Few things animate the Chief Justice like encroachments–real or perceived–on the independence of the courts. His wide-ranging decision in Stern v. Marshall is a testament to his strong desire to guard Article III from Article I. Heck, he even used his annual report in 2011 to explain that Article III prohibited Congress from requiring that the Justices abide by the code of ethics. (Speaking of Article III, query whether that was an advisory opinion).
The Chief’s latest defense of Article III came in his dissent, joined by Justice Sotomayor, in Bank Markazi v. Peterson. The case arose from an effort by Congress to enable recovery from an Iranian bank, where pre-existing federal and state law would have precluded such a recovery. Congress enacted a statute that–in the words of Justice Ginsburg’s majority opinion–“‘sweeps away . . . any . . . federal or state law impediments that might otherwise exist’” to bar relief. For example, the bill eliminates sovereign immunity under the Foreign Sovereign Immunities Act of 1976, preempts New York law that would have prevented execution of judgment, and specifically allowed attachment only for this one docketed case.
The dissent argues that Congress was directing the outcome of this case, and this violated the separation of powers.
That question lies at the root of the case the Court confronts today. Article III of the Constitution commits the power to decide cases to the Judiciary alone. See Stern v. Marshall, 564 U. S. 462, 484 (2011). Yet, in this case, Congress arrogated that power to itself. … Contrary to the majority, I would hold that §8772 vio- lates the separation of powers. No less than if it had passed a law saying “respondents win,” Congress has decided this case by enacting a bespoke statute tailored to this case that resolves the parties’ specific legal disputes to guarantee respondents victory.
This is very similar to his opening in Stern v. Marshall, which charged that a Bankruptcy Court–not an Article III Court–assumed powers reserved for Article III courts:
Although the history of this litigation is complicated, its resolution ultimately turns on very basic principles. Article III, § 1, of the Constitution commands that “[t]he 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.” That Article further provides that the judges of those courts shall hold their offices during good behavior, without diminution of salary. Ibid. Those requirements of Article III were not honored here.
The Chief’s opinion begins by providing a fascinating historical account of how the colonial legislature often assumed judicial functions.
Throughout the 17th and 18th centuries, colonial legis- latures performed what are now recognized as core judicial roles. They “functioned as courts of equity of last resort, hearing original actions or providing appellate review of judicial judgments.” Ibid. They “constantly heard private petitions, which often were only the complaints of one individual or group against another, and made final judg- ments on these complaints.” G. Wood, The Creation of the American Republic 1776–1787, pp. 154–155 (1969). And they routinely intervened in cases still pending before courts, granting continuances, stays of judgments, “new trials, and other kinds of relief in an effort to do what ‘is agreeable to Right and Justice.’” Id., at 155; see Judicial Action by the Provincial Legislature of Massachusetts, 15 Harv. L. Rev. 208, 216–218 (1902) (collecting examples of such laws).
These problematic proceedings led the Framers of the Constitution to distinctly separate the legislative and judicial powers (consistent with the teachings of Montesquieu).
The Revolution-era “crescendo of legislative interference with private judgments of the courts,” however, soon prompted a “sense of a sharp necessity to separate the legislative from the judicial power.” Plaut, 514 U. S., at 221. In 1778, an influential critique of a proposed (and ultimately rejected) Massachusetts constitution warned that “[i]f the legislative and judicial powers are united, the maker of the law will also interpret it; and the law may then speak a language, dictated by the whims, the caprice, or the prejudice of the judge.” The Essex Result, in The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780, p. 337 (O. Handlin & M. Handlin eds. 1966). In Virginia, Thomas Jefferson complained that the assembly had, “in many instances, decided rights which should have been left to judiciary controversy.” Jefferson, Notes on the State of Virginia 120 (Peden ed. 1982). …
The States’ experiences ultimately shaped the Federal Constitution, figuring prominently in the Framers’ deci- sion to devise a system for securing liberty through the division of power … Experience had confirmed Montesquieu’s theory. The Framers saw that if the “power of judging . . . were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary.” Montesquieu 157. They accordingly resolved to take the unprecedented step of establishing a “truly distinct” judiciary. The Federalist No. 78, at 466 (A. Hamilton). To help ensure the “com- plete independence of the courts of justice,” ibid., they provided life tenure for judges and protection against diminution of their compensation.
The majority opinion references the Bill of Attainder Clause–as well as the class of one from Village of Willowbrook v. Olech (which I wrote about here)–but that clause no longer has any teeth after Nixon v. GSA.
The Bank’s argument is further flawed, for it rests on the assumption that legislation must be generally applic- able, that “there is something wrong with particularized legislative action.” Plaut, 514 U. S., at 239, n. 9. We have found that assumption suspect:
“While legislatures usually act through laws of gen- eral applicability, that is by no means their only legit- imate mode of action. Private bills in Congress are still common, and were even more so in the days be- fore establishment of the Claims Court. Even laws that impose a duty or liability upon a single individ- ual or firm are not on that account invalid—or else we would not have the extensive jurisprudence that we do concerning the Bill of Attainder Clause, including cases which say that [the Clause] requires not merely ‘singling out’ but also punishment, see, e.g., United States v. Lovett, 328 U. S. 303, 315–318 (1946), [or] a case [holding] that Congress may legislate ‘a legiti- mate class of one,’ Nixon v. Administrator of General Services, 433 U. S. 425, 472 (1977).” Ibid.27
27Laws narrow in scope, including “class of one” legislation, may violate the Equal Protection Clause if arbitrary or inadequately justi- fied. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (internal quotation marks omitted); New Orleans v. Dukes, 427 U. S. 297, 305–306 (1976) (per curiam).
Roberts responds with a boom: all of these safeguards would be meaningless if Congress could simply direct the courts how to resolve a case:
But such safeguards against indirect interference would have been meaningless if Congress could simply exercise the judicial power di- rectly. The central pillar of judicial independence was Article III itself, which vested “[t]he judicial Power of the United States” in “one supreme Court” and such “inferior Courts” as might be established. The judicial power was to be the Judiciary’s alone.
The Chief describes the law in question here as unprecedented–citing PCAOB–which denies it the regular sort of presumption of constitutionality.
There has never been anything like §8772 before. Nei- ther the majority nor respondents have identified another statute that changed the law for a pending case in an outcome-determinative way and explicitly limited its effect to particular judicial proceedings. That fact alone is “[p]erhaps the most telling indication of the severe consti- tutional problem” with the law. Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 505 (2010) (internal quotation marks omitted). Congress’s “prolonged reticence would be amazing if such interference were not understood to be constitutionally proscribed.” Plaut, 514 U. S., at 230.
With a citation to his mancrush, John Marshall, the current Chief explains that the line between the judicial and legislative functions is blurred, but that does not absolve the Court from enforcing it.
I readily concede, without embarrassment, that it can sometimes be difficult to draw the line between legislative and judicial power. That should come as no surprise; Chief Justice Marshall’s admonition “that ‘it is a constitu tion we are expounding’ is especially relevant when the Court is required to give legal sanctions to an underlying principle of the Constitution—that of separation of pow- ers.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 596–597 (1952) (Frankfurter, J., concurring) (quoting McCulloch v. Maryland, 4 Wheat. 316, 407 (1819)). But however difficult it may be to discern the line between the Legislative and Judicial Branches, the entire constitu- tional enterprise depends on there being such a line. The Court’s failure to enforce that boundary in a case as clear as this reduces Article III to a mere “parchment barrier[ ] against the encroaching spirit” of legislative power. The Federalist No. 48, at 308 (J. Madison).
Roberts closes with a citation of Justice Scalia’s passionate dissent in Morrison v. Olson (I still rank this as one of Scalia’s most important opinion) and a reference to Madison’s “impetuous vortex.”
At issue here is a basic principle, not a technical rule. Section 8772 decides this case no less certainly than if Congress had directed entry of judgment for respondents. As a result, the potential of the decision today “to effect important change in the equilibrium of power” is “immedi- ately evident.” Morrison v. Olson, 487 U. S. 654, 699 (1988) (Scalia, J., dissenting). Hereafter, with this Court’s seal of approval, Congress can unabashedly pick the win- ners and losers in particular pending cases. Today’s deci- sion will indeed become a “blueprint for extensive expan- sion of the legislative power” at the Judiciary’s expense, Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 277 (1991), feeding Congress’s tendency to “extend the sphere of its activity and draw[ ] all power into its impetu- ous vortex,” The Federalist No. 48, at 309 (J. Madison).
When the separation of powers are at risk, the otherwise mild-mannered John Roberts hops into a phone booth and transforms to SuperChief!
I am glad Justice Sotomayor has joined this robust defense of the separation of powers. I hope this serves as a guiding precedent when other structural protections of the Constitution are at issue.