Emory Law Journal


In this Article, we argue for a reconceptualization of how to understand legislative-judicial relations in the United States. We propose that the Legislative and Judicial Branches of the U.S. government broadly reflect gender-stereotypical relations and divisions of labor in terms of both function and design. Congress was intended to be agentic and public, securely positioned as the public, lawmaking body; it fits the prototypical definition of Arendt’s “space of appearance.” The Legislative Branch can be conceptualized as men in a patriarchal culture, given agency and invited to action. In contrast, the courts reside in a more private sphere, toiling away in relative obscurity, removed from the public eye. Much like women in a prototypical patriarchal culture, courts’ work is both reactionary and mandatory—and often undervalued. The broader implication is that Congress takes advantage of its public nature to shout loudly and do little while transferring the work—and many times the blame—to the courts. Part I provides an overview of our theoretical reconceptualization of the court-Congress relationship, while Part II provides empirical support for our theoretical claims. Part III then discusses the implications of these empirical realities for the work of each branch and the views of the public.