Separation of Powers and the Judiciary Act of 1925

Allen C. Sumrall*

Contemporary separation of powers doctrine endorses a vision of the Constitution that sees power neatly distributed across the three branches of government. That vision sees Congress exercising legislative power, the judiciary exercising judicial power, and the presidency and the Executive Branch exercising executive power. Modern separation of powers doctrine understands the Constitution as neatly distributing different powers across branches that operate interdependently but distinctly from one another. But separation of powers doctrine would have us believe that the constitutional system works differently than it does in reality.

Using the Judiciary Act of 1925 as a case study, this Essay explores the separation of powers as a process, not a doctrine. The originating process of the Judiciary Act of 1925 saw a much more complex and nuanced picture of the separation of powers than modern doctrine reflects. The Act was drafted by the Justices, not by a member of Congress. Congress devoted little time to debate, as the Justices’ testimony to Congress helped to convince legislators that the Act’s reforms were necessary and too complex for the legislators to understand. At the same time, the Justices acknowledged Congress’s authority to regulate its docket, and Congress did not abdicate its authority to regulate the Supreme Court. If the Judiciary Act of 1925’s approval process was a permissible instance of interbranch dynamics and the separation of powers in action, then modern doctrine endorses a different idea than reality reveals. It also demonstrates a deep irony in American constitutional politics: the Supreme Court that today tells a story about the separation of powers doctrine is a product of a separation of powers process that looks very different than the story it tells.

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© 2025 Allen C. Sumrall. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Postdoctoral Scholar, University of California, Irvine, School of Law. The author thanks Josh Chafetz, Ed Hartnett, Jeff Tulis, Mark Graber, Dan Epps, Danielle Rivera, Todd Phillips, and George Wang for their helpful comments. The author also is grateful to the editors at the Notre Dame Law Review for their assistance, and for their generous invitation to Notre Dame Law Review’s twenty-fifth annual Federal Courts Symposium on “100 Years of the Judiciary Act of 1925,” for which this Essay was written.