Separation of Powers and the Rise of the Judiciary

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The first hundred years of colonial American government gave rise to a dominant legislative branch. Legislatures evolved to the point where they routinely interfered in judicial matters. For example, colonial legislatures would issue edicts requiring the courts to re-hear cases that had been adjudicated, overturn creditor’s judgments, stay executions and reverse settled decisions.   Historian Gordon Wood described the assemblies of the 18th century as, “a kind of medieval court making private judgments as well as public law.”

Legislative dominance troubled the founding fathers, particularly James Madison who described the legislature in The Federalist 48 as a department which is, “everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.” Virginia’s Constitution demarcated the separation of powers, but in reality the legislature often usurped judicial power.  Thomas Jefferson complained that the Virginia legislature had, “in many instances, decided rights which should have been left to judiciary controversy…”

The founding fathers’ concerns translated into many of the Constitution’s enumerations and limitations on power. The doctrine of separation of powers is summed up in the Federalist 47, “the preservation of liberty requires that the three great departments of power should be separate and distinct.”

Not long after the Constitution was ratified, Congress encroached on the judiciary’s power. In 1791, Congress passed a law providing that disabled Revolutionary War veterans apply to Federal Circuit Courts for pension determinations. However, this law granted the Secretary of War the power to deny pensions that had been approved by the courts. The US Supreme Court unanimously declined to review the pension applications, reasoning that for the courts to render judgments subject to review by Congress violated the separation of powers. This marked the first time the high court struck down an act of Congress. The Hayburn decision, the underlying case, is considered by the modern Supreme Court to reflect a proper understanding of the role of the Judiciary under the Constitution.

Over time, the judiciary has evolved to become very powerful. One indication of the immense power of the modern judiciary is the tenure of judges.  Only one Federal judge has been impeached in the last twenty years.

Although Virginia’s Judicial Inquiry and Review Commission receives over 1,400 complaints about judges annually, The Virginia Supreme Court has only removed two judges since 1971.  While the Virginia Constitution grants the legislature the power to impeach a judge, it has never been done. During the 2009 legislative session, Del. Carrico introduced a bill providing that if a sitting district court judge is convicted of a felony or class 1 misdemeanor during his term of office and all rights of appeal have been exhausted, his term will expire 30 days after the commencement of the next General Assembly regular session. Del. Carrico’s bill was defeated.

Last year, Virginia Supreme Court chief justice Leroy Hassell, Sr. issued two court orders to the Chairman of the Courts of Justice Committees commanding them to restrict access to the Judicial Performance Evaluations. Members of the legislature questioned whether the chief justice had any authority over them. A power struggle ensued between the two branches of government, causing some judicial candidacies to remain in abeyance for weeks. Representatives of the Virginia Supreme Court and the General Assembly got together and ultimately agreed to the chief justice’ demand to keep judicial performance evaluations confidential.

Del. Janis and Sen. Cuccinelli introduced companion bills limiting the Chief Justice of the Virginia Supreme Court to two consecutive terms. Their attempt to check the power of Virginia’s chief jurist also failed. Another noteworthy piece of legislation this session was Del. Loupassi’s bill HB1804 requiring the General Assembly to approve retired judges for temporary recall by the Chief Justice of the Virginia Supreme Court. HB1804 was also defeated.

Two bills were introduced that would transfer authority over the judicial performance evaluation program to the legislature and require the Survey, Evaluation and Research Lab to provide the evaluations directly to the legislature. Both failed. Unable to gain control over the Judicial Performance Evaluation program through legislative means, the Virginia General Assembly essentially killed the program by cutting its funding. Resolution of the dispute between the judicial and legislative branches over authority of the Judicial Performance Evaluation program has important public policy considerations and the conflict surrounding it underscores the need for separation of powers. Not only is  involving two branches of government in the Judicial Performance Evaluation program impractical, the great political philosopher Montesquieu warned that when the judicial and legislative powers are joined, the life and liberty of citizens is exposed to arbitrary control because judges become the legislators.

The recent struggles between Virginia’s judicial and legislative branches, the many failed legislative attempts to check the judiciary’s power, and the seeming impossibility of removing judges is indicative of how powerful Virginia’s judiciary has become over the past two hundred years. It’s a far cry from the days of old when Virginia’s legislature interfered in judicial matters and was the dominant branch of government. The Virginia General Assembly’s recent moves indicate the legislature now recognizes how power has shifted toward the judicial branch and how critical it is to the proper functioning of government to have a balance of powers not only in theory but in practice.

Gordon S. Wood, Creaton of the American Republic 154-55 (1969)

Thomas Jefferson, Notes on the State of Virginia (1784)

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4 Responses to Separation of Powers and the Rise of the Judiciary

  1. Marsha Maines says:

    The rise of the Judiciary and the fall of the Commonwealth has long been coming. Virginia operates as a Federal Branch of the US Federal Government – she is no longer sovereign. Every bar card member of the General Assembly who maintains their Bar membership while serving the Legislative branch is serving “two” masters in violation of the Constitution of Virginia. Check Mate, sleeping children of Virginia.

  2. Charlie Bell says:

    Let’s hope that the legislature will continue to work to get that balance back. The danger is that there can be a shift to the other side if to much legislation is passed. We need go back as a country to the initial ideas and documents to solidify our current positions. The constitution can stand the test of time if we adhere to the precepts that were drawn up. We have gotten away from those precepts in a slow and at times unperceptible path. Then we convince ourselves that the new way is the best way without comparing what we have done to what was our predetermined course. I work for There we have all of the original Constitutional Convention Records and Pension Files. I love to look through those and admire the great and “inspired” minds that sat together and created one of the most powerful governments of the people that the world has ever known.

    The History Man

  3. Joe Russell says:

    Good snapshot…..

    “Although Virginia’s Judicial Inquiry and Review Commission receives over 1,400 complaints about judges annually, The Virginia Supreme Court has only removed two judges since 1971.”

    It would be very useful to take a look at these 1, 400 complaints and see if there are any pattern….but of couse the Chief Justice keeps a very tight lid on those.

    What if there was a website that offered citizens an opportunity to also submit their complaint for public viewing? Somehow we have to get the goods on these robed rascals……and make it available to the public.

  4. Re: No Certainty in Judicial selection – Removal 4 Felony Certain

    Dear Friends of our Constitutions,

    There is no certainty of excellence in ANY particular process for selecting judges.

    Certainty, can and lawfully must be available for removing judges by grand jury indictment for felonies such as VA18.2-481(5) statutory treason of “resisting the execution of the laws under the color of its authority” OR Va18.2-111 statutory embezzlement of the true duly authorized law by adulteration or wrongful use.

    Judges are deemed by VA statute as having already taken notice of our laws – the judges’ position of responsibility and status denies them the “I did not see the stop sign.” defense.

    It is the statutory duty of the grand jury to investigate ALL conditions of felony in the community.

    It is the constitutional duty of our Governor to use force-of-arms if needed to see that the laws are obeyed if a locality’s judicial system refuses to take on judges who perpetrate felony.

    We have work to do. See Petition for Redress of Grievances at

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