Meet the researchers: Justice across continents

Interview with Professor Mark Miller
After spending 1999 as a Judicial Fellow for Chief Justice William Rehnquist at the U.S. Supreme Court, government professor Mark Miller knows how the U.S. courts work first-hand. But he is also fascinated by the relationship between the Supreme Court and the U.S. Congress as well as how our court system, overall, compares to others around the world. In a recent interview, Miller discusses his current research in:

In your comparative court systems project, how did you decide which court systems to examine?

The project grew out of my teaching. I was teaching a comparative court systems class in Clark's Luxembourg program which involved the U.S., United Kingdom, France, Germany, Luxembourg and the European Court of Justice. Luxembourg City is home to the European Court of Justice- the court system for the 15 member states of the European Union. I later received a study grant from the Canadian government to study the Canadian courts. While in Canada, I began thinking about the comparison between the evolving Canadian courts and the evolving European Union Courts of Justice, which was an area no one had really looked at carefully. I saw some parallels, and I wanted to pursue them.

What kind of power do these courts have over their members?

The European Court of Justice’s decisions have the force of law in all 15 member states. But remember, each of those members have very different legal traditions and backgrounds. So just what kind of power the Court will have remains to be seen. It may be that the Court of Justice will be very narrow, or it may evolve into something as active as the U.S. Supreme Court. In bringing together the nations in Europe, the European Court has been a driving force. And in Canada, their Supreme Court has really been driving their confederation, bringing Canada into nationhood rather than just a collection of separate provinces. The U.S. Supreme Court did the same thing early in our history, bringing the 13 colonies together. The question remains, will the European Court of Justice be a unifying factor like the U.S. and Canadian Supreme Courts or will it different?

What do you know so far?

The amazing thing is that no country has refused to adopt the rulings of the European Court. Even the British and Danish, who are the most skeptical members. That's even more remarkable since the European Court's decisions are actually implemented by the member countries' court systems. So that requires an enormous amount of cooperation between members and this new court.

How did you gather the information for this research?

I interviewed several Canadian judges. I also talked to representatives of the European Court of Justice about the role of their court. And I’ve spent time at both courts watching how they work and observing their facilities.

Tell me about the research you are doing on the interaction between the U.S. Supreme Court and Congress?

The working title of my current article is "The View of Capitol Hill from the Marble Palace: How the Supreme Court Misunderstands Congress as an Institution." I became interested in this because there have been a series of 5-4 Supreme Court decisions over the last few years that have greatly restricted the powers of Congress and greatly increased those of the Court at the expense of Congress. This article will also look at the use of legislative history. One of the jobs of the Supreme Court is to interpret statutes of Congress, but just how they should do that is a question. Some of the Justices feel that a statute's wording is all that the Court should ever examine. Other Justices feel that it's important to examine the legislative history -- such as congressional debate, hearings -- to clarify what Congress intended.

What’s your argument?

My argument is that without having the courts carefully analyze the legislative history, the Court will miss the intent of Congress and will really straight-jacket Congress's ability to pass legislation at all. I'm arguing that the members of the Supreme Court who are most hesitant about the use of legislative history can create all sorts of problems across the street on Capitol Hill.

How do you show that?

I'm doing a normative analysis of those 5-4 cases, looking at why I think the Supreme Court majority was wrong, and supporting the four members of the dissent. For example, in one of the cases from last year that I'm examining, the Supreme Court struck down the federal Violence Against Women Act, saying it was a traditional state function to protect domestic violence. So to sue in federal court violates the rights of states. Now, Congress has volumes and volumes of testimony and research explaining how violence against women has an economic effect. The majority on the Supreme Court basically ignored all of that evidence and said, instead, that Congress had no power to legislate in this area. That decision -- along with some other decisions -- changes about 50 years of traditional law. I think the majority is wrong on this issue. Congress clearly had the power to legislate in this area, in my opinion, and the article will explain why I think that.

How can Clark undergraduate students help you with your research?

I often bring students into my research projects. I wouldn't expect student to be able to analyze case law yet, but they can clearly translate their undergraduate research skills into legal research. Students can check primary sources and do a review of law review literature in a given area. In fact, I've had several Clark pre-law students cut their teeth doing research with me and then go on to law school.

How does a student actually get to work with you?

If a student has a specific interest, I'm always happy for them to take the ball and run with it. Sometimes a student will approach me directly and ask to work with me. And sometimes I can identify students who have the research skills to work with me. There's usually a lot of Clark students to choose from!