Scholars who study American political institutions have tended to specialize in a single body such as the U.S. Congress or the federal courts. However, a growing movement among judicial scholars argues that the courts cannot be understood in isolation, but instead must be understood as a part of the larger system of government. As Neustadt (1980, 26) has reminded us, in reality the U.S. system of government features “separated institutions sharing powers.” Alexander Bickel (1962) was one of the first voices in what one could label the Governance as Dialogue movement. Bickel said that the courts must engage in a “continuing colloquy” with the more political branches of government and with other political actors, refuting the judicial supremacy approach that was popular at that time. In Constitutional Dialogues (1988) and in his other writings, Louis Fisher has argued that the courts, and especially the U.S. Supreme Court, do not have the sole responsibility of interpreting the U.S. Constitution, but that constitutional interpretation involves a very complicated dialogue among various political actors. Others, such as William N. Eskridge (1991a; 1991b), have argued that the interactions between the courts, the executive, and Congress are a highly complex multiple-player game. Recent literature on the interactions between courts and Congress has been growing steadily, and includes, among others, works by Geyh (2006); Devins and Whittington (2005); Barnes (2004); Pickerill (2004); Miller and Barnes (2004); and Lovell (2003).

In order to understand better the interactions between Congress and the federal courts, I first interviewed a variety of members of the U.S. House of Representatives almost 20 years ago regarding their attitudes toward the courts in general and toward specific court decisions. One of my main findings was that legislators with law degrees were much more protective of the courts than were the non-lawyers, regardless of party or ideology (Miller 1995). I also found that members of the House Judiciary Committee, then known as the “committee of lawyers” because all of its members held law degrees, were much more supportive of the courts than were members of the other committees I studied, again regardless of party or ideology.

Today, that situation seems to have changed dramatically. In my most recent interviews with members of Congress and others interested in court-Congress interactions, it has become quite clear that the courts have become a highly partisan and ideological issue in Congress. Some of the most severe recent attacks on the federal courts have come from the conservative Republican members of the House Judiciary Committee. Today, although most members of the Committee remain lawyers, a good number of non-lawyers serve there as well. The House Judiciary Committee has also become ideologically polarized as its members are likely to represent the more extreme wings of their respective parties. In the past several years, the House Judiciary Committee and eventually the full House of Representatives have passed a variety of court-stripping bills, for example, legislation to prevent the federal courts from hearing cases dealing with the Pledge of Allegiance or same-sex marriage issues. In September of 2006, the House Judiciary Committee even approved a bill to create an Inspector General for the federal courts. The Committee never invited the Judicial Conference, staff from the Administrative Office of the Federal Courts, nor individual federal judges to testify at the hearings held on this bill of critical importance to the judicial branch. The Committee has also over the last few years initiated several investigations that could have led to the impeachment of specific federal judges. As one Republican member of the House Judiciary Committee told me in the early fall of 2006, “We need to increase impeachments of federal judges in order to reign in those judges who insist on legislating from the bench.”

It appears that the relationship between Congress and the courts has become extremely volatile. In interviews I conducted before the 2006 midterm elections, various members of Congress and congressional staff used the following phrases to describe the current relationship between Congress and the federal courts: “venomous,” “hostile,” “tense,” “deteriorating,” “contentious,” “animosity,” and “strained.” As one liberal Representative lamented, “The relationship between the Congress and the federal courts is at an all-time low.” Another liberal Representative said, “There is less respect for the independence of the courts today.” A conservative Republican described the relationship as “adversarial.” Justice O'Connor even wrote an op-ed piece in the Wall Street Journal in September of 2006 entitled, “The Threat to Judicial Independence.” After outlining many of the current attacks on the judiciary coming from Congress and the state legislatures, Justice O'Connor concluded, “The breadth and intensity of rage currently being leveled at the judiciary may be unmatched in American history. The ubiquitous ‘activist judges’ who ‘legislate from the bench’ have become central villains on today's domestic political landscape … . Though these attacks generally emit more heat than light, using judges as punching bags presents a grave threat to the independent judiciary” (O'Connor 2006). Because the Democrats now control Congress, some of the most severe institutional attacks against the courts will clearly end, although different areas of conflict could increase the tensions between the two branches in the long term.