Scholarly Articles and Other Contributions
 

Document Type

Article

Publication Date

2003

Abstract

In more than one key opinion, Justice Byron White cited Justice Robert H. Jackson's concept of the "art of governing" as the cornerstone of his own approach to separation-of-powers problems.' In Youngstown Sheet & Tube Co. v. Sawyer, Justice Jackson had written:

The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government.

This concept of governance as "art," in fact, aptly describes White's vision of the proper functioning of each branch of the federal government, including the judicial. The concept usefully describes White's vision of the proper functioning of the political branches, as well as that of the Court in resolving separation-of-powers disputes. The art in question is, in both respects, a quest for the mean in a process of balancing, and not an observance of formal definitions.

An adequate understanding of White's separation-of-powers jurisprudence requires that one understand its terms, on their face, as well as the nature of his objection to his opponents' formalism.4 These points are considered in Parts I and II of this essay. But it calls, as well, for acknowledging a tacit reference in White's position to the judiciary's accountability for the rule of law. A discussion of this more implicit dimension of White's reasoning is found in Part III.

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