Paradise Lost, Paradigm Found: Redefining the Judiciary’s Imperiled Role in Congress
Charles Gardner Geyh
Long perceived as acting in splendid isolation,the legislative and judicial branches have become increasingly intertwined. The judiciary is becoming more involved in the legislative province of statutory reform, and Congress has inserted itself more frequently into the judicial territory of procedural rulemaking. In this Article, Professor Geyh observes that a new, interactive paradigm has replaced the perceived model of separation and delegation between the branches. As the judiciary and Congress have grown more enmeshed, the judiciary’s reputation has suffered, both from a Watergate-vintage mistrust of all things governmental and from a perception that judicial activism is born of self-interest. Rather than seeking to untie the Gordian knot created by increasing judicial-legislative interaction, Professor Geyh advocates taking this interplay to a higher, more systematized level. He proposes the creation of an Interbranch Commission on Law Reform and the Judiciary. Composed primarily of representatives from the judicial, legislative, and executive branches, the Interbranch Commission would review statutory proposals affecting the judiciary as well as procedural rule reforms. Professor Geyh acknowledges that there are no “one-trick pony” solutions to the problems caused by interbranch interaction, but he offers the Interbranch Commission as a novel way of dealing with the new paradigm.