on two distinct grounds. First, it violated
the Presentment’s clause (Article I, §7, clause 2) which requires that every bill be
presented to the President for his signature, so that he may be afforded the
opportunity to veto the particular provision. Second, the one house legislative veto
violates the bicameral requirements of Article I, §§1 and 7, which states that both
houses must pass a bill before it becomes law. The court stated that the proper way to
veto the actions of the Attorney General was to pass a law effectuating such a result.
The practical effect of this ruling has been unclear at best. Congress, with the

254
The legitimacy of administrative agencies is constitutionally suspect. Even proponents of
economic efficiency such as Richard Posner state, “The [administrative] process is defended as
enhancing efficiency, but the (alleged) enhancement is achieved by combining executive,
legislative, and judicial powers in one body. This seems the type of efficiency that the
constitutional framers thought on balance inefficient because of the danger it created of excessive
centralization of political power” (1986, 583).
255
Majority: Burger writing for the Court, Powell concurring, Rehnquist and White dissenting.

309
Executive’s acquiescence has continued to exercise the legislative veto in spite the of
the Court’s ruling.
256

Bowsher v. Synar, 478 U.S. 714 (1986) addressed the automatic reduction
provisions of the Graham-Rudman Act. In the event that the federal budget deficit
exceeded levels provided for in the Act, the Comptroller General of the United States
was directed to review budget estimates and then submit to the President a report
stating on a program-by-program basis, how much needed to be cut. The President
was then required to issue an order mandating the reductions specified by the
Comptroller. In a 7 – 2 decision the Court struck down the automatic reduction
provisions of the Act for the following reasons: (1) the Act uses the Comptroller’s
executive powers; (2) executive powers may not be vested with the Congress; (3)
Congress may remove the Comptroller, therefore he is an agent of the Congress.
The Comptroller therefore, may not constitutionally exercise the executive powers
given to him, which negates the Graham-Rudman Act’s automatic reduction
mechanism. The Court viewed the Comptroller as an executive officer because of
his executive function. The fact that the Comptroller served at the pleasure of
Congress and can be removed by Congress violated separation of powers. Bowsher
represents a sharpening of the limits on Congress’ control over executive
appointments – just as Buckley prevents Congress from appointing executive
officers, so Bowsher prevents it from removing them (Cohen and Varat 1997).

256
Congress has used the legislative veto over 300 times since 1983 (Fisher and Devins 1996, 107).

310

IV. Testing the Models
The Burger and Rehnquist Court’s separation of powers cases represent a
very interesting data set for examination. Both Chief Justice Warren Burger and
Chief Justice William Rehnquist served in the executive branch of government, prior
to their elevation to the bench.
257
Does an examination of their separation of powers
jurisprudence find a particular allegiance to the executive? The analysis below and
in the next chapter shows that their deference ends at the court house gates.

A. The Attitudinal Model
Table 16 represents the conservative and liberal assigned to the Justices of
the Burger Court by Segal and Cover. They are listed in the order of appointment to
the Court. It is of course immediately striking and evident that the appointed justices
are considerably and progressively more conservative. The political promise to
change the face of the court was fully delivered. 0 shows the Average Segal/Cover
Values of the natural courts of the Burger Era.
258

257
Burger served as Assistant Attorney General from 1953 – 1955; Rehnquist served as Assistant
Attorney General from 1969 – 1971.
258
Derived from the simple arithmetic mean of the Segal/Cover values of the individual justices.

311

Table 16. Segal/Cover Values for Justices of the Burger Court, 1969 – 1986

Justice Segal/Cover
Black .75
Douglas .46
Harlan II .75
Brennan 1.00
Stewart .50
B. White .00
T. Marshall 1.00
Burger -.77
Blackmun -.77
Powell -.67
Rehnquist -.91
Stevens -.50
O’Connor -.17

Table 17. Average Segal/Cover Values of Natural Courts of the Burger Era, 1953 – 1969

Natural Court Average Segal/Cover

Burger 1 0.46
Burger 2 0.32
Burger 3 -0.02
Burger 4 -0.12
Burger 5 -0.20

312

Commensurate with the ever more conservative membership of the Court, the Court
as a whole turned sharply to the right during the Burger Era. While this would affect
almost every area of jurisprudence, this analysis shows that the area of separation of
powers was relatively immune to this sharp ideological turn. As stated before, the
separation of powers simply cannot be categorized as a liberal/conservative
dichotomy. The Burger Court’s separation of powers jurisprudence bears that out.
Table 18 shows that votes of justices of the Burger Court in separation of
powers cases. Immediately, we see the pattern of justices with widely disparate
ideological views voting identically in separation of powers cases. Table 19 shows
the overall voting correlation in separation of powers cases.
259
While I will explore
this phenomenon more deeply in Chapter 5’s analysis of the Rehnquist, the Burger
Court clearly shows an almost complete disregard for ideological differences when
forming voting blocs and coalitions in separation of powers cases.
While the Attitudinalists have amassed voting correlation data on almost
every conceivable area of jurisprudence, there is no such data on separation of
powers cases. It is difficult to assign any reason to this oversight. Clearly, the data
does not fit their model – but beyond that, the Segal/Spaeth data base simply does
not code for separation of powers disputes.

259
The top number in each cell represents percentage of agreement between the two justices, the
bottom number in parentheses is the number of separation of powers cases which the justices heard
together.

313
Table 18. Attitudinal Analysis of Separation of Powers Cases in the Burger Court, 1969 – 1986

Segal/Cover

Keith
(1972)
8 – 0
US v. Brewster
(1972)
6 – 3
Gravel v. US
(1972)
5 – 4
CA Bankers v. Schultz
(1974)
7 – 2
US v.
Nixon (1974)
8 – 0
Schick v. Reed
(1974)
6 -3
Eastland v. US Service.
Fund (1975) 8 – 1
Buckley v.
Valeo (1976)
8 – 0
FEA v. Algonquin SNG
(1976)
9 – 0
Nixon v.Admin. of
General Services
(1977) 7 – 2
Hutchinson v. Proxmire
(1980)
8 – 1
Dames & Moore v. Regan
(1981)
9 – 0
Nixon v. Fitzgerald
(1982)
5 – 4
Northern Pipeline. v.
Marathon Pipeline (1982)
6 - 3
INS v. Chadha
(1983)
7 – 2
Bowsher v. Synar
(1986)
7 – 2
Black .75
Douglas .46 J/e c/J c/J c/E J/e J/e j/C
Harlan II .75
Brennan 1.00 J/e c/J c/J c/E J/e J/e C/j E/c E/c C/e c/J E/c j/E J/c E/c E/c
Stewart .50 J/e J/c c/J E/c J/e E/j C/j E/c E/c C/e J/c E/c
B. White .00 J/e c/J J/c E/c J/e E/j C/j E/c E/c C/e J/c E/c j/E c/J C/e C/e
Marshall 1.00 J/e J/c c/J E/c J/e J/e C/j E/c E/c C/e J/c E/c j/E J/c E/c E/c
Burger -.77 J/e J/c J/c E/c J/e E/j C/j E/c E/c e/C J/c E/c E/j c/J E/c E/c
Blackmun -.77 J/e J/c J/c E/c J/e E/j C/j E/c E/c C/e J/c E/c j/E J/c E/c C/e
Powell -.67 J/e J/c J/c E/c J/e E/j C/j E/c E/c C/e J/c E/c E/j c/J C/e E/c
Rehnquist -.91 N/P J/c J/c E/c N/P E/j C/j E/c E/c e/C J/c E/c E/j J/c E/c E/c
Stevens -.50 N/P E/c C/e J/c E/c E/j J/c E/c E/c
O’Connor -.17 E/j J/c E/c E/c

314
Table 19. Voting Correlation Rates for Justices of the Burger Court in Separation of Powers Cases: 1969 – 1986

Douglas Brennan Stewart White Marshall Burger Blackmun Powell Rehnquist Stevens O’Connor

Douglas

*
85.7
(7)
42.85
(7)
42.85
(7)
57.15
(7)
28.57
(7)
28.57
(7)
28.57
(7)
0
(5)

n/a

n/a
Brennan

85.7
(7)

*
66.6
(12)
56.25
(16)
81.25
(16)
50
(16)
62.5
(16)
50
(16)
50
(14)
75
(8)
75
(4)
Stewart

42.85
(7)
66.6
(12)

*
83.33
(12)
83.33
(12)
83.33
(12)
91.66
(12)
91.66
(12)
80
(10)
100
(4)

n/a
White

42.85
(7)
56.25
(16)
83.33
(12)

*
62.5
(16)
68.75
(16)
81.25
(16)
81.25
(16)
57.14
(14)
50
(8)
0
(4)
Marshall

57.14
(7)
81.25
(16)
83.33
(12)
62.5
(16)

*
68.75
(16)
81.25
(16)
68.75
(16)
71.42
(14)
87.5
(8)
75
(4)
Burger

28.57
(7)
50
(16)
83.33
(12)
68.75
(16)
68.75
(16)

*
75
(16)
87.5
(16)
92.85
(14)
75
(8)
75
(4)
Blackmun

28.57
(7)
62.5
(16)
91.66
(12)
81.25
(16)
81.25
(16)
75
(16)

*
75
(16)
78.57
(14)
75
(8)
50
(4)
Powell

28.57
(7)
50
(16)
91.66
(12)
81.25
(16)
68.75
(16)
87.5
(16)
75
(16)

*
75
(8)
100
(4)
Rehnquist

0
(5)
50
(14)
80
(10)
57.14
(14)
71.42
(14)
92.85
(14)
78.57
(14)
78.57
(14)

*
87.5
(8)
100
(4)
Stevens

n/a
75
(8)
100
(4)
50
(8)
87.5
(8)
75
(8)
75
(8)
75
(8)
87.5
(8)

*
100
(4)
O’Connor

n/a
75
(4)

n/a
0
(4)
75
(4)
75
(4)
50
(4)
100
(4)
100
(4)
100
(4)

*

315
B. The Strategic Model
In analyzing a strategic model of the Burger Court’s separation of powers
voting, the results indicate a lack of predictive ability. Table 20 summarizes the
results of a strategic model analysis of the Burger Court’s separation of powers
cases. The strategic model correctly predict 10 of the 16 cases
260
under
consideration here, for a 62.5% correlation rate. The strategic model performs as
well in following consideration of the Rehnquist Court in Chapter 5. What is
particularly impressive about the strategic model’s performance during the Burger
era, is that it is able to successfully grapple with some of the more difficult
outcomes. It not only successfully illustrates Chadha, but Fitzgerald as well. While
we will see in a moment that the Historical New Institutionalism performs better in
this and in all courts considered in this study, a strategic analysis is nevertheless
illuminating. The three basic elements of the strategic model
261
were often seen on
display in the Burger Court for two primary reasons, the rise of divided government
and a steady stream of inter-branch disputes – especially those between Congress
and the Executive.

260
Correctly predicts Brewster, Gravel Shultz, Schick, Buckley, Algonquin, Dames & Moore,
Fitzgerald, Chadha and Bowsher.
261
1) justices have goals and work towards attaining those goals, 2) justices act strategically and 3)
institutions structure or constrain justices’ actions (Epstein and Knight 1998, 10-11). See full
discussion in Introduction Chapter.

316
Table 20. Strategic Model of Separation of Powers Cases in the Burger Court

PresidentHouseSenate
Supreme Court
Segal/Cover
Average
Expected
Outcome
Actual
Outcome

Keith (1972)

R

D

D

-0.02

e/J J/e
Brewster (1972)

R D D -0.02 J/c J/c
Gravel (1972)

R D D -0.02 J/c J/c
Shultz (1974)

R D D -0.02 E/c E/c
Nixon (1974)

R D D -0.02 e/J J/e
Schick (1974)

R D D -0.02 E/j E/j
Eastland (1975)

R D D -0.02 J/c C/j
Buckley (1976)

R D D -0.12 E/c E/c
Algonquin (1976)

R D D -0.12 E/c E/c
Admin. General Serv.
(1977)

D D D -0.12 Cannot Predict C/e
Proxmire (1979)

D D D -0.12 c/J J/c
Dames & Moore (1981)

R D R -0.12 E/c E/c
Fitzgerald (1982)

R D R -0.20 E/j E/j
Marathon (1982)

R D R -0.20 J/c
Chadha (1983)

R D R -0.20 E/c E/c
Bowhser (1986)

R D R -0.20 E/c E/c

Key: D = Democrats R = Republican C = Congress J = Judiciary E = Executive
C/e = Court sided with Congress in dispute between Congress and Executive
Boldface = Strategic Model correctly predicts outcome

317
C. Regime (Ruling Coalition) Theory
The theory of ruling coalitions, as differentiated from a straightforward
strategic approach, states that the Court will side with the controlling elites,
regardless of its own political affiliation. Therefore, in this analysis, the particular
ideological make-up of the Court becomes far less relevant than the ideological tenor
of the ruling coalition. The role of the court, in this type of analysis, is far more
reactive rather than proactive. As Mark A. Graber states, the Court becomes
involved in disputes “only when the dominant national coalition is unable or
unwilling to settle some public dispute” (1993, 36). This leaves little room for
questioning whether the national coalition is within certain constitutional guidelines
or not. Separation of powers issues present us with some very engaging questions
within the context of a ruling coalition analysis. In the cases at hand, the conflict
was always between and among ruling elites. How then does the Court arrive at a
decision?
Table 21 reveals that the theory, in general has a hard time predicting or
explaining separation of powers decision in the Burger Era. In the era of divided
government, who constitutes the ruling coalition. When there is no overwhelming
party control of Congress, no 2/3 majority which makes the Congress capable of
exerting its will over the Executive, how much and to what degree does it influence
the decision of the Supreme Court? The same methodological difficulties that have

318
been previously discussed, still remain.
262
In 25%, 4 out of the 16 cases, regime
theory simply cannot predict the outcome, due to the lack of any clear regime
preferences. Of the remaining 12 cases, the method produces 9 correct
263
outcomes
for an overall correlation rate of slightly over half (56%). Except for Northern
Pipeline v. Marathon Pipeline, all the cases correctly predicted by the Regime model
were also predicted by the Strategic model. While their narratives and assumptions
are different, throughout this study we have often seen their results overlap, with the
strategic model always performing better than the regime model.

262
One can summarize the problems of applying a ruling coalitions analysis to separation of powers
cases in the following manner: 1) The Court appears to have a self-interested role not normally
recognized by regime theorists. That is, in separation of powers cases, the Court protects the
judiciary against any and all coalitions, ruling or otherwise. 2) The Court must decide between
ruling elites, not between rulers and non-rulers, thus there is no clear cut indication as to which way
it should rule, unless there is an overwhelming 2/3 coalition in the Congress. None of the cases at
hand presented the court with such a majority in Congress. When ruling coalitions divide on an
issue, it is no longer clear as to which faction constitutes the effective ruling coalition; in other
words the ruling coalition becomes very difficult to identify. 3) When ruling coalitions divide over
an issue, the Court steps in and makes decisions which have, as their underlying. logic something
other than supporting ruling elites. They appear to have a more fundamental constitutional and
jurisprudential foundation for their decisions.
263
The model correctly predicts Shultz, Schick, Buckley, Algonquin, Dames &Moore, Fitzgerald,
Marathon, Chadha and Bowsher.

319
Table 21. Ruling Coalitions Analysis of Burger Court Separation of Powers Cases

President

House Senate
Two-Thirds
Majority
in Congress?
Expected
Outcome
Actual
Outcome

Keith (1972)

R D D No e/J J/e
Brewster (1972) R D D No
Cannot
Predict
J/c
Gravel (1972) R D D No
Cannot
Predict
J/c
Shultz (1974)

R D D No E/c E/c
Nixon (1974)

R D D No e/J J/e
Schick (1974)

R D D No E/j E/j
Eastland (1975)

R D D No
Cannot
Predict
C/j
Buckley (1976)

R D D No E/c E/c
Algonquin (1976)

R D D No E/c E/c
Admin. Gen. Serv.
(1977)
D D D No
Cannot
Predict
C/e
Proxmire (1979)

D D D No c/J J/c
Dames & Moore
(1981)
R D R No E/c E/c
Fitzgerald ( 1982)

R D R No E/j E/j
Marathon (1982)

R D R No J/c J/c
Chadha (1983)

R D R No E/c E/c
Bowsher (1986)

R D R No E/c E/c

Key: D = Democrats R = Republican C = Congress J = Judiciary E = Executive
C/e = Court sided with Congress in dispute between Congress and Executive
Boldface = Ruling Coalition Model correctly predicted outcome
Cannot Predict = The dispute is not with the dominant coalition and/or the dominant
coalition is not clear

320
D. The Historical New Institutionalism
Figure 5 is the new institutional decision tree for separation of powers cases
during the Burger Era. The cases listed in bold type have been correctly analyzed by
the decision tree. The cases in regular typeface are placed where the decision tree
would have predicted but is not how the case was actually decided. In other words,
it represents a “wrong” answer. Of the sixteen cases under consideration, the
decision tree correctly predicts 12, for an overall correlation rate of 75%. Four of the
cases at hand had a clear textual basis for the decision, Chadha, Schick, Eastland.
The Court had a clear textual basis (prohibition against bills of attainder) in
Administrator of General Services, but chose to ignore it in the highly politicized
Watergate era. Six of the sixteen cases, involved a dispute with the judiciary itself
and were also absent a textual decision making basis. Of these, the decision tree
correctly predicts five of the six.
264

After having considered the Vinson, Warren and Burger Courts, one can note
at this time that thus far – and indeed for the entirely study, the decision tree does not
result in a “cannot predict” answer, one of the primary flaws of the strategic model
and especially the regime model. Beyond attitudes and strategies, the New
Historical Institutionalism invites a new way of thinking about separation of powers
cases and judicial behavior. One change of thinking can be categorized as “finite
versus infinite games.” Simply put, the strategic and regime models look at every

264
They are, Marathon, Gravel, Keith, Brewster and U.S. v. Nixon.

321
case as a finite “game,” with winners and losers along the way. An institutional
perspective and the recognition of the importance of the long-term mission of the
court, makes clear that games are in fact infinite. Elections and sports are finite, the
battle over constitutional powers is infinite. As the court engages in these
constitutional contests, it is seeking not only to effectuate its institutional mission,
but to also improve the playing field for future contests – slowly pushing the
jurisprudence in its desired direction.
This perspective of the “unending season” of constitutional contests
introduces a second important outcome of the institutional perspective – long term
versus short term thinking. While the other institutions, by nature of their political
control are programmed for short term gains, the institutional mission of the court
gives justices a long term perspective beyond even their own tenure. Commensurate
with this long term timeline is a phase shift in thinking. Long term thinking is tailor
made for the institutional perspective. Long term thinking is what allows the
Supreme Court to view itself as an institution rather than just a particular group of
justices. It is also what occasionally allows the Court to think about the nature of
government as a whole rather than just a particular branch – putting aside regime
alliances.
Historical New Institutionalism gives the philosophy of Separation of Powers
a power that is independent of historical practice. I posit here that separation of
powers is the intersection of finite (current power struggle) and infinite (structure of

322
government) games. Which do the justices choose? Separation of Powers conflicts
force justices to choose between short term goals/allegiances and long-term
stewardship of structure of government. When you go long-term, one can argue that
the justices constituencies change. They transition from serving party and/or
ideological affiliation or ruling coalition to serving the constitution itself and the
judicial branch.
Finally, the New Institutionalism trumps strategic models because of one key
factor. Gamesmanship models assume that competitive pressure forces certain kinds
of behavior. One could argue that to a large degree, the United States Supreme
Court has little to no competitive pressure. Unlike legislature and executive who
have overlapping powers – no institution overlaps the United States Supreme Court.
Even, administrative agency courts, which perform a judicial function while under
the executive branch, are still prone to federal review by the Supreme Court.

323
Figure 6. Historical New Institutionalist Decision Tree for Burger Court Separation of
Powers Cases.

That branch will likely preserve
power without encroachment.
Yes
Yes
Yes
Is there an explicit
textual (i.e.
constitutional) basis of
power for one of the
branches?
Is the Judiciary
involved in the
dispute?
Is the Court being
asked to disrupt an
established power
arrangement?
Is the Court being
asked to legitimize a
new expansion of
power?
Court will refuse new expansion
of power.
Maintain or even expand judicial
power.
Do not interfere with the
established power arrangement.
Yes
No
No
No
No
Cannot predict
Jurisprudential
Regimes
Institutional
Maintenance

Mission of Court
Separation of Powers
case
Chadha
Schick
Eastland
Adm. Gen. Serv.

Marathon
Gravel
Keith
Brewster
US v. Nixon
Fitzgerald
Algonquin
Dames &
Moore
Buckley

Bowsher
Proxmire
Shultz

324
V. Conclusion
The Burger Era was a time of great political upheaval in the United
States. The Court was not only asked to adjudicate between the branches, but to save
structures of government themselves. Especially central to this task was their
separation of powers jurisprudence. Since the New Deal, their had been a broad
perception that the Supreme Court had essentially abandoned the separation of
powers and had allowed unimaginable concentrations of power – primarily in the
Executive branch. Philip Kurland (1978, 179) represented many when he wrote,
The ancient concept of separation of powers and checks and balances has
been reduced to a slogan, to be trotted out by the Supreme Court from time
to time as a substitute for reasoned judgment. The concentration of power
has certainly reached the point that made the Founding Fathers fear the
necessary consequent tyranny.

While the Burger Court did not dilute the executive concentration of power,
they did stand firm in the face of expansions not foreseen nor allowed by Congress.
In all of this, it did not matter whether the individual justices were conservative or
liberal, simply that they wore the robes that gave them sense of mission to maintain
the balance of power.

325
The Natural Courts of the Burger Era
265

June 23, 1969 – September 26, 1986

Burger 1

June 23, 1969 – June 9, 1970

Members: Burger (appointed June 23, 1969), Black, Douglas, Harlan II,
Brennan, Stewart, B. White, T. Marshall.

Burger 2

June 9, 1970 – January 7, 1972

Members: Burger, Black (retired September 17, 1971), Douglas, Harlan II
(retired September 23, 1971), Brennan, Stewart, B. White, T.
Marshall, Blackmun (appointed June 9, 1970).

Burger 3

January 7, 1972 – December 19, 1975

Members: Burger, Douglas (retired November 12, 1975), Brennan, Stewart, B.
White, T. Marshall, Blackmun, Powell (appointed January 7, 1972),
Rehnquist (appointed January 7, 1972).

Burger 4

December 19, 1975 – September 25, 1981

Members: Burger, Brennan, Stewart (retired July 3, 1981), B. White, T.
Marshall, Blackmun, Powell, Rehnquist, Stevens (appointed
December 19, 1975).

265
Epstein, Segal, Spaeth and Walker 2003, 379.

326
Burger 5

September 25, 1981 – September 26, 1986

Members: Burger (retired September 26, 1986), Brennan, B. White, T. Marshall,
Blackmun, Powell, Rehnquist, Stevens, O’Connor (appointed
September 25, 1981).

327
Table 22. Summary of Burger Court Separation of Powers Cases, 1969 – 1986

Case Branches Holding
SOP
Theory
Vote Majority
Minorit
y
Pres. House Sen.
Court’s
Segal/
Cover
Average
United States v.
United States
District Court for
the Eastern
District of
Michigan (Keith),
407 U.S. 297
(June 19, 1972)

J and E The court held that Fourth Amendment
freedoms cannot be guaranteed if domestic
security surveillances are conducted solely at
the discretion of the executive branch. For
such surveillance to be constitutional, a
warrant issued by the judiciary is essential.
The court offered no guidance with regard to
the president’s surveillance power over “the
activities of foreign powers, within or without
this country”
Form 8 – 0 Douglas
Brennan
Stewart
White
Marshall
Burger
Blackmun
Powell

Rehnquist
N/P
Nixon 255 D

180 R

92
nd

54 D

42 R
Burger 3
(-1)
United States v.
Brewster
408 U.S. 501
(June 29, 1972)

C and J The prosecution of appellee is not prohibited
by the Speech or Debate Clause. Although
that provision protects Members of Congress
from inquiry into legislative acts or the
motivation for performance of such acts, it
does not protect all conduct relating to the
legislative process. Since in this case
prosecution of the bribery charges does not
necessitate inquiry into legislative acts or
motivation, the District Court erred in holding
that the Speech or Debate Clause required
dismissal of the indictment.
6 – 3 Opinion by
Burger

Stewart
Marshall
Blackmun
Powell
Rehnquist
Brennan
Douglas
White
Nixon 255 D

180 R

92
nd

54 D

42 R
Burger 3
Gravel v. United
States
408 U.S. 606
(June 29, 1972)

C vs. J The Speech or Debate Clause applies not only
to a Member of Congress but also to his aide,
insofar as the aide's conduct would be a
protected legislative act if performed by the
Member himself.
The Speech or Debate Clause does not extend
immunity to the Senator's aide from testifying
5 – 4 Burger
White
Blackmun
Powell
Rehnquist
Douglas
Brennan
Stewart
Marshal
l
Nixon 255 D

180 R

92
nd

54 D

42 R
Burger 3

328
Case Branches Holding
SOP
Theory
Vote Majority
Minorit
y
Pres. House Sen.
Court’s
Segal/
Cover
Average
before the grand jury about the alleged
arrangement for private publication of the
Pentagon Papers, as such publication had no
connection with the legislative process.
California
Banker’s
Association v.
Shultz
416 U.S. 21
(April 1, 1974)

C v. E the court supported a significant delegation of
legislative power to the executive. The
majority found that Congress has plenary
authority to regulate foreign commerce and to
delegate significant parts of this power to the
Executive.

Funct. 6 – 3 Burger
Stewart
White
Blackmun
Powell
Rehnquist
Douglas
Brennan
Marshal
l
Nixon 242 D

192 R

1 Ind.

93
rd
.
56 D

42 R
Burger 3
U.S. v. Nixon,
418 U.S. 683
(July 24, 1974)

E v. J Neither the doctrine of separation of powers
nor the generalized need for confidentiality of
high-level communications, without more,
can sustain an absolute, unqualified
Presidential privilege of immunity from
judicial process under all circumstances.
Absent a claim of need to protect military,
diplomatic, or sensitive national security
secrets, the confidentiality of Presidential
communications is not significantly
diminished by producing material for a
criminal trial under the protected conditions
of in camera inspection, and any absolute
executive privilege under Art. II of the
Constitution would plainly conflict with the
function of the courts under the Constitution.
Form 8 – 0 Burger (o)
Douglas
Brennan
Stewart
White
Marshall
Blackmun
Powell

Rehnquist
N/P
Nixon 242 D

192 R

1 Ind.

93
rd
.
56 D

42 R
Burger 3
Schick v. Reed,
419 U.S. 256
(Dec. 23, 1974)

The executive pardoning power under the
Constitution, which has consistently adhered
to the English common-law practice,
historically included the power to commute
sentences on conditions not specifically
authorized by statute.
Form 6 – 3 Burger
Stewart
White
Blackmun
Powell
Rehnquist
Douglas
Brennan
Marshal
l
Ford 242 D

192 R

1 Ind.

56 D

42 R
Burger 3
Table 22, Continued. Summary of Burger Court Separation of Powers Cases, 1969 – 1986

329
Case Branches Holding
SOP
Theory
Vote Majority
Minorit
y
Pres. House Sen.
Court’s
Segal/
Cover
Average
(b) Since the pardoning power derives from
the Constitution alone, it cannot be modified,
abridged, or diminished by any statute,
including Art. 118, and Furman v. Georgia,
supra, did not affect the conditional
commutation of petitioner's sentence

93
rd
.
Eastland v.
United States
Servicemen’s
Fund,
421 U.S. 491
(May 27, 1975)

(a) The applicability of the Speech and Debate
Clause to private civil actions is supported by
the absoluteness of the term "shall not be
questioned" and the sweep of the term "in any
other Place."
(b) Issuance of subpoenas such as the one in
question is a legitimate use by Congress of its
power to investigate, and the subpoena power
may be exercised by a committee acting, as
here, on behalf of one of the Houses
(d) There is no distinction between the
Subcommittee's Members and its Chief
Counsel insofar as complete immunity from
the issuance of the subpoena under the Speech
or Debate Clause is concerned, and since the
Members are immune because the issuance of
the subpoena is "essential to legislating," their
aides share that immunity.
(e) The subpoena cannot be held subject to
judicial questioning on the alleged ground that
it works an invasion of respondents' privacy,
since it is "essential to legislating." P. 508.
(f) Nor can the subpoena be held outside the
protection of speech or debate immunity on
the alleged ground that the motive of the
investigation was improper, since in
determining the legitimacy of a congressional
8 – 1 Burger
Brennan
Stewart
White
Marshall
Blackmun
Powell
Rehnquist
Douglas Ford 291 D

144 R

94th
60 D

38 R
Burger 3
Table 22, Continued. Summary of Burger Court Separation of Powers Cases, 1969 – 1986

330
Case Branches Holding
SOP
Theory
Vote Majority
Minorit
y
Pres. House Sen.
Court’s
Segal/
Cover
Average
action the motives alleged to have prompted it
are not to be considered.
(g) In view of the absolute terms of the speech
or debate protection, a mere allegation that
First Amendment rights may be infringed by
the subpoena does not warrant judicial
interference.

Buckley v. Valeo
424 U.S. 1
(Jan. 30, 1976)

C and E The Court was divided over the issue of
campaign finance, but in a unanimous
decision, the Justices voiced their firm belief
that the FEC violated separation of powers
principles ⎯ specifically, the Appointments
Clause of the Constitution (Article II, § 2).
The Appointments Clause prohibits Congress
from appointing federal officials. The Court
found that the FEC exercised primarily
executive functions and therefore its members
must be appointed by the President, not by
Congress.

Form. 8 - 0 Unsigned
Opinion

Stevens
N/P
Carter 291 D

144 R

94th
60 D

38 R
Burger 4
(-1)
Federal Energy
Administration v.
Algonquin SNG,
Inc.,
426 U.S. 548
(June 17, 1976)

C vs. E

(brought
by third
party)
It is a permissible delegation of Congressional
power to enable the President to impose on
the states and private corporations monetary
exactions in the form of license fees for the
importation of oil and petroleum products as
regulated by the Federal Energy
Administration.
Func. 9 – 0 Marshall
(o)

Burger
Brennan
Stewart
White
Blackmun
Powell
Rehnquist
Stevens

291 D

144 R

94
th

60 D

38 R
Burger 4
Nixon v. upheld a statute that gave custody of Nixon’s Func. 7 – 2 Brennan Burger Carter 292 D 61 D
Table 22, Continued. Summary of Burger Court Separation of Powers Cases, 1969 – 1986

331
Case Branches Holding
SOP
Theory
Vote Majority
Minorit
y
Pres. House Sen.
Court’s
Segal/
Cover
Average
Administrator of
General Services
(June 28, 1977)

public papers and tapes to Congress and the
head of the General Services Administration.
Since the statute applied only to Nixon,
singling him out for special treatment, he
contended that the act violate the Bill
Attainder Clause. But the court concluded
that Nixon, because of his resignation, his
acceptance of a pardon for offenses
committed while in office, and the judgment
of Congress that he was an unreliable
custodian of his papers constituted a
“legitimate class of one.”
White
Marshall
Blackmun
Powell
Stevens

Rehnqui
st

143 R

95
th

38 R
Hutchinson v.
Proxmire
(June 26, 1979)

J and C Speech related to the legislative function is
protected by the Speech and Debate clause
and is therefore immune to judicial action;
however, press releases are not part of the
legislative function and therefore are not
immune. Further narrowed scope of speech
and debate privilege.

Form 8 – 1 Burger
Stewart
White
Marshall
Blackmun
Powell
Rehnquist
Stevens
Brennan

Carter 277 D

158 R

96
th

58 D

41 R
Burger 4
Goldwater v.
Carter
444 U.S. 996
(Dec. 19, 1979)

C and E This Court has recognized that an issue should
not be decided if it is not ripe for judicial
review
Prudential considerations persuade me that a
dispute between Congress and the President is
not ready for judicial review unless and until
each branch has taken action asserting its
constitutional authority. Differences between
the President and the Congress are
commonplace under our system. The
differences should, and almost invariably do,
turn on political rather than legal
considerations. The Judicial Branch should
Form. 8 – 1 Burger
Stevens
White
Marshall
Blackmun
Powell
Rehnquist
Stevens
Brennan Carter 277 D

158 R

96
th

58 D

41 R
Burger 4
Table 22, Continued. Summary of Burger Court Separation of Powers Cases, 1969 – 1986

332
Case Branches Holding
SOP
Theory
Vote Majority
Minorit
y
Pres. House Sen.
Court’s
Segal/
Cover
Average
not decide issues affecting the allocation of
power between the President and Congress
until the political branches reach a
constitutional impasse. Otherwise, we would
encourage small groups or even individual
Members of Congress to seek judicial
resolution of issues before the normal political
process has the opportunity to resolve the
conflict.

Dames & Moore
v. Regan
453 U.S. 654
(July 2,1981)

Did the president have the authority to
transfer Iranian funds and to nullify legal
claims against Iran?

The Court held that the International
Emergency Economic Powers Act
constituted a specific congressional
authorization for the President to order the
transfer of Iranian assets. The Court further
held that although the IEEPA itself did not
authorize the presidential suspension of
legal claims, previous acts of Congress had
"implicitly approved" of executive control
of claim settlement. The Court emphasized
the narrowness of its ruling, limiting the
decision to the facts of the case.

8 – 1 Rehnquist
(o)
Brennan
Stewart
White
Marshall
Burger
Blackmun

Powell

Reagan 242 D

192 R

1 Ind.

97
th

53 R

46 D
Burger 4
Nixon v.
Fitzgerald
(June 24, 1982)

A former President of the United States, is
entitled to absolute immunity from damages
liability predicated on his official acts.
(a) Although there is no blanket recognition of
absolute immunity for all federal executive
officials from liability for civil damages
5 – 4 Powell (o)
Burger
Rehnquist
Stevens
O’Connor
White
Brennan
T.
Marshal
l
Blackm
Reagan 242 D

192 R

1 Ind.

53 R

46 D
Burger 5
Table 22, Continued. Summary of Burger Court Separation of Powers Cases, 1969 – 1986

333
Case Branches Holding
SOP
Theory
Vote Majority
Minorit
y
Pres. House Sen.
Court’s
Segal/
Cover
Average
resulting from constitutional violations,
certain officials - such as judges and
prosecutors - because of the special nature of
their responsibilities, require absolute
exemption from liability. Determination of the
immunity of particular officials is guided by
the Constitution, federal statutes, history, and
public policy.
(b) The President's absolute immunity is a
functionally mandated incident of his unique
office, rooted in the constitutional tradition of
the separation of powers and supported by the
Nation's history. Because of the singular
importance of the President's duties, diversion
of his energies by concern with private
lawsuits would raise unique risks to the
effective functioning of government. While
the separation-of-powers doctrine does not bar
every exercise of jurisdiction over the
President, a court, before exercising
jurisdiction, must balance the constitutional
weight of the interest to be served against the
dangers of intrusion on the authority and
functions of the Executive Branch. The
exercise of jurisdiction is not warranted in the
case of merely private suits for damages based
on a President's official acts.
(c) The President's absolute immunity extends
to all acts within the "outer perimeter" of his
duties of office.
(d) A rule of absolute immunity for the
President does not leave the Nation without
sufficient protection against his misconduct.
There remains the constitutional remedy of
un 97
th

Table 22, Continued. Summary of Burger Court Separation of Powers Cases, 1969 – 1986

334
Case Branches Holding
SOP
Theory
Vote Majority
Minorit
y
Pres. House Sen.
Court’s
Segal/
Cover
Average
impeachment, as well as the deterrent effects
of constant scrutiny by the press and vigilant
oversight by Congress. Other incentives to
avoid misconduct may include a desire to earn
reelection, the need to maintain prestige as an
element of Presidential influence, and a
President's traditional concern for his
historical stature.

Northern Pipeline
Construction v.
Marathon Pipe
Line
458 U.S. 50 (June
28, 1982)

J and C/E Struck down the 1978 Bankruptcy Act.

The judicial power of the United States must
be exercised by judges who have the attributes
of life tenure and protection against salary
diminution specified by Art. III. These
attributes were incorporated into the
Constitution to ensure the independence of the
Judiciary from the control of the Executive
and Legislative Branches. There is no doubt
that bankruptcy judges created by the Act are
not Art. III judges.

Formal
ist
6 – 3 Brennan
Marshall
Blackmun
Rehnquist
Stevens
O’Connor
Burger
White
Powell
Reagan 242 D

192 R

1 Ind.

97
th

53 R

46 D
Burger 5
INS v. Chadha
462 U.S. 919
(June 23, 1983)

C and E The congressional veto provision in 244(c)(2)
is unconstitutional.

(a) The prescription for legislative action in
Art. I, 1 - requiring all legislative powers to be
vested in a Congress consisting of a Senate
and a House of Representatives - and 7 -
requiring every bill passed by the House and
Senate, before becoming law, to be presented
to the President, and, if he disapproves, to be
repassed by two-thirds of the Senate and
Form. 7 – 2 Burger (o)
Brennan
Marhall
Blackmun
Powell
Stevens
O’Connor
White
Rehnqui
st
Reagan 269 D

166 R

98
th

54 R

46 D
Burger 5
Table 22, Continued. Summary of Burger Court Separation of Powers Cases, 1969 – 1986

335
Case Branches Holding
SOP
Theory
Vote Majority
Minorit
y
Pres. House Sen.
Court’s
Segal/
Cover
Average
House - represents the Framers' decision that
the legislative power of the Federal
Government be exercised in accord with a
single, finely wrought and exhaustively
considered procedure. This procedure is an
integral part of the constitutional design for
the separation of powers.

(b) Here, the action taken by the House
pursuant to 244(c)(2) was essentially
legislative in purpose and effect and thus was
subject to the procedural requirements of Art.
I, 7, for legislative action: passage by a
majority of both Houses and presentation to
the President. The one-House veto operated to
overrule the Attorney General and mandate
Chadha's deportation. The veto's legislative
character is confirmed by the character of the
congressional action it supplants; i. e., absent
the veto provision of 244(c)(2), neither the
House nor the Senate, or both acting together,
could effectively require the Attorney General
to deport an alien once the Attorney General,
in the exercise of legislatively delegated
authority, had determined that the alien should
remain in the United States. Without the veto
provision, this could have been achieved only
by legislation requiring deportation. A veto by
one House under 244(c)(2) cannot be justified
as an attempt at amending the standards set
out in 244(a)(1), or as a repeal of 244 as
applied to Chadha. The nature of the decision
implemented by the one-House veto further
manifests its legislative character. Congress
Table 22, Continued. Summary of Burger Court Separation of Powers Cases, 1969 – 1986

336
Case Branches Holding
SOP
Theory
Vote Majority
Minorit
y
Pres. House Sen.
Court’s
Segal/
Cover
Average
must abide by its delegation of authority to
the Attorney General until that delegation is
legislatively altered or revoked. Finally, the
veto's legislative character is confirmed by the
fact that when the Framers intended to
authorize either House of Congress to act
alone and outside of its prescribed bicameral
legislative role, they narrowly and precisely
defined the procedure for such action in the
Constitution.
Bowsher v. Synar
478 U.S. 714
(July 7, 1986)

C and E The Court struck down the automatic
reduction provisions of the Graham-Rudman
Act for the following reasons: (1) the Act
uses the Comptroller’s executive powers; (2)
executive powers may not be vested with the
Congress; (3) Congress may remove the
Comptroller, therefore he is an agent of the
Congress. The Comptroller therefore, may
not constitutionally exercise the executive
powers given to him, which negates the
Graham-Rudman Act’s automatic reduction
mechanism. The Court viewed the
Comptroller as an executive officer because
of his executive function. The fact that the
Comptroller served at the pleasure of
Congress and can be removed by Congress
violated separation of powers. Bowsher
represents a sharpening of the limits on
Congress’ control over executive
appointments – just as Buckley prevents
Congress from appointing executive officers,
so Bowsher prevents it from removing them

Form. 7 – 2 Burger (o)
Brennan
Marshall
Powell
Rehnquist
Stevens
O’Connor
White
Blackm
un
Reagan 253 D

182 R

99
th

53 R

47 D
Burger 5
Table 22, Continued. Summary of Burger Court Separation of Powers Cases, 1969 – 1986

337

Chapter 5

The Rehnquist Court:

Exposing the Limits of Judicial Modeling
1986 – 2005

I. Introduction
Observations of the jurisprudence of the Rehnquist Court often center on the
relative conservatism of the Court and thus focus on jurisprudential areas where the
liberal/conservative dynamic is most at play.
266
While this type of analysis
admittedly captures the most cases, both in raw numbers and legal issues, it does not
address the separation of powers, which as stated previously, is resistant to the
liberal/conservative dynamic. Any predictions for voting patterns in separation of
powers cases on the Rehnquist court are especially prone to failure because of the
uniquely political divided attitude the court took during most of its tenure.
The Rehnquist Court is, and has been throughout its existence, an
ideologically divided Court which often fails to produce majority opinions.
The practical reality, at least since 1991 when Clarence Thomas joined the
Court, is that results usually depend on whether the conservative bloc of
Rehnquist, Scalia, and Thomas can get the votes of O’Connor and Kennedy.
Frequently they do and many cases have been decided by five to four
margins with that group in the majority…But this description of the internal
political reality of the Rehnquist Court does not reveal its constitutional
jurisprudence (Chemerinsky 2002, 195).

266
See for example Chemerinsky 2002 and Friedelbaum 1994.

338
While the Burger Court exhibited the occasional formalistic tendency – most
notably in INS v. Chadha,
267
the Rehnquist Court was far more functionalist. By
looking at a combination of historical practice and legislative intent, the Rehnquist
Court would reach decisions that seemed without jurisprudential consistency.
Chemerinsky and others point to a key distinction between the Rehnquist Court’s use
of history and other instances of the historical approach. The Rehnquist Court was
not so much concerned with historical intent as it was with historical practice.
I suggest that the Rehnquist Court strongly emphasizes history in its
decision making … Moreover, the Rehnquist Court’s approach to history is
different from its predecessors. Previously, the Court focused on statements
from the Constitutional Convention or from the Federalist Papers as the
primary evidence of the framers’ intent. But the Rehnquist Court’s analysis
quite often centers on historical practices at the time of the ratification of a
constitutional provision as evidence of meaning (Chemerinsky 2002, 196).

The Court’s functionalist perspective in separation of powers cases was led
by one of the defining features of the Rehnquist Court – its centrist coalition.
Centrist Coalition:
To the surprise of many and the consternation of some, an unexpected
community of interest seems to have developed, within a pivotal cadre
consisting of Justices Kennedy, O’Connor, and Souter, that may control the
outcome of critical decisions. Should this coalition remain essentially
undisturbed, much of the corrosive effect of the Rehnquist Court’s “hard
core,” represented by the Chief Justice joined by Justices Scalia and
Thomas, may be neutralized and eventually set to naught (Friedelbaum
1994, 146).

267
The Court declared unconstitutional the legislative veto and relied exclusively on statements from
the Federalist Papers and the text of the Constitution

339
II. The Rehnquist Court
A. Justice Antonin Scalia
Prior to joining the Court, Justice Scalia held a variety of legal positions,
many of which allowed him to deal with government structure and specifically
separation of powers issues. From 1972 to 1974, he chaired the Administrative
Conference of the United States, a government agency that examines federal
administration and procedures. From 1974 to 1976, he served as Assistant Attorney
General at the Office of Legal Counsel. This branch of the Department of Justice
advises the executive branch on constitutional matters, involving a great deal of work
in the area of separation of powers. From 1977 to 1981 he was a professor of
administrative law at the University of Chicago. Finally, in 1982, he was appointed
to the Court of Appeals for the District of Columbia Circuit. As the federal circuit for
the nation's capital, this court handles a majority of cases involving separation of
powers
268
(Gelfand and Werhan 1990, 1447).
This section will lay special emphasis on the jurisprudence and voting
behavior of Justice Antonin Scalia. As the lone dissenter in two of the most
significant separation of powers cases in decades, his opinions and theoretical

268
Scalia's service in the Office of Legal Counsel of the U.S. Department of Justice and on the U.S.
Court of Appeals for the District of Columbia Circuit meant that he had extensive experience with
the federal government's structure and operation prior to his ascendancy to the Supreme Court.
This background seems to be a basis for much of the complexity of his separation of powers
analysis. One also may assume that Justice Scalia's background has fostered the development of his
concepts of executive authority, which are often the focus of his opinions.

340
framework give insight to an institutional perspective of the American government
not widely shared throughout the history of the Court.
For Justice Scalia, a formalist approach to separation of powers cases is the
only approach. He has come to define this approach more than any other modern
justice. Glefand and Werhan (1990, 1465) characterize Justice Scalia as having “a
distinctive, and insistent, voice for his formalistic approach to separation of powers.”
He has consistently eschewed functionalist balancing tests (Morrison at 697 – 698)
and never fails to remind us that the provided us with a "prescribed structure”
(Mistretta at 426). As a result of this separation of powers formalism, Justice
Scalia was the sole dissenter in Morrison v. Olson
269
and Mistretta v. United
States
270
. He was the sole dissenter, because the other justices of the Rehnquist
Court have consistently declined to adopt Scalia’s strict formalism. This was in
sharp contrast to the later separation of powers rulings during the Burger Era.
271

Justice Scalia's formalist approach finds a clear basis in a rule-based method
of judicial decisionmaking. Justice Scalia's opinions stem from his belief
that rules limit the government's structure, and those rules must be followed
without exception. This rule-based approach fuels the formalism guiding
his opinions on the separation of powers. Justice Scalia finds ample support
for his rule-based formalism in the Constitution's categorical separation
language, which he uses to support bright-line distinctions between the
branches (Tanielian 1995, 973).

269
Scalia dissented from the majority's approval of independent counsel who is not appointed by
executive branch and whose removal is limited.
270
Scalia dissented from the majority's approval of placing the U.S. Sentencing Commission within
the judicial branch.
271
At the time of Justice Scalia's appointment in 1986, the Court appeared to have embraced a formal
reading of the separation of powers doctrine. The Court had taken a formalism approach in deciding
Bowsher v. Synar (1986); INS v. Chadha, (1983); and Buckley v. Valeo (1976). With Scalia on
board, it seemed apparent the Court would continue on the formalism path with a capable new
leader in the separation of powers field. The Rehnquist Court’s separation of powers came,
therefore, as a bit of a sea change in jurisprudence.

341

Scalia’s point of view on separation of powers was first most glaringly on
display prior to his ascendancy to the Supreme Court. For that, one can look at the
district court opinion in Synar v. United States, 626 F. Supp. 1374 (D.D.C. 1986).
This opinion,
272
which was later affirmed by the Supreme Court in Bowsher v. Synar
(1986),
273
was issued per curiam by a three judge panel.
274
The opinion, however,
closely mirrors Justice Scalia's later opinions, and it is widely believed that then-
Circuit Judge Scalia was the author (Schwartz 1990; Foote 1988). The Synar
opinion was consistent with Justice Scalia's later opinions in the field and relied on
the importance of rule-based formalism in analyzing the separation of powers.
The first separation of powers case Justice Scalia heard as a member of the
Supreme Court was Morrison v. Olson. In Morrison, Justice Scalia was the lone
dissenter as the Court upheld the constitutionality of the independent counsel
provision of the Ethics in Government Act. Justice Scalia launched a highly critical
attack on the majority's functionalism. He summarized the Court's holding in
Morrison by stating:
Taking all things into account, we conclude that the power taken away from
the President here is not really too much. The next time executive power is
assigned to someone other than the President we may conclude, taking all
things into account, that it is too much (Morrison at 733).

272
The district court held that the U.S. Comptroller General, an officer determined to be removable by
Congress, could not exercise executive functions assigned to him under the Balanced Budget and
Emergency Deficit Control (Gramm-Rudman-Hollings) Act.
273
The Supreme Court, in an opinion by Chief Justice Burger, affirmed the lower court and adopted
the core of its reasoning.
274
In 1986, Justice Scalia was a judge on the U.S. Court of Appeals, District of Columbia Circuit. In
Synar v. United States, then Judge Scalia was the only court of appeals judge on a three judge
district court panel which also included District Judge Johnson and Senior District Judge Gasch.

342

Justice Scalia's formalism has not resulted in dissenting positions in every
case,
275
thus summarizing Justice Scalia's separation of powers jurisprudence is not a
simple task. While he has been, for the most part, a strong advocate of formalism,
his brand of formalism is quite complex in nature and does not yield obvious results.
In effect, he is an excellent case study for why the legal model of judicial behavior
yields ambiguous predictions at best, for even Justice Scalia’s rule-based
formalism
276
is so complex as to be occasionally perplexing. A common theme in
Justice Scalia's separation of powers formalism is his concern for the protection and
advancement of executive power. In modern government, a rigidly formalist
approach to the separation of powers most often will lead to the protection of
presidential power and ultimately to the expansion of executive authority. Justice
Scalia's opinions regarding the independent counsel in Morrison and independent
agencies in Freytag and Synar exhibit such a tendency.
In the end, Justice Scalia's separation of powers opinions most strongly and
consistently demonstrate a strict adherence to a law based on rules. This rationale
steers his analysis, even when such reasoning would not serve to advance or protect
the power of the executive. For example, Justice Scalia's dissent in Mistretta, in

275
He joined the majority in Metropolitan Washington Airports Authority v. Citizens for the
Abatement of Aircraft Noise, Inc. as the Court returned to the formalism it appeared to turn its back
on in Morrison and Mistretta. Also, he wrote the Court's opinion in Lujan v. Defenders of Wildlife.
276
An essential part of Justice Scalia's separation of powers formalism is an adherence to a rules-
based methodology of judicial decision making. A strict rule-based approach is necessary to
achieve the proper constitutional result and to provide courts with a clear rule on which to base
future decisions. Rules-oriented decision making is vital to maintain the constitutional structure
provided for by the Framers.

343
attacking the use of members of the judicial branch in an arguably legislative
capacity, does not explicitly endorse or enhance executive power. The Mistretta
dissent, however, adheres to an interpretation of the separation of powers founded on
a strict, rules-based formalism, and it does so with no less conviction than in his
opinions that implicate executive power.
the regrettable tendency of our recent separation-of-powers jurisprudence . .
. to treat the Constitution as though it were no more than a generalized
prescription that the functions of the Branches should not be commingled
too much--how much is to be determined, case-by-case, by this Court
(Mistretta at 426).

B. Justice Clarence Thomas
Even before advancing to the Supreme Court, Justice Thomas had indicated
his preference for formalism, "applauding Justice Scalia's Morrison dissent"
(Calabresi and Rhodes 1992, 1208).
C. Justice Stephen Breyer
Justice Breyer, while a judge on the U.S. Court of Appeals for the First
Circuit, never addressed a major separation of powers case later considered by the
Supreme Court. Justice Breyer's writings in the field of administrative law, however,
give some indication that he is willing to consider functionalism in separation of
powers field. For example, Justice Breyer has employed a functional analysis of the
use of legislative vetoes. See Stephen Breyer, The Legislative Veto After Chadha, 72
Geo. L.J. 785 (1984) (analyzing legislative vetoes in light of their overall effect on
government operation and system of checks and balances).

344
D. Justice Souter
Justice Souter, since his appointment to the Court in 1990, has joined two
formalism-based opinions. Metropolitan Washington Airports Auth., 501 U.S. 252;
Freytag, 501 U.S. 892 (Scalia, J., concurring).

E. Justice Ruth Bader Ginsberg
Justice Ginsburg, while a judge on the U.S. Court of Appeals for the D.C.
Circuit, wrote opinions in two of the major separation of powers cases that the
Supreme Court later decided. In the case that would become Morrison v. Olson,
Justice Ginsburg, in dissent, reached a functionalist conclusion that Chief Justice
Rehnquist later would adopt.
277
Also she wrote an opinion in the Court of Appeal's
version of CFTC v. Schor.
278

F. Justice Anthony Kennedy
Justice Kennedy wrote a concurrence in Public Citizen v. United States, 491
U.S. 440, 467 (1989), providing for a formal framework in separation of powers
cases so long as "the power has been committed to a particular Branch of the
Government in the text of the Constitution." That opinion, while not accepting
Justice Scalia's strict formalism, did adopt a formal mode of analysis. Justice

277
In re Sealed Case, 838 F.2d 476, 518 (D.C. Cir. 1988), reversed in Morrison v. Olson, 487 U.S.
654 (1988).
278
Schor v. Commodity Futures Trading Commission, 740 F.2d 1262 (D.C. Cir. 1984), reversed at
478 U.S. 833 (1986).

345
Kennedy also joined formalism-based opinions in Metropolitan (1991) and Freytag
(1991). Also, he joined a functionalism based opinion in Mistretta (1989).

III. The Cases
The Framers sought to prevent concentration of state power by dividing it
between the three branches and between the federal and state governments.
Conflicts arise because there are few powers that are explicitly granted by the
Constitution to the Executive. Unlike Congressional powers, most of the President’s
powers are implied. This implication arises from Article II, §1 which simply states
that “The executive power shall be vested in a President.” As Lawrence Tribe
explains, the Court need only consider whether a presidential action is within the
Executive realm as opposed to the Legislative or Judicial in determining the whether
such an action violates separation of powers principles. The specific act need not be
enumerated per se within the Constitution (1988, 210-211). The open nature of this
review, produces most of the domestic separation of powers conflicts. It is important
to point out that certain power bases have been exempt from close constitutional
scrutiny and thus the cases discussed below all center on areas of domestic power
rather than powers of foreign affairs, which are given more leeway.
279
Having stated

279
The Constitution is much more precise in its articulation of the scope of powers held by the
Executive in the realm of foreign affairs. Article II, § 2 explicitly enumerates a number of powers
exclusive to the President (e.g. the powers of the Commander-in-Chief, the power to make treaties
and appoint ambassadors). Beyond these specific provisions in the Constitution, the broader
national security implications of foreign policy dictates that the United States convey a unified

346
these parameters, for this study I have chosen the fourteen most prominent separation
of powers decisions handed down by the Rehnquist Court.
The case selection for this study was a two step process. First I gathered a
list of United States Supreme Court Cases dealing (even in passing) with separation
of powers issues during the Rehnquist Era. From these cases, I chose only those
cases that were decided primarily or distinctly on separation of powers issues. In this
way, the voting patterns of the justices will best represent their behavior in regards to
separation of powers issue and not some other conjoined element, such as First
Amendment rights or Criminal Due Process. Unlike some behavioral studies of the
Supreme Court, the cases in this discussion have not been chosen randomly; rather,
they have been carefully selected because they represent the Court’s strongest
statements on separation of powers during the Rehnquist Era, and because they
permit comparisons covering different sorts of separation of powers conflicts – the
Court versus the Executive, the Court versus the Congress and the Executive versus
Congress. While these cases can be distinguished from each other on facts, ancillary
issues and branches of government involved, the decisions are amazingly consistent
in their adherence to very simply articulated primary constitutional principles of
separation of powers. Each subsequent case cites most or all of the previous cases,

position to the world and that the President bears a special role in that regard (Cohen and Varat
1997; Tribe 1988; Witt 1990).

347
thus denoting that the Court itself considered them as valid precedent and thus
obviously related in deriving a comprehensive separation of powers case law.
280

The Rehnquist Court’s separation of powers jurisprudence begins with the
case of Morrison v. Olson, 487 U.S. 654 (1988). Morrison presented the Court with
a separation of powers case which had far reaching consequences for the ability of
the Executive branch to function without the constant pale of investigation. In
developing the independent prosecutor legislation, Congress solved the
Appointments Clause problem encountered in Buckley v. Valeo, 424 U.S. 1 (1976)
281

by assigning the task of appointing the prosecutor to the federal Judiciary rather than
Congress. The Court found this to be an amenable solution which did not violate
separation of powers. The issue which remained, however, was that of removal of
the independent prosecutor.
In Morrison, Theodore Olson, a senior Justice Department official under
investigation by an independent counsel, declined to respond to a grand jury
subpoena and instead disputed the constitutional authority of the independent
counsel. The case challenged the appointment of independent counsels by the

280
This adherence to precedent – whether real or done (in a more legal realist view) as an
acquiescence to legal form stands contrary to the determination made by Segal and Spaeth (1996)
that these cases are not inter-related. Clearly there is an argument here that these cases are indeed
related and in fact, form a strong line of separation of powers case law.
281
At issue in Buckley was the constitutionality of the Federal Election Campaign Act, which, among
other things, limited the amount of money a candidate for certain federal offices could raise and
spend and created the Federal Election Committee (FEC) to oversee the mandates of the Act. The
Court was divided over the issue of campaign finance, but in a unanimous 8 – 0 decision, the
Justices voiced their firm belief that the FEC violated separation of powers principles ⎯
specifically, the Appointments Clause of the Constitution (Article II, § 2). The Appointments
Clause prohibits Congress from appointing federal officials. The Court found that the FEC
exercised primarily executive functions and therefore its members must be appointed by the
President, not by Congress.

348
Special Division of the D.C. Circuit and limitations upon the President's power to
remove such officers. As had previously been established
282
, the Congress may not
remove an executive officer. In Morrison, however, the Court, in a 7 – 1 decision
held that the Congress may limit the President’s ability to remove an executive
officer. While it had been established that the President’s right removal is limited
when dealing with quasi-legislative or quasi-judicial officers,
283
Morrison restricts
the right of removal of a purely executive officer.
284
As discussed previously, Justice
Scalia was the lone and quite vociferous dissenter.
285

Mistretta v. United States, 488 U.S. 316 (1989), involved the United States
Sentencing Commission, set up by Congress to develop mandatory guidelines that
federal judges would have to apply in setting sentences for federal crimes. Congress
provided that of the seven voting members (all to be appointed by the President with
the advice and consent of the Senate), at least three must be federal judges. The
plaintiffs claimed that this was an unconstitutional delegation of the law-making
power to the Judicial Branch. That is, the plaintiffs argues, Congress was assigning
to the judges on the Commission not the job of interpreting the law, but the job of

282
See Bowsher v. Synar, 478 U.S. 714 (1986).
283
See Humphrey’s Executor v. United States, 295 U.S. 602 (1935) and Weiner v. United States, 357
U.S. 349 (1958).
284
It is hard to imagine a more purely executive function than the right to investigate and prosecute
laws.
285
In dissent, Justice Scalia characterized the independent counsel as no less than a blatant
"fragmentation of the executive power"(Morrison at 733). Justice Scalia succeeded in making his
position on this and all matters of executive power very clear. In invoking the Vesting Clause of
Article II, he warned that it did "not mean some of the executive power, but all of the executive
power” (Morrison at 705). Under Justice Scalia's formalism, the President would have unrestrained
removal authority over all principal officers exercising executive authority.

349
making sentencing policy, a classic legislative function. In an 8 – 1 decision, the
Court rejected this claim of unconstitutional delegation of law-making authority to
the Judicial Branch. It is true, the Court said, that non-judicial duties may generally
not be given to the Judicial Branch. But there are some exceptions, and this was one.
Because the judiciary plays the major role in sentencing, allowing some judges to
participate in the making of guidelines for sentences does not threaten the
“fundamental structural protections of the Constitution.” The Court also rejected a
second argument by the plaintiffs, that the “judiciary’s entanglement in the political
work of the commission undermines public confidence in the disinterestedness of the
Judicial Branch.” Since the sentencing process itself is carried out by the Judicial
Branch, allowing judges to help set the guidelines is an “an essentially neutral
endeavor in which judicial participation is peculiarly appropriate.”
In Mistretta, much like in Morrison, the Court again followed a
fundamentally functionalist approach to uphold the constitutionality of the U.S.
Sentencing Commission. Again, Justice Scalia was the lone dissenter – interjecting
his preference for a far more rigid and formalist approach to the separation of powers
question.
286

In Skinner, Secretary of Transportation v. Mid-America Pipeline Co., 490
U.S. 212 (1989), the Court in a 9 – 0 decision cited its earlier ruling in Mistretta that

286
Justice Scalia found the Sentencing Commission to be an "anomaly beyond equal," having no clear
place in our constitutional structure (Mistretta at 425). So rattled by the majority in this case,
Justice Scalia quipped that the Mistretta decision “makes Morrison seem, by comparison,
rigorously logical” (424).

350
“so long as Congress provides an administrative agency with standards guiding its
actions such that a court could ascertain whether the will of Congress has been
obeyed,” no delegation of legislative authority trenching on the principle of
separation of powers has occurred. At issue here was Section 7005 of the
Consolidated Omnibus Budget Reconciliation Act of 1985 which directed the United
States Secretary of Transportation to establish a system of user fees to be collected
annually to cover the costs of administering pipeline safety programs. Plaintiff, Mid-
America Pipeline filed suit claiming that the Act was an unconstitutional delegation
of the taxing power by Congress to the executive branch. The Court disagreed and
stated that the Act did not violate the nondelegation doctrine because the Act
provided sufficient standards guiding the actions of the Transportation Secretary to
satisfy the normal requirements of the nondelegation doctrine and that neither the
text of the Constitution nor the practices of Congress require the application of a
different and stricter nondelegation doctrine in cases where Congress delegates
discretionary authority to the executive branch under its taxing power.
The Victims of Crime Act of 1984 established a federal source of funds for
programs to compensate and assist crime victims under 18 USC 3013. Part of the
funding would be derived from special assessments derived from persons convicted
of federal offenses. In United States v. Munoz-Flores, 495 U.S. 385 (1990), the
defendant claimed that 18 USC 3013 violated the origination clause. The Court held
in a 9 – 0 that an origination clause claim does not present a nonjusticiable political

351
question and has none of the characteristics that Baker v. Carr, identified as essential
to a finding that a case raises such a question.
287

In Metropolitan Washington Airports Authority v. Citizens for the Abatement
of Aircraft Noise, Inc., 501 U.S. 262 (1991) the Court held that if a review board (or
other oversight board) staffed by Members of Congress is carrying out what are
properly viewed as legislative functions, the board’s own actions must be approved
by both Houses and presented to the President for his veto. The Court rejected
Congress's attempt to transfer its authority over the management of National and
Dulles airports to an independent authority because such a transfer required the
appointment of nine members of Congress to a Board of Review possessing veto
powers over the authority's actions.
In Metropolitan, Congress passed a statute stating that Dulles and National
Airports would be transferred from the federal government to the Metropolitan
Washington Airports Authority, provided that the Authority set up a Board of
Review composed of nine Members of Congress. The Board of Review would have
veto power over any decisions made by the Authority. Challengers to the Act argued
that if the Board of Review were set up with that composition, Members of Congress

287
“Prominent on the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the
impossibility of a court’s undertaking independent resolution without expressing lack of the respect
due coordinate branches of government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of embarrassment from multifarious
pronouncements by various departments on one question.” Baker v. Carr, 369 U.S. 186, 217
(1962).

352
would in effect be administering the airports, a function entrusted to the Executive
Branch.
The Court agreed that the creation of the Board staffed by Members of
Congress would violate separation of powers principles. If the Board’s actions were
viewed as legislative in nature, then Congress was violating the presentment and
bicameralism requirements, since the congressionally-staffed Board would be
making individual decisions that would not be approved by each House or presented
to the President for his possible veto. The action in that instance would be similar to
the legislative veto in INS v. Chadha. Alternatively, the act might be viewed as
giving the Board the power to execute or administer the laws. In that event, the
Board would in be in effect an arm of Congress performing Executive functions.
The Court did not decide which of the two constitutional violations would occur, but
did decide that one or other would definitely occur.
If the power is executive, the Constitution does not permit an agent of
Congress to exercise it. If the power is legislative, Congress must exercise it
in conformity with bicameralism and presentment requirements of Art. I,
section 7 (Metropolitan at 276).

The Court found that congressional membership on such a Board of Review
was an "impermissible encroachment" upon the separation of powers (Metropolitan
at 277). The opinion reasserted the constitutional requirement of clear lines of
distinction between the branches that the Court had de-emphasized in Morrison and
Mistretta.

353
The Rehnquist Court then moved on to two cases, not widely mentioned in
the separation of powers literature. In Freytag v. Commissioner, 501 U.S. 868
(1991), the court found that the assignment of special trial judge by the Chief Tax
Judge does not violate the appointments clause because that trial judge is an inferior
officer. Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992) held that
the award of damages to compensate for a violation of constitutional rights under
Title IX is within the right of the judiciary when Congress has remained silent on the
issue.
In Walter L. Nixon v. United States, 506 U.S. 224 (1993), Walter L. Nixon,
Jr., the Chief Judge of the United States District Court for the Southern District of
Mississippi, was convicted of perjury in 1986 and was sentenced to prison. Congress
began impeachment proceedings. The House of Representatives approved three
articles of impeachment and the Senate, pursuant to its Impeachment Rule XI,
selected a committee to try Nixon and present the findings to the full Senate which
ultimately impeached Nixon on two of the three articles. Nixon filed for a
declaratory judgment in federal district court, arguing that Rule XI violated the
Impeachment Trial Clause of the Constitution, which provides that "[t]he Senate
shall have the sole Power to try all Impeachments" (U.S. Const. art. I, § 3, cl. 6).
He claimed that, because the Senate delegated primary fact finding and testimony-
gathering to a committee, the Senate did not "try" him within the meaning of the
Clause. Chief Justice Rehnquist, writing for a six Justice majority, determined that

354
impeachment procedures are a political question. The Chief Justice applied two
elements of the traditional Baker test – textually demonstrable commitment to a
coordinate branch and lack of judicially manageable standards – to the Impeachment
Trial Clause. He first sought to discern the meaning and import of the term "try."
Citing three slightly varying dictionary definitions, the Court concluded: "Based on
the variety of definitions . . . we cannot say that the Framers used the word 'try' as an
implied limitation on the method by which the Senate might proceed in trying
impeachments." Moving to the term "sole," the Court pointed out that the word
appears only twice in the Constitution. Again the Chief Justice turned to a
dictionary, this time to confirm that the "common sense meaning of the word 'sole' is
that the Senate alone shall have authority to determine whether an individual should
be acquitted or convicted." (Emphasis in original) The Court concluded that the
Framers' use of the term "sole" was a sufficient textual commitment of authority to
the Senate to render the impeachment process nonjusticiable.
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) is an illustration of the
general principle that the federal judiciary’s functions cannot be usurped by
Congress. Here it was established that Congress cannot interfere with the finality of
federal court judgments and that the Congress had violated the separation of powers
when it passed a statute requiring the federal courts to reopen certain cases that had
already resulted in final judgments. The Supreme Court had held in 1991 that certain
private suits for violation of federal securities laws could only be brought within one

355
year after plaintiff discovered the relevant facts, and within three years of the
violation. Congress then passed a statute providing that any suit that had been
dismissed on account of this 1991 holding, and that would have been timely except
for that holding, should be reopened, even if it had already resulted in final judgment
from which no further appeals were possible. The Court struck down this statute by
stating that the Constitution gives the federal courts the exclusive power to “decide”
cases. By ordering the federal courts to reopen final judgments, Congress was
interfering with the “power to decide.”
Dwight J. Loving v. United States, 517 U.S. 748 (1996), held that the
President has the authority to prescribe aggravating factors required to permit court-
martial to sentence United States Armed Forces member to death for murder. The
Court found that Congress’ delegation of power to the President to promulgate
further aggravating factors was proper because of the adherence to the intelligible
principle test and because the President is in the best position to handle military
matters.
In the case of Clinton v. Jones, 520 U.S. 681 (1997) the Court was presented
with the issue of the President’s accountability to the Judiciary in cases of civil
liability. In a 9 – 0 decision, the Court rejected the President’s position that the
Judiciary’s refusal to stay all private actions against him until the completion of his
tenure would violate separation of powers.
288
The Court pointed out that the core

288
Justices Scalia, O'Connor, and Breyer would have upheld the statute under review because it was
not really a veto, but rather a delegation to the President to decline to spend certain items, and was

356
tenants of Article III empower the Judiciary to hear civil litigation involving the
President whether or not he is in office. The Court refused the President’s request
for temporary immunity from civil suits, thereby refusing an expansion of executive
privilege.
In City of Boerne v. Flores, Archbishop of San Antonio, and United States,
521 U.S. 507 (1997), the Court again turned to the fundamental principles of
Marbury v. Madison, 5 U.S. 137 (1803), in ruling that Congress exceeded its
authority under §1 of the Fourteenth Amendment, which reserves its interpretive
power to the judiciary and §5 which gives only limited enforcement power to
Congress. The 6 – 3 decision is a bit deceiving in terms of a reflection on the
Court’s view of separation of powers.
In City of Boerne v. Flores, the Court narrowly circumscribed the scope of
Congress’ authority to legislate under section five of the Fourteenth
Amendment. The Court ruled that Congress may not expand the scope of
rights or create additional rights but, rather, only may provide remedies for
rights recognized by the judiciary (Chemerinsky 2002, 197).

One dissenter, Justice Breyer did not view it as a separation of powers case,
the other dissenters, Justices O’Connor and Souter, gave the separations issue very
little weight. It will be some time until we can be certain of the weight of Boerne in
separation of powers cases. The reliance of the Court on Boerne in future separation
of powers cases will be a good indicator.

accompanied by appropriate standards. The majority rejected the non-delegation approach, opting
instead to see the case as involving Article I bicameralism and presentment issues. See Steven F.
Huefner, The Supreme Court's Avoidance of the Nondelegation Doctrine in Clinton v. City of New
York: More Than "A Dime's Worth of Difference," 49 CATH. U. L. REV. 337 (2000).

357
The Line Item Veto Act was passed by Congress and signed by President
Clinton in April, 1996. The Act gave the President authority, after signing a bill, to
“cancel in whole” selected spending items and certain limited tax benefits (2 U.S.C.
691(a)). Unlike the line item authority exercised by many state governors, the
presidential line item veto required that the President consider legislative history and
the purpose of the law. Then, upon deciding to cancel an item, the President is
required to determine that the cancellation would “(i) reduce the Federal budget
deficit; (ii) not impair any essential Government functions; and (iii) not harm the
national interest” (2 U.S.C. 691(a)(A)). The case of Clinton v. City of New York,
524 U.S. 417 (1998), arose from President Clinton’s first use of the line item veto.
Following the conceptual and formalistic framework of INS v. Chadha, The Court
held in a 6 – 3 decision, that the Line Item Veto Act violated the Presentment
Clause.
289
The Court stated that because a bill became law the moment the president
signed it, his later cancellations amended and partially repealed federal statute.
In the most recent separation of powers case, Miller v. French, 530 U.S. 327
(2000), the Court held by a bare 5 – 4 majority that the automatic stay provision of
the Prison Litigation Reform Act of 1995 (PRLA) does not violate the separation of
powers. Here, the Supreme Court reviewed a statute authorizing automatic
termination of prospective relief entered by federal district courts in certain prison
litigation actions to determine if, among other issues, the statute encroached

289
To hold an action unconstitutional under the Presentment Clause, a court must determine that the
act must be “legislative in its character and intent” and that act “does not comply with the
requirements of bicameralism and presentment.” INS v. Chadha, 462 U.S. 919, 952.

358
impermissibly on core judicial functions in violation of separation of powers
concerns because it imposed a deadline on judicial decisionmaking.
The Court distinguished Miller from the ruling in Plaut in two ways. First,
Plaut involved a legislative attempt to reopen a final judgment dismissing a claim for
money damages, whereas the automatic stay provision suspends the prospective
effect of injunctions, and “prospective relief under a continuing, executory decree
remains subject to alteration due to changes in the underlying law (344).”
290

Second, Congress had altered the underlying law by providing in the PRLA that
courts must make required findings
291
before injunctive relief can be granted in
prison cases and “when Congress changes the law underlying a judgment awarding
prospective relief, that relief is no longer enforceable to the extent it is inconsistent
with the new law” (347).

IV. Testing the Models
A. The Attitudinal Model

290
Citing Pennsylvania v. The Wheeling and Belmont Bridge Co., 54 U.S. 518 (1851) and
Pennsylvania v. The Wheeling and Belmont Bridge Co., 59 U.S. 421 (1855).
291
The Court, quite effectively has created a new limitation on congressional rulemaking: Congress
may not diminish a court's ability to decide cases effectively.

359
Table 23. Attitudinal Analysis of Separation of Powers Cases in the Rehnquist Court, 1986 – 2005

Segal/Cover
Morrison v.
Olson
(1988)
Mistretta v.
U.S. (1989)
8 – 1
Skinner
(1989)

9 – 0
U.S. v.
Munoz
(1990)
Metro.
Wash.
Freytag
v. Comm.
(1991)
9 – 0
Franklin
v. Gwinnett
Nixon v.
U.S. (1993)
Plaut
(1995)
7 – 2
Loving v.
U.S. (1996)
Clinton v.
Jones
(1997)
City of
Boerne
Clinton v.
NY (1998)
Miller
v. French
5 – 4
Rehnquist

-.91 C/e J/c E/c J/c c/E J/c J/c C/j J/c E/c J/e J/c C/e C/j
Brennan

1.00 C/e J/c E/c J/c
B. White

.00 C/e J/c E/c J/c c/E J/c J/c C/j
T. Marshall

1.00 C/e J/c E/c J/c c/E J/c
Blackmun

-.77 C/e J/c E/c J/c E/c J/c J/c C/j
Stevens

-.50 C/e J/c E/c J/c E/c J/c J/c C/j C/j E/c J/e J/c C/e j/C
O’Connor

-.17 C/e J/c E/c J/c E/c J/c J/c C/j J/c E/c J/e c/J e/C C/j
Scalia

-1.00 e/c c/J E/c J/c E/c J/c J/c C/j J/c E/c J/e J/c e/C C/j
Kennedy

-.27 A J/c E/c J/c E/c J/c J/c C/j J/c E/c J/e J/c C/e C/j
Souter

-.34 E/c J/c J/c C/j J/c E/c J/e c/J C/e j/C
Thomas

-.68 J/c C/j J/c E/c J/e J/c C/e C/j
Ginsburg

.36 C/j E/c J/e J/c C/e j/C
Breyer

-.05 J/c E/c J/e c/J e/C j/C

360
Table 24. Voting Correlation Rates of Justices of the Rehnquist Court in Separation of Powers Cases

RehnquistBrennanWhiteMarshallBlackmunStevensO’Connor Scalia Kennedy Souter Thomas Ginsburg Breyer
Rehnquist

* 100
(4)
100
(8)
100
(6)
87.5
(8)
78.6
(14)
78.6
(14)
71.4
(14)
92.3
(13)
70
(10)
100
(8)
66.7
(6)
50
(6)
Brennan

100
(4)
* 100
(4)
100
(4)
100
(4)
100
(4)
100
(4)
50
(4)
100
(3)
n/a n/a n/a n/a
B. White

100
(8)
100
(4)
* 100
(6)
87.5
(8)
87.5
(8)
87.5
(8)
62.5
(8)
85.7
(7)
75
(4)
100
(2)
n/a n/a
T. Marshall

100
(6)
100
(4)
100
(6)
* 83.33
(6)
83.33
(6)
83.33
(6)
50
(6)
80
(5)
50
(2)
n/a n/a n/a
Blackmun

87.5
(8)
100
(4)
87.5
(8)
83.33
(6)
* 100
(8)
100
(8)
75
(8)
100
(7)
100
(4)
100
(2)
n/a n/a
Stevens

78.6
(14)
100
(4)
87.5
(8)
83.33
(6)
100
(8)
* 71.4
(14)
64.3
(14)
84.6
(13)
80
(10)
75
(8)
100
(6)
50
(6)
O’Connor

78.6
(14)
100
(4)
87.5
(8)
83.33
(6)
100
(8)
71.4
(14)
* 78.6
(14)
84.6
(13)
80
(10)
75
(8)
33.3
(6)
83.3
(6)
Scalia

71.4
(14)
50
(4)
62.5
(8)
50
(6)
75
(8)
64.3
(14)
78.6
(14)
* 84.6
(13)
70
(10)
87.5
(8)
50
(6)
66.6
(6)
Kennedy

92.3
(13)
100
(3)
85.7
(7)
80
(5)
100
(7)
84.6
(13)
84.6
(13)
84.6
(13)
* 80
(10)
75
(8)
83.3
(6)
50
(6)
Souter

70
(10)
n/a 75
(4)
50
(2)
100
(4)
80
(10)
80
(10)
70
(10)
80
(10)
* 75
(8)
66.6
(6)
83.3
(6)
Thomas

100
(8)
n/a 100
(2)
n/a 100
(2)
75
(8)
75
(8)
87.5
(8)
75
(8)
75
(8)
* 66.6
(6)
50
(6)
Ginsburg

66.7
(6)
n/a n/a n/a n/a 100
(6)
33.3
(6)
50
(6)
83.3
(6)
66.6
(6)
66.6
(6)
* 50
(6)
Breyer

50
(6)
n/a n/a n/a n/a 50
(6)
83.3
(6)
66.6
(6)
50
(6)
83.3
(6)
50
(6)
50
(6)
*

361
Table 23 shows the results of an attitudinal analysis of judicial voting
patterns in separation of powers cases. The Justices are listed beginning with
Rehnquist, C.J. and then in order of appointment starting with Brennan, J. and
ending with Breyer, J. The Segal/Cover Scale is used to represent the relative
conservatism/liberalism of all of the Justices who have ruled in the cases at hand,
with a value of -1.00 denoting the most conservative and 1.00 the most liberal.
292

What catches the eye, almost at once, is the degree to which extremely preferentially
diverse Justices reached near perfect unanimity in their rulings.
293
This is in stark
contrast for example, to the Vinson Court who were ideologically homogeneous, but
only agreed 11% of the time in separation of powers cases. Out of the fourteen cases,
the court voted unanimously six times (9 – 0 in Skinner, Munoz-Flores, Franklin,
Walter L. Nixon, Loving, and Clinton v. Jones), with only minor dissents three times
(7 – 1 in Morrison, 8 – 1 in Mistretta and 7 – 2 in Plaut) and split the vote only once
(5 – 4 in Miller) at a time when the Court was much more ideologically
homogeneous than earlier in the Rehnquist era. According to the attitudinal model,
the wider the difference in the Segal/Cover ranking between two justices, the less
likely they are to rule similarly in cases before them (Segal and Cover 1989; Segal
et. al. 1995). Segal and Spaeth state, “Simply put, Rehnquist votes the way he does

292
Originally designed and calculate by Jeffrey Segal and Albert Cover in 1989, the Segal/Cover scale
uses editorials regarding Justices at the time of their nomination from newspapers across the
country (weighing for readership and balancing for geography) to measure their relative
conservatism/liberalism (Segal and Cover 1989). This measure was expanded in scope and breadth
in 1995 (Segal et. al. 1995). The aggregate results can be found in Epstein et. al. 1996, 451.
293
This is in stark contrast for example, to the Vinson Court who were ideologically homogeneous,
but only agreed 11% of the time in separation of powers cases (see Chapter 2).

362
because he is extremely conservative; Marshall voted the way he did because he is
extremely liberal” (1989, 64). However, in the area of separation of powers cases,
one reaches the rather astonishing result of Chief Justice Rehnquist (Segal/Cover
value of -.91) and Justice Marshall (Segal/Cover value of 1.00) voting identically in
all five of the separation of powers cases brought before the both of them during the
Rehnquist Court.
294

The attitudinal model cannot correctly predict any of the outcomes addressed
in this study. The correlation between ideology and the voting patterns of Justices in
separation of powers cases is non-existent. What we are confronting here are the
inherent methodological problems in the application of the attitudinal model to
separation of powers cases. First, as is evidenced by the 100% voting correlation of
Rehnquist and Marshall, it is nearly impossible in any given dispute between two
branches of government, to define the “liberal” or “conservative” preference.
295

There are no established, consistent positions on the conservative or liberal ideal of
separation of powers. Because one cannot accurately define liberal or conservative
behavior in these instances, it is not clear how an attitudinalist would predict the
particular behavior of a particular justice in any of these cases. However, it is safe to

294
Just to contrast Marshall and Rehnquist’s 100% agreement rate on separation of powers issues,
they agreed only 33.6% of the time in criminal procedure cases, 39.1% in civil rights, 32.2% in civil
rights, etc. Their overall average was around the 50% mark (Epstein et. al. 1996, 524-525).
Marshall and Rehnquist’s unanimity vis a vis separation of powers also occurred during their joint
tenure on the Burger Court (see e.g. Bowsher v. Synar and INS v. Chadha).
295
In contrast, most other areas of law are easily defined by the conservative and liberal moniker.
Even when conservatives and liberals share a certain value, (i.e. freedom of speech as a
fundamental right), they will likely disagree about context (i.e. pornography), form (i.e. flag
burning) and competing interests (i.e. national security).

363
say that they would not predict that Justices with such extremely diverse preferences
would rule unanimously. Short of arbitrarily assigning liberal and conservative tags
on each side of an issue, the attitudinal model could be only applied by assuming that
a Justice voting her preferences could mean ruling in favor of the branch of
government that shares her values. In other words, the only effective way a Justice’s
policy preference could manifest itself in separation of powers context, would be if
she ruled in favor of the branch of government most closely associated with her
philosophy. Still, even that approach does not produce an expected value. The
strategic model, as discussed below, attempts to use just such an analysis and yields
equally unconvincing results. The second methodological handicap of the attitudinal
model is its exclusive reliance on exogenous preferences, thus, negating from
consideration, the endogenous institutional preferences that could more fully explain
the revealed voting patterns. A discussion of the new institutionalism, below, reveals
a more coherent explanation of judicial behavior in separation of powers cases based
on internalized institutional preferences. In short, separation of powers issues resist
exogenous preference modeling and simply do not conform to attitudinal theories of
judicial behavior.

364
B. The Strategic Model
The two most common methods of applying the strategic model to judicial
decision making are Eskridge scales and game theoretics, however for purposes of
this discussion, I examined the political affiliation of competing branches of
government and attempted to assess the Court’s position relative to that affiliation.
296

Table 28 shows the results of a strategic analysis of judicial behavior in the cases at
hand. We begin with an average Segal/Cover number which tells us how the court
would presumably act were it not constrained.
297
Then, by identifying the ruling
parties within Congress and the Executive Branches, I tried to identify any active
constraints on judicial behavior. The results indicate that the strategic model
accurately predicts 9 out of the 14 outcomes. This 64.2% correlation rate lead to the
conclusion that no predictable political constraints are imposed by the political
system upon the decision making of the Supreme Court in separation of powers
cases.

296
The examination of more detailed political preferences of Congress and the Presidency through
records of the relevant Congressional Committee, detailed Congressional membership and
Executive branch regulations is ripe for research and conversion to more traditional representations
of the Strategic Model.
297
This Segal/Cover average has been independently derived for this study by calculating the simple
arithmetic mean of the ruling Justices’ Segal/Cover values.

365
Table 25. Strategic Model of Separation of Powers Cases in the Rehnquist Court

PresidentHouseSenate
Supreme Court
Segal/Cover
Average
Expected
Outcome
Actual
Outcome

Morrison (1988)

R D D -0.17 E/c C/e
Mistretta (1989)

R D D -0.18 J/c J/c
Skinner (1989)

R D D -0.18 E/c E/c
Munoz-Flores (1990)

R D D -0.18 J/c J/c
Metropolitan (1991)

R D D -0.33 E/c E/c
Freytag (1991)

R D D -0.33 J/c J/c
Franklin (1992)

R D D -0.52 J/c J/c
Nixon (1993)

D D D -0.52 J/c C/j
Plaut (1995)

D R R -0.40 C/j J/c
Loving (1996)

D R R -0.40 C/e E/c
Clinton (1997)

D R R -0.40 J/e J/e
Boerne (1997)

D R R -0.40 C/j J/c
Clinton v. NY (1998)

D R R -0.40 C/e C/e

Miller (2000)
D R R -0.40 C/j C/j

Key: D = Democrats R = Republican C = Congress J = Judiciary E = Executive
C/e = Court sided with Congress in dispute between Congress and Executive
Boldface = Strategic Model correctly predicts outcome

Morrison, Nixon, Plaut, Loving, and Boerne show that the strategic model
simply does not work in predicting these separation of powers cases. In all five
cases, the Court ruled against its own party affiliation. A conservative court in
Morrison and Loving with a conservative Executive and liberal Congress voted
against the Executive; but in Nixon, Plaut, and Boerne, an even more conservative

366
Court with a liberal Executive and a conservative Congress voted against Congress.
In these cases, the Court should have bolstered its conservative allies but instead
defeated them. In instances where the House of Representatives and Senate are ruled
by different political parties, the effect of Congress is neutralized and is therefore
unhelpful as a predictive indicator. This is indicative of the limitations of the
strategic model.
There is no doubt that separation of powers is an area that is ripe for the
effectuation of personal policy preferences by Justices. As Posner states, “…the
elastic language and obscure history of many constitutional provisions give the
judges great scope to translate their policy preferences into constitutional law”
(1986, 584). However, he goes on to acknowledge certain constraints upon the
judiciary such as risk aversion and stabilization of public policy. This is a common
strategic approach. But how does one present a utility function which accurately and
completely represents all of a justice’s preferences and constraints?
298
The
weaknesses of the strategic model in analyzing separation of power cases are
indicative of the problems with the theory in general. First, the game theoretic or
economic model is indelibly linked to historical/interpretive analysis. The accuracy
of the model is solely dependent on this type of information. The key question then
becomes, does it add anything to the raw historical analysis? Advocates of the
strategic model would argue that the model can then be generalized and used as a

298
Knight and Epstein attempted such an analysis in “On the Struggle for Judicial Supremacy”
(1996), in which they attempt a strategic analysis of the first separation of powers case, Marbury v.
Madison.

367
predictive mechanism for future cases. As a review of our cases shows, a predictive
model cannot be achieved in separation of powers cases. One cannot simply say that
if the dispute is between Branch A and Branch B and some particular political
circumstances exist, then the ruling will always be X.
This leads us to a second, and perhaps more fundamental problem – it is not
at all clear where the preferences of the Justices have been formulated. The strategic
school holds that the Justices’ policy preferences are exogenous to their institution.
Yet, the evidence here does not support that contention, as can be viewed by the
unanimous decisions in Skinner, Nixon, Franklin, Loving, and Clinton v. Jones; all
decided by very politically diverse Justices. If anything, the fact that Justices of such
varying experience and ideology would vote identically (see again Rehnquist and
Marshall) points to a type of institutional socialization or endogenous policy
preference formation.
299

299
The strategic model would benefit from a closer analysis of its foundational author, Walter
Murphy. As he points out, Supreme Court Justices are well aware of their role as part of the ruling
elite and as such, take on values other than pure self-preference (1964). His analysis leads to the
conclusion that Justices’ preferences are formed by their institution or by their membership in the
regime and are therefore endogenous to their experience as Justices.

368
C. Regime (Ruling Coalition) Theory
Table 26. Ruling Coalitions Analysis of Rehnquist Court Separation of Powers Cases

President

House Senate
Two-Thirds
Majority
in Congress?
Expected
Outcome
Actual
Outcome
Morrison (1988)

R D D No E/c C/e
Mistretta (1989)

R D D No Cannot Predict* J/c
Skinner (1989)

R D D No E/c E/c
Munoz-Flores (1990)

R D D No Cannot Predict J/c
Metropolitan (1991)

R D D No E/c E/c
Freytag (1991)

R D D No Cannot Predict J/c
Franklin (1992)

R D D No Cannot Predict J/c
Nixon (1993)

D D D No C/j C/j
Plaut (1995)

D

R R No Cannot Predict J/c
Loving (1996)

D R R No E/c E/c
Clinton v. Jones (1997)

D R R No E/j

J/e

Boerne (1997) D R R No

Cannot Predict

J/c
Clinton v. NY (1998)

D R R No E/c C/e
Miller (2000)

D R R No Cannot Predict C/j

Key: D = Democrats R = Republican C = Congress J = Judiciary E = Executive
C/e = Court sided with Congress in dispute between Congress and Executive
Boldface = Ruling Coalition Model correctly predicted outcome
* = The dispute is not with the dominant coalition and/or the dominant coalition is not clear

369
The results indicate that the ruling coalition theory is unable to make any
prediction in seven of the fourteen cases, and only correctly predicts four of the
remaining cases, for an overall correlation rate of 28.5%. The limitations of this
approach in separation of powers cases are similar to the fundamental problem
encountered with both the attitudinal and strategic models. All three approaches
look to exogenous factors in determining judicial decision making instead of
focusing on the endogenous principles which guide the Justices.
A ruling coalition theory of judicial decision making constructs the Court as a
member of the political regime. Justices act as rulers within the political regime and
as such, make decisions which best preserve the stability of the overall system. This
type of systems analysis also allows for the internalization of the preferences of the
Congress and the Executive. In other words, congressional and presidential
influence in decision making is not looked upon as a constraint, as viewed in the
strategic model, but as part of an overall systemic force. This type of analysis is
especially helpful in explaining why the Court ruled as it did in Skinner,
Metropolitan, Nixon and Loving and why, for example administrative agencies are
allowed to function with such broad monopolizations of power.
300

An essential byproduct of the Court’s allegiance with the ruling coalition is
the legitimization of the entire regime, of which the Court is a member (Shapiro
1981, 22 – 24). This legitimization function most commonly requires the Court to

300
Posner has suggested that efficiency is the primary argument for the court’s acquiescence on the de
facto unconstitutional fourth branch of government.

370
rule in favor of the ruling elites. However, Shamir (1990) and others have suggested
that the Court will sometimes rule against the ruling coalition on minor matters that
the Court doesn’t really care about, just so that its allegiance to the ruling coalition is
not patently obvious. We can distinguish separation of powers cases from that
scenario in two ways: first, the Court has fairly consistently ruled against the ruling
coalition (not just once in a while) and second, these separation of powers cases
resulted in landmark rulings, in other words there is every reason to believe that the
Court did care a great deal about their outcome.
It is important at this point to distinguish between the potential types of
legitimization the Court’s rulings may provide. First there is the legitimization of the
political system, which generally means ruling in favor of the ruling coalition (Dahl
1957). However, as this study shows, it is not the case in separation of powers
issues. Second, there is the legitimization of the constitution which leads to the
preeminence of the rule of law. This adherence to fundamental constitutional
principles is not part of the ruling coalition theory and indeed, negates its basic
tenant. Because one comes to an “either/or” situation, that is, either the Court rules
in favor of the ruling coalition or it follows the rule of law, we are put in the
uncomfortable position of defending a weak hypothesis. The rule of law, on its own,
is certainly problematic and can be too easily dismissed through legal analysis of
separation of powers cases and the seeming disparity among them. For example,
recall the Court’s development (without regard to case law or constitutional

371
principles) of inferior versus principal executive officers in order to justify its
contradictory rulings in Buckley and Morrison. While neither of these traditionally
articulated types of legitimization are sufficient to explain the behavior of the Court
in separation of powers cases, the defense of the constitutional system most
accurately describes the Court’s behavior. What is needed is an institutional
construct in which the rule of law is part of a larger construct of the Court’s mission
and goals.
One can summarize the problems of applying a ruling coalitions analysis to
separation of powers cases in the following manner: 1) The Court appears to have a
self-interested role not normally recognized by regime theorists. That is, in
separation of powers cases, the Court protects the judiciary against any and all
coalitions, ruling or otherwise. 2) The Court must decide between ruling elites, not
between rulers and non-rulers, thus there is no clear cut indication as to which way it
should rule, unless there is an overwhelming 2/3 coalition in the Congress. Except
for Nixon, none of the cases at hand presented the court with such a majority in
Congress. When ruling coalitions divide on an issue, it is no longer clear as to which
faction constitutes the effective ruling coalition; in other words the ruling coalition
becomes very difficult to identify. No straight party majorities existed during the
periods of 1988 – 1992 and 1994 – 2000. The sole example (for purposes of this
study) of a straight party majority was in 1993 and predictably, the Court ruled
against itself in a dispute between the Judiciary and the Congress (see Nixon). This

372
does not negate the possibility of cross-party majorities. This was most likely in
1976 with 276 Democrats comprising 63% of the House of Representatives, yet even
with that level of unprecedented party strength, the Court ruled against Congress in
Buckley v. Valeo. 3) When ruling coalitions divide over an issue, the Court steps in
and makes decisions which have, as their underlying. logic something other than
supporting ruling elites. They appear to have a more fundamental constitutional and
jurisprudential foundation for their decisions.

D. New Historical Institutionalism
Figure 7 is a historical new institutionalist decision tree, establishing a series
of four questions which encompass the ideas of jurisprudential regimes, institutional
maintenance and the mission of the Court. By placing the queries in their specific
order, the chart shows the relative importance of each institutional construct in
relation to separation of powers cases. At each point of the decision tree, a “yes”
answer results in the expected opinion of the court from an institutionalist
perspective. A “no” answer leads to the next question and so on, until a “yes”
answer is reached. If none of the queries along the decision tree address the issue at
hand, than the model fails to predict any outcome.

373
Figure 7. Historical New Institutionalist Decision Tree for Rehnquist Court Separation of
Powers Cases
That branch will likely preserve
power without encroachment.
Yes
Yes
Yes
Is there an explicit
textual (i.e.
constitutional) basis of
power for one of the
branches?
Is the Judiciary
involved in the
dispute?
Is the Court being
asked to disrupt an
established power
arrangement?
Is the Court being
asked to legitimize a
new expansion of
power?
Court will refuse new expansion
of power.
Maintain or even expand judicial
power.
Do not interfere with the
established power arrangement.
Yes
No
No
No
No
Cannot predict
Jurisprudential
Regimes
Institutional
Maintenance

Mission of Court
Separation of Powers
case

Nixon
Mistretta
Munoz-Flores
Freytag
Franklin
Plaut
Clinton v. Jones
Boerne

Skinner
Loving

Metropolitan
Clinton v. NY

The results are very encouraging. Using the established criteria, the results
indicate that an institutional approach to judicial decision making in separation of

374
powers cases yields an 86% correlation rate with 12 of the 14 cases predicted
correctly. In cases where there is a constitutional attribution of power to one branch
to the exclusion of others, the Court will uphold and defend that power, even at its
own detriment (see Nixon). In separation of powers disputes involving the judiciary,
the institutional maintenance component of the Court’s mission will always lead it to
preserve and/or expand its own power base. Thus the nearly unanimous rulings of
Mistretta, Munoz-Flores, Freytag, Franklin, Plaut, Clinton v. Jones and the majority
opinion in Boerne
301
are all highly predictable as they are at their core, institutionally
based. In cases not involving the judiciary, the court will seek to stop the expansion
of power or the encroachment of one branch upon the other. In Skinner and Loving,
the Court refused to negate a well established peace and in Metropolitan and Clinton
v. New York, the Court refused to sanction new expansions of power.
Which of the case do not fit the institutional model? During the Rehnquist
Court, there are only two: Morrison and Miller. The perplexing case of Morrison
allows for a discussion of the underlying constitutional tension between separation of
powers and checks and balances. If an institutional perspective maintains that the
Court seeks to adhere to fundamental constitutional principles, then there must be
some allowance for the Court to weigh the benefits of strictly enforcing power
divisions versus the systemically desirable checks created by some overlap of power.
In retrospect, Morrison was the perfect opportunity for the court to impose a strong

301
Note again that the dissent in Boerne did not even view it as a separation of powers case. If they
had, institutional theory would likely assert that the vote would have been unanimous or near
unanimous.

375
check on the Executive while only minimally abridging its powers, if at all.
However, such an analysis is only possible after the fact and as such cannot be
accurately predicted by the institutional model.
302
In Miller, the only decision split 5
– 4, the court stated that the automatic stay provision of the PRLA stands for the
proposition that Congress has the power to revise or suspend judicial decisions as
long as those decisions are not final (as in Plaut) and as part of an overall
implementation of new legal standards.

V. Conclusion
A review of the separation of powers decisions by the Rehnquist Court has
shown us that this area of law is ripe for a comparative analysis of the predictive and
explanatory powers of various theories of judicial decision making. The New
Historical Institutionalism, by nature of its attention to jurisprudential regimes, the
mission of the Court and the unique institutional role of the Court within the
governmental structure, provides us with unique insights into the development of
separation of powers doctrines in the modern era. By integrating history, law and
institutional context, this study has proposed a decision tree composed of a set of
queries to analyze and perhaps even predict the outcome of separation of powers
cases.

302
While limiting the President’s control over his own branch does not fit into traditional notions of
separation of powers, it is consistent with the 20
th
century development of administrative agencies.

376
Cases Cited

City of Boerne v. Flores, Archbishop of San Antonio, and United States, 1997. 521
U.S. 507.

Clinton v. City of New York, 1998. 524 U.S. 417.

Clinton v. Jones, 1997. 520 U.S. 681.

Franklin v. Gwinnett County Public Schools, 1992. 503 U.S. 60.

Freytag v. Commissioner, 1991. 501 U.S. 868

Loving, Dwight J. v. United States, 1996. 517 U.S. 748.

Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft
Noice, Inc., 1991. 501 U.S. 262.

Miller v. French, 2000. 530 U.S. 327.

Mistretta v. United States, 1989. 488 U.S. 316.

Morrison v. Olson, 1988. 487 U.S. 654.

Nixon, Walter L. v. United States, 1993. 506 U.S. 224.

Plaut v. Spendthrift Farm, Inc., 1995. 514 U.S. 211.

Skinner, Secretary of Transportation v. Mid-America Pipeline Co., 1989. 490 U.S.
212.

United States v. Munoz-Flores, 1990. 495 U.S. 385

377
The Natural Courts of the Rehnquist Era
September 26, 1986 – 2005

Rehnquist 1

September 26, 1986 – February 18, 1988

Members: Rehnquist (appointed Sept. 26, 1986), Brennan, B. White, Marshall,
Blackmun, Powell (retired June 26, 1987), Stevens, O’Connor, Scalia
(appointed Sept. 26, 1986).

Rehnquist 2

February 18, 1988 – October 9, 1990

Members: Rehnquist, Brennan (retired July 20, 1990), B. White, Marshall,
Blackmun, Stevens, O’Connor, Scalia, Kennedy (appointed Feb. 18,
1988).

Rehnquist 3

October 9, 1990 – October 23, 1991

Members: Rehnquist, B. White, Marshall (retired October 1, 1991), Blackmun,
Stevens, O’Connor, Scalia, Kennedy, Souter (appointed Oct. 9, 1990).

Rehnquist 4

October 23, 1991 – August 10, 1993

Members: Rehnquist, B. White (retired July 1, 1993), Blackmun, Stevens,
O’Connor, Scalia, Kennedy, Souter, Thomas (appointed Oct. 23,
1991).

378
Rehnquist 5

August 10, 1993 – August 3, 1994

Members: Rehnquist, Blackmun (retired Aug. 3, 1994), Stevens, O’Connor,
Scalia, Kennedy, Souter, Thomas, Ginsburg (appointed Aug. 10
1993).

Rehnquist 6

August 3, 1994 – September 3, 2005

Members: Rehnquist (died Sept. 3, 2005), Stevens, O’Connor, Scalia, Kennedy,
Souter, Thomas, Ginsburg, Breyer (appointed Aug. 3, 1994).

379
Table 27. Summary of Rehnquist Court Separation of Powers Cases

Case Branches Holding SOP
Theory
Vote Majority Minority Notes
Morrison v.
Olson
487 U.S. 654
(1988)
C/e Ind. Counsel is “inferior” officer for purposes
of appt. clause, the judges don’t violate
executive function because they don’t
supervise indp’t counsel and no SOP violation
to circumscribe Pres. Ability to remove or
oversee ind. counsel

Functio
nalist
7 – 1 Rehnquist (o)

Brennan
White
Marshall
Blackmun
Stevens
O’Connon

Kennedy n/p

Scalia
Mistretta v.
U.S.
488 U.S. 361
(1989)
J/c Sentencing Commission with judges on them
don’t violate legislative function

Functio
nalist
8 – 1 Rehnquist
Brennan
White
Marshall
Blackmun (o)
Stevens
O’Connor
Kennedy

Scalia
Skinner v. Mid-
America
Pipeline, Co.
490 U.S. 212
(1989)
E/c An Act directing the Secretary of
Transportation to establish user fees for Gas
Pipelines is not an unconstitutional delegation
of the taxing power by Congress to the
Executive

Functio
nalist
9 – 0 Rehnquist
Brennan
White
Marshall
Blackmun
Stevens
O’Connor (o)
Scalia
Kennedy

United States v.
Munoz-Flores
495 U.S. 385
(1990)
J/c Origination clause claims are NOT
nonjusticiable political questions – that would
violate SOP. Private individuals can bring an
SOP claim.
9 – 0 Rehnquist
Brennan
White
Marshall (o)
Special
assessment
against
convicted

380
Case Branches Holding SOP
Theory
Vote Majority Minority Notes

Blackmun
Stevens
O’Connor
Scalia
Kennedy

criminals does
not violate
origination
clause.
Gov’t didn’t
want court to
hear this case –
that’s why J
wins here.

Metropolitan
Washington
Airports
Commission v.
Citizens for
Noise
Abatement
501 U.S. 252
(1991)

E/c Congressmen on Airport Board would violate
either presentment/
bicameralism or executive function or both

Formali
st
6 – 3 Blackmun
Stevens (o)
O’Connor
Scalia
Kennedy
Souter

Rehnquist
White
Marshall

Freytag v.
Commissioner
of Internal
Revenue
501 U.S. 868
(1991)
J/c The assignment of a special trial judge by the
Chief Tax Judge does not violate the
appointments clause, because that trail judge
is an “inferior officer”

Functio
nalist
9 – 0 Rehnquist
White
Marshall
Blackmun (o)
Stevens
O’Connor
Scalia
Kennedy
Souter

Franklin v.
Gwinnett
County Public
Schools
503 U.S. 60
(1992)
J/c The award of damages to compensate for a
violation of constitutional rights is within the
right of the judiciary

9 – 0 Rehnquist
White (o)
Blackmun
Stevens
O’Connor
Scalia
Title IX
damages
Table 27, Continued. Summary of Rehnquist Court Separation of Powers Cases

381
Case Branches Holding SOP
Theory
Vote Majority Minority Notes
Kennedy
Souter
Thomas

Walter Nixon v.
US
506 U.S. 224
(Jan. 13, 1993)

C/j Review of impeachment is nonjusticiable
because the power is constitutionally
proscribed (textual commitment) to another
branch of gov’t (Senate) and there is not
manageable standard of review if the court did
decide to review it

Formali
st
9 – 0 Rehnquist (o)
White
Blackmun
Stevens
O’Connor
Scalia
Kennedy
Souter
Thomas

Baker v. Carr
Powell v.
McCormack
Plaut v.
Spendthrift
Farm, Inc.
514 U.S. 211
(April 18,
1995)
J/c Federal Statute allowing reopening of cases
where final judgment had already been
rendered violated Judicial Branches exclusive
right to “decide” cases

Formali
st
7 – 2 Rehnquist
O’Connor
Scalia
Kennedy
Souter
Thomas
Breyer

Stevens
Ginsburg
Tax case
Loving v.
United States
517 U.S. 748
(June, 3 1996)
E/c The prescription of aggravating factors in
death penalty cases in military courts by the
President was a permissible delegation of
power by the Congress.

Functio
nalist
9 – 0 Rehnquist
Stevens
O’Connor
Scalia
Kennedy (o)
Souter
Thomas
Ginsburg
Breyer

Clinton v. Jones
520 U.S. 681
(May 27, 1997)
J/e Article III empowers the Judiciary to hear
civil litigation involving the President whether
or not he is in office. The Court refused the
President’s request for temporary immunity
Formali
st
9 – 0 Rehnquist
Stevens (o)
O’Connor
Scalia

Table 27, Continued. Summary of Rehnquist Court Separation of Powers Cases

382
Case Branches Holding SOP
Theory
Vote Majority Minority Notes
from civil suits, thereby refusing an expansion
of executive privilege.

Kennedy
Souter
Thomas
Ginsburg
Breyer
City of Boerne
v. Flores
521 U.S. 507
(June 25, 1997)
J/c RFRA exceeds the §5 remedial clause of the
14
th
amendment.

6 – 3 Breyer: not an
SOP case

Souter and
O’Connor
gave SOP
little weight

Clinton v. NY
524 U.S. 417
(June 25, 1998)
C/e Line Item Veto violates presentment clause

6 - 3 Breyer: Line
item veto
does not
violate any
textual
command or
SOP

Scalia – no
standing

O’Connor
Kennedy
concurs but
says veto
violates SOP.
Miller v.
French
530 U.S. 327
(2000)
C/j An automatic stay provision in prison
Litigation Reform Act enacted by Congress
did not violate SOP (opposite of Plaut?)

In Miller v. French, The PLRA, which was at
issue in French, provided, in part, that federal
courts could not grant or approve prospective
relief in actions challenging conditions at
prison facilities unless the court determined
that the relief was "narrowly drawn, extended
5 – 4 Rehnquist
O’Connor
Scalia
Kennedy
Thomas
Stevens
Sourter
Ginsburg
Breyer
Stands for the
proposition
that Congress
has the power
to revise or
suspend
judicial
decisions
without regard
to change in
Table 27, Continued. Summary of Rehnquist Court Separation of Powers Cases

383
Case Branches Holding SOP
Theory
Vote Majority Minority Notes
no further than necessary to correct the
violation of the Federal right, and was the
least intrusive means necessary to correct the
violation of the Federal right." Importantly,
this new standard also applied to prospective
relief previously ordered by federal courts: a
court would have between thirty and ninety
days to determine whether existing
injunctions met the new standard. If the court
failed to rule within this time period, the
existing prospective relief would
automatically terminate and would remain
suspended until the court entered its ruling on
the motion. The Court dispatched in a fairly
summary manner the claim that Congress'
imposition of a time limit on judicial
decisionmaking infringed on core judicial
functions in violation of separation of powers.
The Court stated that a time line for judicial
decisionmaking does not, in itself, create a
structural separation of powers concern since
Congress may certainly impose time lines that
give ample time for decisionmaking. The
Court held that it is possible for Congress to
encroach impermissibly on the judicial
function by creating a time limit that is too
short, but that the French case did not, as a
factual matter, present such an intrusion.
Thus, in the context of a conflict between a
congressional statute and the Court's
traditional equitable powers, the French case
acknowledged a second boundary on
congressional rulemaking: statutes enacted by
Congress may not intrude on core functions of
Article III courts in such a way as to render
ineffective the courts' ability to decide cases.
underlying law,
so long as the
revision or
suspension
assists in
implementing
new legal
standards
enacted by
Congress.
Table 27, Continued. Summary of Rehnquist Court Separation of Powers Cases

384

Chapter 6

Conclusion:

The Role of the Supreme Court in Divided Government

I. Introduction
In the modern era, Americans have been trained to view the United Supreme
Court through a series of scorecards, as represented by the votes of the Justices.
Their often divisive rulings have led credence to the idea that Justices are political
actors no different than Members of Congress and the President. For the most part,
the people can be forgiven for using this shorthand method of viewing Justices of the
Supreme Court and even the Court itself. The ever increasing stakes in the judicial
nomination process fuels this notion even further (Goldman 1989). The reality is
such that within a mixed government, it is often the judiciary that casts the deciding
vote on governmental policies and agendas – and the parties are faced with higher
stakes in the judicial nominating process than they had ever faced. But are there
times when the Court does not act as a set of independent political actors, but rather
as an institution in its entirety – aware and fulfilling a unique role in our
constitutional tri-branch system?

385
In confronting the notion of how judges do make decisions, rather than how
they should make decisions, the import of the law itself has often been lost. This is
in part due to the aforementioned weaknesses of the legal model itself.
303
This study
begins to illustrate that law in fact does matter. Judges are not simply a sum of their
individual preferences, but members of a distinct and co-equal branch of
government, well aware of their institutional mission and role. Their interests, at
least when it comes to separation of powers questions, are institutional rather than
personal. At no time was this more true than in the past 30 years.

II. Structural Disputes in the Age of Divided Government
The New Historical Institutional Model clearly performed better in the later
courts than in the earlier courts. What accounts for this? To a large degree, the
answer can be found not in the Supreme Court itself, but in the other branches of
government. As we moved away from single party rule (as most clearly felt during

303
The Classical Legal model of judicial decision making ignores the obvious fact that justices have a
good deal of discretion in deciding cases – and in exercising that discretion, justices will be guided,
at least in part, by their personal conceptions of public policy and rights; and thus, their decisions
cannot be explained solely by consideration of existing precedent. For example, conservatives and
liberals have different perceptions about American society (e.g., do blacks still suffer from
discrimination?) that produce different decisions. Even when conservatives and liberals share a
certain perception (e.g., freedom of speech is a cherished right), they will likely disagree on its value
relative to competing concerns (e.g., should the speech rights of dissidents outweigh the state's
interest in maintaining order?). Even accepting the Classical premise that recitation of law is
relevant to a judge's decision, the judge cannot decide cases without considering the context and
consequence of her decision, nor without the influence of her own thoughts and experiences. (see
generally Goldman 1973). Pushaw (1996) notes that even Justice Frankfurter himself often created
doctrines (most notably justiciability) by either ignoring or distorting prior law to serve his own
policy preferences (458-63).

386
the Warren Era), the Court clearly adopted a more institutional and commensurately
unanimous posture towards separation of powers cases. This is not difficult to
understand. Simply stated, divided government leads to structural disputes. The
decline of parties and divided government are the reason that there are more
structural issues. Not only is government divided along party lines, but in the most
recent era, there is no cohesive policy (i.e. cold war) to unify the regime.
It was during the Burger years, that the norm of mixed government became
entrenched. There had never been a time like it in American History. While a
Republican controlled the Presidency 80% of the time during the Burger era, the
Republicans never controlled both houses of Congress. The closest they came was
to control the Senate during the first six years of the Reagan administration. Party
affiliation is specifically covered in this study because it acts as a unifying force.
Strategically speaking, when everyone is in the same party, everyone pulls in the
same direction. There is no political context for structural contentions. Therefore if
for example there was unanimity in the Warren Era, that could be explained by the
overwhelming democratic control of both Congress and the Executive. This
unanimity however, did not disappear in the divided years of Burger and Rehnquist –
in fact the unanimity of the Court only increased.
It is also not surprising that the sheer number of pure separation of powers
cases increased – cases which were not co-mingled with other issues. The Court has
greater opportunities to litigate these structural disputes in divided government. The

387
arbitration of these structural disputes was in fact one of the centerpieces of the
Rehnquist Court’s entire jurisprudence. And while they were one of the most
divided courts in the modern era, acting within a divided government, they spoke
with a clear, strong and often unanimous voice.

III. Significance of Findings
The public policy implications of this study are especially evident at this
particular historical moment. Separation of powers disputes have been an important
part of the Supreme Court Docket for over 30 years, yet highly under-recognized.
Many of the most contentious political debates are often framed in separation of
powers disputes. Cases like Hamdan v. Rumsfeld, show that the Roberts Court will
deal with a whole slew of cases related to the war in Iraq and the greater “war on
terror.”
The implications of the study continue on in judicial behavior. Since the
advent of Legal Realism,
304
scholars have insisted that the notion of “the law” as a
static tableau that reveals answers to the jurist is not only a myth, but a disservice to
the far more complex and nuanced task of adjudication. As discussed in great length
in the Introduction Chapter, the study of judicial behavior has been largely captured
by the orthodoxy of preference based voting, most notably, the attitudinal model.

304
These realists argued that at best legal rules and doctrines were boundaries in which judicial
decisions were made and that at worst, they were merely window dressing put on opinions in order
to mask the personal preferences of the judge(s).

388
While statistical analysis of voting records are clearly informative and significant,
they do not tell the full story in every circumstance. The area of separation of
powers represents the hallmark of the shortcomings of a pure mathematical approach
to judicial behavior.
It is not only behavioral methods of judicial behavior that this study takes on,
but purely jurisprudential ones as well. The question is what other ways could we
find to talk about separation of powers rather than in this traditional jurisprudential
way? Does the role of the Court within a political regime tell us something that mere
precedent does not? While the Court does need to orient itself within a structure of
legal precedent – that is only one of several factors that go into the Court’s decision
making in separation of powers cases. Because separation of powers deals with the
very nature of power sharing within a regime – questions of political loyalty,
institutional maintenance and a general adherence to set of legal principles are all at
play. The Supreme Court’s separation of powers jurisprudence is not reflective of
one jurisprudence, neither formalist
305
nor functionalist;
306
it is rather, a self-
reflection on the Court’s role in the constitutional system of government.

305
Formalists seek judicial legitimacy by insisting upon a strong textual basis in the Constitution for
any governmental act (Brown 1991). Their position is that the structural provisions of the
Constitution should be understood solely by their literal language and the Framers’ original intent.
The advantages of formalism, according to its advocates, are clear: formalism contributes to the
planning and stability of government and assures the rule of law. Clear lines of demarcation reduce
uncertainty in resolving interbranch disputes (Strauss 1984, 625 – 626).
306
Advocates of functionalism are more concerned with the protection of the core functions of the
branches of government rather than scripted lines of demarcation. Power sharing and the formation
of alliances between governmental branches and institutions is not immediately alarming to
functionalists because they stress the interdependence between branches of government. Expertise,

389
The findings of this study can be found at the model testing portion of
Chapters 2, 3, 4 and 5. Without repeating all the findings here, it is nevertheless,
important to note that across the board, the historical new institutional decision tree –
designed by this study, outperformed all other models of judicial behavior tested.
The fact that the Historical New Institutionalism performed well is not the only
contribution here. The decision tree developed for this study interjects a
methodological discipline in the New Institutionalism which is often lacking. By
combining notions of institutional maintenance, jurisprudential regimes and the
mission of the court – this study tells a comprehensive and nuanced story of Supreme
Court decision making. It expands and refines interpretive institutionalism into a
workable and testable model of judicial behavior.

IV. Future Studies
In doing this study, it became clear to me that future work in this area should
be done along side with attitudinalists and strategic choice scholars. As stated
before, neither group has fully addressed separation of powers jurisprudence and the

time and money are all valid reasons for shared power structures. Where formalists are concerned
about bright lines and original intent, functionalists are concerned about institutional competence
and historical practice (Glennon 1984). It is only when the core function of a branch – the very
reason for which it exists – is subordinated within another branch of government that functionalists
see a violation of separation of powers. Functionalist theorists remain primarily focused on the state
of individual rights. If an alliance between branches of government protects individual liberties,
306

then it is not a violation of separation of powers since functionalists hold that the original goal of
separation of powers doctrine was to guard against tyrannical rule and impositions upon individual
liberties (Redish and Cisar 1991).

390
conundrum that the justices voting patterns in those cases represent. It has been left
up to a New Institutionalist to replicate their methodology to the best degree
possible. This is obviously not ideal. Running the cases delineated in this study
through their computer models would yield the same results, but in language more
fully adoptable to the practitioners of those methods.
This study was intended as a survey and such is extremely broad. Future
studies could focus on individual courts and gather even more historical data in order
to develop a deeper narrative context for the Court’s decision making process.

391

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