It's not as if we haven't been here before.

Throughout American history, and long before the name TerriSchiavo entered the public's consciousness, Congress and thecourts have regularly collided over judicial decisions that infuriatedsome members of the public and their elected representatives.During those combative times, Congress has threatened to retaliateby impeaching offending judges, packing (or unpacking) waywardcourts or stripping the judiciary of jurisdiction to hear caseson controversial subjects.

Rarely has Congress acted on its threats, though, and the courtsoften have emerged from these confrontations stronger than before.

That tradition might be changing, says Charles Geyh, a professorof law and Charles Whistler faculty fellow at the Indiana UniversitySchool of Law-Bloomington. In his forthcoming book, WhenCourts and Congress Collide: The Struggle forControl of America's Judicial System (University of MichiganPress, 2006), Geyh warns that the two-centuries-old balance betweenthe courts and Congress is being jeopardized by an intensifyingpartisan divide over the future of America's judicial system.

“Today's threats may not be as idle as they've been in the past,” Geyhsays.

In researching the history between Congress and the federaljudiciary, Geyh discovered that the independence judges havetraditionally enjoyed is attributable less to Constitutionallaw than to a custom of Congressional respect for the courts'authority to decide cases without legislative interference. Itis a custom grounded in the belief that judges will usually decidecases on the basis of the facts and the law, not their own politicalpreferences, he says.

But there's an emerging view that today's judges routinely disregardthe law and decide cases in light of their politics, Geyh says.Along with calls for greater congressional control over the judiciary,it threatens to disrupt a delicate balance between judicial independenceand accountability that Congress and the courts have sought topreserve since the founding of the nation, he says.

“We've always had these periods of time where members of Congresshave gone after the courts. In the early years, Congress sometimesslapped the courts upside the head, but by the twentieth century,respect for the judiciary's autonomy had progressed to the pointwhere threats to curb the courts rarely materialized,” Geyh says.Legislators persisted in threatening the courts on a cyclicalbasis, but those threats served largely as a rhetorical deviceto punctuate how angry they were.

Still, Geyh says there is plenty of reason for cooler headsto be concerned. Republicans threatening to eliminate the filibuster.Democrats vowing to shut down Congress if they did. “The politicizationof the (judicial) appointments process has accelerated in a waythat threatens to disable the entire process,” Geyh says.

Whether the traditional balance between Congress and the courtsis preserved or abandoned remains to be seen. Much depends onevents transpiring in the near future. Many legal and politicalanalysts predicted a major blowout this month over PresidentBush's first nominee to the Supreme Court. But Geyh says thepresident's choice of John Roberts over a more lightning-rodcandidate has likely averted a debilitating battle … at leastfor now.

“My sense is that there have been a half dozen of these cyclesin history and each has come and gone. If I were betting money,I'd probably bet this one will come and go, too,” he says. “Butthere are some very troubling trends and if they continue unabated,they may result in the erosion of the role of independent judges.”