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In any event, there are two closely related problems with this tactic — known as “jurisdiction stripping” — as a solution to a partisan Supreme Court. The first is that the question of whether Congress has the power to enact a particular jurisdiction-stripping law will be decided by the Court itself, so the justices may simply strike down an act of Congress that seeks to limit the Court’s jurisdiction.

The other problem is that most federal statutes do not enforce themselves; they need to be applied to individual parties through court orders. Congress might be able to prevent the Supreme Court from striking down the Voting Rights Act, for example, by stripping the Court of jurisdiction to hear voting rights cases. But if voting rights plaintiffs cannot obtain a court order enforcing the Voting Rights Act, then that law ceases to function.

Indeed, historical examples suggest the Court does at times recognize the limits of its independence and exercises self-restraint for fear of acting without public support and inflicting irreparable institutional damage. Notable examples include the Supreme Court’s reluctance to consider the constitutionality of antimiscegenation laws in the wake ofBrown v. Board of Education (Klarman 2004, 321) and its continued reluctance to address widespread prayer in public schools, despite the Court’s declaration that such practices violate the constitution. This point is made generally by Lasser (1988), who argues that the historical pattern has infact been one of judicial self-restraint precisely at those times when it is aware that the political situation is too perilous. For my purposes here, though, it is important not that the Court has at any point lost public support but rather that the justices behave in anticipation of a lack of public support. The historical record suggests the Court has at times been reluctant to forge ahead with its policy agenda for fear of acting outside of the broad contours of public support.

Thus, while justices have preferences over policy outcomes, they also have a preference for institutional legitimacy. Importantly, members of the Court believe that political attacks on the judiciary evince an erosion of public support and a decline in the Court’s institutional efficacy. For this reason, political attacks on the Court serve as signals of a lack of specific support for the Court, which in turn indicates that further judicial recalcitrance will not be tolerated and that the Court will not be able to effectively set policy. The mechanisms by which this may take place are several, but, primarily, continued judicial recalcitrance could lead to the impeachment of justices, the reluctance of lower court judges to heed Supreme Court precedent, or the refusal of elected officials to implement judicial decisions. For example, for fear of electoral reprisal, an elected official would find it in her interest to disregard a judicial decision perceived as illegitimate by the public.

At the end of June, the conservative-dominated U.S. Supreme Court issued an explosive series of politically and ideologically motivated decisions designed to fundamentally reshape society. Over the course of just a few days, the Court struck down federal abortion rights, trampled on indigenous people’s rights, further eroded the separation between church and state, aided the proliferation of gun violence, and kneecapped the federal government’s ability to address climate change.

While shocking, these rulings are not surprising. In fact, they are part of a decades-long, highly successful war by the political Right to dismantle the mild regulatory and social democratic state that developed following the New Deal and World War II, and revive and reinvigorate private, elite (i.e. wealthy and white) control of society and the economy. While such efforts must be resisted, and the war is far from over, progressives can no longer avoid the fact that the contemporary model of regulating private enterprise and blunting the worst excesses of capitalism is failing — failing not because people aren’t voting the right way or because of changes in how we communicate, but failing because of its own structural limitations.

After two terms in which a radical majority on the Supreme Court has clawed back long-cherished rights, precedents, and laws, the court has now set its sights on grabbing power from voters and gutting the ability of the government to serve American families. It is hearing a series of cases that, individually, would undermine core functions and operations of the federal government and, together, would incapacitate governance. Ultimately, this would thwart the will of voters by grabbing power away from the elected branches of government and instead resting them with unelected judges with lifetime tenure. The outcome of these cases could potentially allow judges to substitute their own political and policy preferences for those of Congress; disempower career civil servants, who are experts in their fields; and hamper the president’s ability to implement their agenda. Effective governance has delivered bedrock promises—air free of smog; water free of contamination; a safe and reliable banking system; and even a 40-hour workweek. All could be at risk.

Wherever the President of the United States travels, a military aide-de-camp carrying “the football” is just a few steps away. It isn’t the kind Tom Brady throws. In the laconic jargon that national security officers use, “the football” is a briefcase that allows the President to launch a nuclear attack.

These days “the football” seems closer to being used than at any time in the last half-century. President Trump has issued thinly veiled threats of a nuclear first strike against North Korea. His emotional volatility makes those threats terrifying. Because of a deep flaw in our legal order, this is an existential fear rather than a theoretical one.

We realize that more perfect union necessarily has many more meanings, discovered and still undiscovered, for us today. The words express the hope that 50 states covering an abundant swath of planet earth’s surface can cooperate. There is of course nothing simple about the challenge of cooperation between the governments of 50 states and the federal government. But this is part of what the endless work of forming a more perfect union entails. Today, more perfect union involves whether states can cooperate with each other and with the federal government over the biggest problems of our times, including a pandemic, economic crisis, public health, social justice, climate change, gun violence, terrorism at home and abroad, immigration and a long list of other pressing issues for humanity and our life on earth.

In July, 2020, protestors and local officials in Portland, Chicago, Seattle, Washington, D.C., Albuquerque, N.M., Louisville, Ky., Kansas City, Mo. and other American cities decried the Trump Administration’s use of federal force in cities dealing with protests and violence in the wake of the police killing of George Floyd. In the disorienting summer of 2020, amid pandemic, recession, racial tension, protest, violence, and heated calls for police reform, the stressors on federalism are manifold. The Preamble’s more perfect union is a dream in the sense that Martin Luther King, Jr. had a dream. It uses poetic-sounding language to express the unavoidable interdependency between We the People and their constituted governments, state, local and federal. It is a dream based on the hard stuff of interdependency in a world where one person’s plastic ends up on another person’s shore. Or where an individual’s infection ends up infecting a community. Abraham Lincoln used the famous house divided, biblical metaphor to express what’s at stake in our dream of union: “A house divided against itself cannot stand.” For the Preamble, for Lincoln and for us today, the hard work of cooperation, of getting along with each other, of working together, of sacrificing some self-interest is a practical necessity if the republic is to stand.

At the end of June, the conservative-dominated U.S. Supreme Court issued an explosive series of politically and ideologically motivated decisions designed to fundamentally reshape society. Over the course of just a few days, the Court struck down federal abortion rights, trampled on indigenous people’s rights, further eroded the separation between church and state, aided the proliferation of gun violence, and kneecapped the federal government’s ability to address climate change.

While shocking, these rulings are not surprising. In fact, they are part of a decades-long, highly successful war by the political Right to dismantle the mild regulatory and social democratic state that developed following the New Deal and World War II, and revive and reinvigorate private, elite (i.e. wealthy and white) control of society and the economy. While such efforts must be resisted, and the war is far from over, progressives can no longer avoid the fact that the contemporary model of regulating private enterprise and blunting the worst excesses of capitalism is failing — failing not because people aren’t voting the right way or because of changes in how we communicate, but failing because of its own structural limitations.

Of the mind, etc.: Freed from doubt or uncertainty, fixed, settled. Obs.

The legal question to be resolved by the court is whether the word "should"13 in the May 18 order connotes futurity or may be deemed a ruling in praesenti.14 The answer to this query is not to be divined from rules of grammar;15 it must be governed by the age-old practice culture of legal professionals and its immemorial language usage. To determine if the omission (from the critical May 18 entry) of the turgid phrase, "and the same hereby is", (1) makes it an in futuro ruling - i.e., an expression of what the judge will or would do at a later stage - or (2) constitutes an in in praesenti resolution of a disputed law issue, the trial judge's intent must be garnered from the four corners of the entire record.16 13 "Should" not only is used as a "present indicative" synonymous with ought but also is the past tense of "shall" with various shades of meaning not always easy to analyze. See 57 C.J. Shall § 9, Judgments § 121 (1932). O. JESPERSEN, GROWTH AND STRUCTURE OF THE ENGLISH LANGUAGE (1984); St. Louis & S.F.R. Co. v. Brown, 45 Okl. 143, 144 P. 1075, 1080-81 (1914). For a more detailed explanation, see the Partridge quotation infra note 15. Certain contexts mandate a construction of the term "should" as more than merely indicating preference or desirability. Brown, supra at 1080-81 (jury instructions stating that jurors "should" reduce the amount of damages in proportion to the amount of contributory negligence of the plaintiff was held to imply an obligation and to be more than advisory); Carrigan v. California Horse Racing Board, 60 Wash. App. 79, 802 P.2d 813 (1990) (one of the Rules of Appellate Procedure requiring that a party "should devote a section of the brief to the request for the fee or expenses" was interpreted to mean that a party is under an obligation to include the requested segment); State v. Rack, 318 S.W.2d 211, 215 (Mo. 1958) ("should" would mean the same as "shall" or "must" when used in an instruction to the jury which tells the triers they "should disregard false testimony"). 14 In praesenti means literally "at the present time." BLACK'S LAW DICTIONARY 792 (6th Ed. 1990). In legal parlance the phrase denotes that which in law is presently or immediately effective, as opposed to something that will or would become effective in the future [in futurol]. See Van Wyck v. Knevals, 106 U.S. 360, 365, 1 S.Ct. 336, 337, 27 L.Ed. 201 (1882).

"Should" is "used . . . to express duty, obligation, propriety, or expediency." Webster's Third New International Dictionary 2104 (2002). Courts [**15] interpreting the word in various contexts have drawn conflicting conclusions, although the weight of authority appears to favor interpreting "should" in an imperative, obligatory sense. HN7A number of courts, confronted with the question of whether using the word "should" in jury instructions conforms with the Fifth and Sixth Amendment protections governing the reasonable doubt standard, have upheld instructions using the word. In the courts of other states in which a defendant has argued that the word "should" in the reasonable doubt instruction does not sufficiently inform the jury that it is bound to find the defendant not guilty if insufficient proof is submitted at trial, the courts have squarely rejected the argument. They reasoned that the word "conveys a sense of duty and obligation and could not be misunderstood by a jury." See State v. McCloud, 257 Kan. 1, 891 P.2d 324, 335 (Kan. 1995); see also Tyson v. State, 217 Ga. App. 428, 457 S.E.2d 690, 691-92 (Ga. Ct. App. 1995) (finding argument that "should" is directional but not instructional to be without merit); Commonwealth v. Hammond, 350 Pa. Super. 477, 504 A.2d 940, 941-42 (Pa. Super. Ct. 1986). Notably, courts interpreting the word "should" in other types of jury instructions [**16] have also found that the word conveys to the jury a sense of duty or obligation and not discretion. In Little v. State, 261 Ark. 859, 554 S.W.2d 312, 324 (Ark. 1977), the Arkansas Supreme Court interpreted the word "should" in an instruction on circumstantial evidence as synonymous with the word "must" and rejected the defendant's argument that the jury may have been misled by the court's use of the word in the instruction. Similarly, the Missouri Supreme Court rejected a defendant's argument that the court erred by not using the word "should" in an instruction on witness credibility which used the word "must" because the two words have the same meaning. State v. Rack, 318 S.W.2d 211, 215 (Mo. 1958). [*318] In applying a child support statute, the Arizona Court of Appeals concluded that a legislature's or commission's use of the word "should" is meant to convey duty or obligation. McNutt v. McNutt, 203 Ariz. 28, 49 P.3d 300, 306 (Ariz. Ct. App. 2002) (finding a statute stating that child support expenditures "should" be allocated for the purpose of parents' federal tax exemption to be mandatory).

Resolve TRANSITIVE VERB:1. To make a firm decision about. 2. To cause (a person) to reach a decision. See synonyms at decide. 3. To decide or express by formal vote.

Sarah Herman Peck; 2018; Congress’s Power over Courts: Jurisdiction Stripping and the Rule of Klein; Congressional Research Service;

Article III of the Constitution establishes the judicial branch of the federal government.1 Notably, it empowers federal courts to hear “cases” and “controversies.” 2 Additionally, the Constitution creates a federal judiciary with significant independence, providing federal judges with life tenure and prohibiting diminutions of judges’ salaries.3 In presiding over cases and controversies, federal courts possess significant power over the citizenry’s life, liberty, and property, 4 and that power can be exercised in a manner that could be in tension with the interests of the legislative branch. One way Congress potentially can temper the judiciary’s influence is by regulating federal court jurisdiction. The Exceptions Clause in Article III grants Congress the power to make “exceptions” and “regulations” to the Supreme Court’s appellate jurisdiction.5 And more generally, with the power to create lower federal courts, Congress possesses the power to eliminate the jurisdiction of the lower courts.6 Congress sometimes exercises this power by “stripping” federal courts of jurisdiction to hear a class of cases. Indeed, Congress has even eliminated a court’s jurisdiction to review a particular case in the midst of litigation.7 More generally, Congress may influence judicial outcomes by amending the substantive law underlying particular litigation of interest to the legislature.8

The most obvious and understandable explanation for the proposition of Court-curbing legislation is that members of Congress are more likely to propose such legislation as their own ideology diverges from that of the Court.1 Members of Congress will inherently attempt to pursue their own ideological interest and oppose those interests which run counter to them (Meernik and Ignagni, 1995). Therefore, members of Congress are more likely to attempt to curb the Supreme Court when the Court is ideologically opposed to them. This does not mean that a member of Congress will necessarily react to individual Court decisions that involve opposing ideological rhetoric – although they very well may, but that is a different research question; rather, it means that members of Congress are more likely to contest and curb a Court that they perceive as ideologically opposed in general (Henschen, 1982). In other words, no action on the part of the Court is necessary to bring about Court-curbing proposals; if the Court as a whole simply possesses ideological opinions that are divergent from a particular member of Congress it is more likely that that member of Congress will propose Court-curbing legislation.

This relationship is the result of fairly typical and common political behavior. When two institutions – or even individuals – are ideologically opposed and routinely in competition over policy preferences, it is likely that they will seek to curb the other and bolster their own policysetting capacity. This behavior is a straightforward attempt at achieving a greater likelihood of obtaining policy preferences in the future, by way of weakening a rival in the present.

First, members of the judiciary consider the actions of other political actors when the judiciary makes decisions. Members of the judiciary act strategically based on beliefs and observations of actions by the legislature and/or public (Vanberg 2001, Vanberg 2005, Whittington 2003). When the judiciary believes it has low levels of approval from the public and the judiciary sees the legislature attempting to court curbing, the judiciary is less willing to challenge the actions of the legislature.1 In such a circumstance, the judiciary fears future retaliation that has a greater likelihood of being enacted.

As the example at the beginning of this chapter illustrates, Congress can and does attempt to reverse or limit the impact of judicial decisions (i.e., RFRA) by enacting legislation when legislators disagree with the ideological content of the ruling (i.e., Oregon v. Smith [1990]) (e.g., Eskridge 1991; Uribe, Spriggs, and Hansford 2014). Since Congress overturns decisions it dislikes, but first attempts to achieve its policy goals and manipulate judicial behavior with Court-curbing legislation (Blackstone 2013; Engel 2011), it is reasonable to assume that the Court views these bills as a credible signal of legislative overrides. Numerous studies have documented that the justices engage in strategic decision-making to prevent Congress from reversing its rulings and erasing the Court’s impact on public policy (e.g., Bergara, Richman, and Spiller 2003; Eskridge 1991; Spiller and Gely 1992). Since the Court actively avoids overrides when congressional preferences are vastly different from those of the justices, it is plausible that the justices respond to Court-curbing legislation in a similar fashion.

This leads to the second research question relating to when Court-curbing bills cause changes in judicial behavior. Court-curbing legislation as a credible threat to the Court’s influence on public policy relies on Congress’s ability to override decisions if the bills do not elicit judicial deference to legislative preferences. Thus, it is probable that the Court does not respond to Court-curbing bills during periods of legislative gridlock when it is unlikely Congress will be able to enact legislation to overturn a given decision. In order to understand the conditions under which the relationship between Congress and the Court is dictated by the public policy preferences of each during periods of Court-curbing bill sponsorship, the next section will 6 discuss the assumptions underlying the behavior of each branch and the relevant theoretical frameworks that can be used to explain Court-Congress relations

We also argue that our assessment of competing accounts should consider lawmakers’ calculations about the likelihood their messaging behavior leads to change on the part of the Court. In other words, individual lawmakers may Court curb in order to send messages to the Court itself, attempting to affect its behavior. Our reasoning here is rooted in the calculations that members of the majority make about the value of sending a message to the Court. We argue that members of the majority have a stronger incentive to Court curb when their party is distant from the Court because their proposals, as opposed to ones from the minority party, are more likely to reach the floor (Anderson, Box-Steffensmeier, and Sinclair-Chapman 2003; Cox and McCubbins 2002).6 Since the Court is particularly concerned about attention-generating proposals, which spark widespread backlash against the institution (Clark 2011, 77), majority-initiated proposals represent more credible threats to the Court's support due to majority-party agenda control. In other words, members of the majority party have an additional incentive to ramp up their threats against a distant Court because the judiciary sees threats from the majority as more credible, making it more likely that it will adjust its behavior as a result. We posit that majority-party members are comparatively more likely to Court curb than minority members when their party is distant from the Court due to the fact that the institution perceives these majority threats as more credible.

This debate as to why the Court would respond to Court-curbing bills, in addition to findings that judicial deference to congressional preferences does occur following periods of Court-curbing (Nagel 1965; Rosenberg 1992), has become the foundation for Clark’s (2009, 2011) conditional self-restraint model. His theory relies on many of the same assumptions underlying separation of powers research. In particular, Clark posits that the Court’s institutional legitimacy is diminished when it hands down unpopular decisions that lead to congressional criticism or policy-based responses. While most changes evidenced in judicial decision making are considered responses to the fact that Congress has and could reverse rulings or enact Courtcurbing legislation, Clark’s model contends that challenging the Court’s institutional legitimacy is enough to elicit a change in judicial behavior.

For Clark (2009, 2011), the sponsorship of Court-curbing legislation under certain conditions serves as a credible signal of waning institutional legitimacy and public support that the Court responds to by making decisions that reflect current congressional preferences. To make this theoretical connection, the model makes assumptions about the preferences of both branches. Beginning with Congress, members use Court-curbing legislation as a position-taking endeavor in their constant pursuit for re-election because the bills allow them to publicize their disagreement with a decision and show that they are actively representing constituent concerns. It is in the best interest of members of Congress to represent their constituents’ interests sincerely, so in most instances, the justices view the introduction of Court-curbing legislation as a reliable signal of the Court’s diminished institutional legitimacy and public support.

It has already been strongly and scientifically demonstrated that proposed Court-curbing legislation is an effective means by which Members of Congress may communicate with the Court and that the Court is very likely to hear fewer cases and to strike fewer laws when presented with an increase in Court-curbing legislation (Clark, 2009). However, it is the case that Congress seems to have very specific goals in mind while curbing the Court and that more mundane acts of the Court do not draw Congressional attention and Court-curbing legislation (Henschen, 1982). As a result of this knowledge, the Supreme Court often seeks to avoid hearing cases that are likely to draw unwanted and dangerous attention from Congress and cases that would force the Court into opposing public opinion (Goelzhauser, 2010; Hansford and Damore, 2000; Marshall, 1986; Franklin and Kosaki, 1989; Hoekstra, 2000). Carefully choosing the Court’s battles seems to largely – but not exclusively – result from the efforts of the Chief Justice and the Senior Associate Justice, who have some sway over what cases are heard and decided on, but most importantly how cases are decided and to what extent the Court’s majority opinion alters policy (Johnson, Spriggs, and Wahlbeck, 2005; Dorff and Brenner, 1992; O’Brien, 1985). In many cases, the Supreme Court bows to the preferences of Congress and decides cases in a manner that will not draw the ire of Congress or its members (Segal, 1997). Nevertheless, when the Court does choose to exert its influence over policy, it wields enormous, albeit highly concentrated and specific, power over a narrow policy issue (Flemming, Bohte, and Wood, 1997). Although Congress is typically considered the more “powerful” institution, the Supreme Court is not without influence or authority and is a very real threat to Congressional policy preferences.

It is well established that Congress holds great influence over the Supreme Court and that the Supreme Court acts strategically to prevent Congressional Court-curbing (Clark, 2009). What remains a mystery, however, is leads Members of Congress to propose Court-curbing legislation, as the academic literature is largely silent on this matter. This paper seeks to answer this question and proposes that Court-curbing legislation is a result of ideological divergences between members of Congress and the Court in addition to a Congressional response to an inherent and intentional institutional rivalry.

Existing evidence suggests that Court curbing is an effective tool for Congress: the judiciary is much more willing to eschew judicial review when faced with formal threats from the legislature. However, until this point, no evidence speaks to the micro-level mechanics that underpin judicial responsiveness. Here, we detail two alternative models that can account for responsiveness. In a homogeneous responsiveness account, implicit in much of the literature, Court curbing leads to a uniform change in behavior, with each justice aware of threats from Congress and willing to moderate her behavior accordingly. In another, Court curbing leads to a conditional change that depends on the weight various justices place on other decision-making inputs.

The heterogeneous responsiveness insight leads us to posit that Court curbing is particularly impactful in shaping the behavior of the chief justice, whose administrative duties require regular interactions with Congress, and the swing justice, who as an ideological moderate is attentive to a variety of external signals, including threats from the legislature and opposition from the public. Our evidence shows support for our theory. We find that Court curbing influences these two justices, in particular, making both the chief justice and the swing justice much less likely than their colleagues to vote to strike down federal legislation. We also note that given the swing justice's willingness to weigh a variety of factors in decision-making, the effect of Court curbing is made more powerful for this justice when underscored by concerns about the Court's popular support. These effects are substantively meaningful; in some instances, they lead to nearly a two-thirds reduction in the likelihood of voting to strike legislation. Therefore, while Congress may be able to guarantee a deferential Court by shaping the behavior of the two justices that are most inclined to react to its threats, our findings also suggest a novel limit on inter-institutional responsiveness.

Participant judges were asked whether they perceived a threat to judicial independence and, based on their response, to elaborate on the presence or absence of this threat. This broad question was chosen so that judges were able to articulate any type of threats they sensed, including concerns about various potential actions taken by the political branches, the public, or some other source. Recognizing that even a single piece of legislation may contain a mix of threats, judges could, in response to this question, single out specific provisions or elements of threats that were more concerning to them. Overwhelmingly, judges reported that they believed there is a threat to judicial independence, a response consistent with our view that the judiciary is generally aware of its place in institutional context, its relationships with other political actors, and potential encroachments on its authority. Yet, the judges differed in their articulation of what actually constituted a threat. Several judges suggested that they are less likely to feel threatened by provisions that targeted judicial policies and more so by those aimed at different features of the judiciary itself. The majority of the participants contributed to a robust picture of the different observable threats they believed to require the most attention on the part of the judiciary. Almost every judge mentioned that chipping away at institutional authority by Congress posed the greatest harm to the judicial branch; a few judges also forwarded alternative perspectives on the source of threats. We explore the responses provided by participant judges on a thematic basis.

Is There a Threat to Judicial Independence?