The Limits of Judicial Power

The Supreme Court in American Politics

William Lasser

• Publisher: The University of North Carolina Press
• Year: 2017
• ISBN:
  9781469632469
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

Lasser examines in detail four periods during which the Court was widely charged with overstepping its constitutional power: the late 1850s, with the Dred Scott case and its aftermath; the Reconstruction era; the New Deal era; and the years of the Warren and Burger Courts after 1954. His thorough analysis of the most controversial decisions convincingly demonstrates that the Court has much more power to withstand political reprisal than is commonly assumed. Originally published in 1988. A UNC Press Enduring Edition -- UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.

I. Introduction

[The Supreme] Court of the modern era, like those of the past, has rendered a service of no small significance. From 1789 to the Civil War, the Court labored to establish a reasoned argument for the cause of union. From the war to 1937 it performed a similar function on behalf of laissez faire. Toward the end of each of these periods, the judges overstepped the practical boundaries of judicial power and endangered the place they had earned in the American system. Since 1937, the Court has striven to evolve a civil rights doctrine that will realize the promise of the American libertarian tradition, yet accord with the imperatives of political reality…. It would be a pity if the judges, having done so much, should now once more forget the limits that their own history so compellingly prescribes.

—Robert G. McCloskey, The American Supreme Court (1960)

THE MODERN COURT, McCloskey concluded in his landmark study, was in danger once again of overstepping the limits of its power and of endangering its place in the American system of government. In several cases, and especially in the desegregation cases of the mid-1950s, the Court had pushed forward at a rate that, to McCloskey, seemed “perilous and perhaps self-defeating.” Surely, he warned, no purpose is served “when the judges seek the hottest political cauldrons of the moment and dive into the middle of them”; the clear lesson of the Court’s history was that its “greatest successes have been achieved when it has operated near the margins rather than in the center of political controversy, when it has nudged and tugged the nation, instead of trying to rule it.” If the modern Court refused to learn this lesson, McCloskey concluded, it risked repeating its greatest historical blunders.¹

Instead of withdrawing to the sidelines of American politics in the years after 1960, however, the modern Supreme Court further intensified its political activity. Its decisions over the past twenty-five years have had a more pronounced impact on American politics and society than those of any other period in the nation’s history. The Court moved beyond school desegregation to school integration and busing; banned organized prayer in the public schools; virtually transformed the nation’s criminal justice system by imposing strict procedural requirements on state and local law enforcement officials; redrew the national political map by requiring legislative apportionment on the one person, one vote standard; and struck down state laws prohibiting abortion, at least in the first two trimesters of a woman’s pregnancy. Even this list, impressive as it is, abbreviates the historical record; virtually every area of constitutional jurisprudence, from free speech to women’s rights to capital punishment, has been transformed. Moreover, the Court has greatly expanded the scope of the remedies available to the federal judiciary, permitting the federal judiciary to engage in the direct supervision and management of federal prisons, local school districts, and hospitals.

The activism of the modern Court has generated considerable controversy and criticism. Critics of the Court have attacked it, sometimes viciously, for every one of these decisions. They have accused the justices of usurping the legitimate powers of Congress and the states, of meddling in the local affairs of the citizenry, of hostility to religion, and of contempt for democracy. Court decisions on abortion and school prayer have spawned virtual industries of opposition: abortion clinics have been bombed, threats have been made on the justices’ lives, and in many places the school prayer decisions have been ignored altogether. Debate over new judicial appointments has turned angry and divisive, and hardly a single session of Congress passes without some attempt to reverse Court decisions by constitutional amendment or by statute.

McCloskey was not the only constitutional scholar to misjudge the prospects of the modern Court. Throughout its history the Court has consistently been treated as weak and vulnerable, forced to tread a thin line between using its power so boldly as to risk popular reprisal and acting so meekly as to abdicate its constitutional authority and responsibility. Even before the Constitution was ratified, the theme was set by Alexander Hamilton: the Court, he wrote, “is beyond comparison the weakest of the three departments of power; … it can never attack with success either of the other two, and … all possible care is requisite to enable it to defend itself against their attacks.”²

This theme of weakness and vulnerability pervades the literature on the Supreme Court. “Judicial review runs so fundamentally counter to democratic theory,” wrote Alexander Bickel in summing up the opinions of leading constitutional scholars, “that in a society which in all other respects rests on that theory, judicial review cannot ultimately be effective.”³ According to the traditional viewpoint, Congress has available a wide range of powers to check the Court and will not hesitate to use them. As the political scientist Walter Murphy has written, “Congress can increase the number of Justices, enlarge or restrict the Court’s appellate jurisdiction, impeach and remove its members, or propose constitutional amendments either to reverse specific decisions or drastically alter the judicial role in American government…. A President to whom the nation looks for leadership can throw the moral authority of his office against that of the Court, just as can a senator, congressman, or governor.”⁴

Even if there is no direct assault on the Court or the justices, it is argued, the very exercise of judicial power weakens the Court in the long run. “Since public antagonism, resistance, and retribution appear to have a spill-over effect,” writes the legal scholar Jesse Choper, “if one or another of the Court’s rulings sparks a markedly hostile reaction, then the likelihood that subsequent judgments will be rejected is greatly increased.” The Court, Choper concludes, “in some principled fashion, must ration its power of invalidation.”⁵

As the modern Court has expanded the reach of its powers, several of the justices have likewise taken up the theme that the Court’s power is limited and must be exercised cautiously. Justice Powell, for example, wrote in 1974 that “the power recognized in Marbury v. Madison … is a potent one…. Were we to utilize this power as indiscriminately as is now being urged, we may witness efforts by the representative branches drastically to curb its use.”⁶ Justice Powell’s concerns echo views that have been expressed on the Court for a long time; the second Justice Harlan, for example, repeatedly expressed disagreement with the Warren Court’s predilection for expanding the reach of judicial power. “The powers of the federal judiciary will be adequate for the great burdens placed upon them only if they are employed prudently,” he wrote in 1968. Felix Frankfurter, dissenting in the Warren Court’s key reapportionment case, warned his brethren that “the Court’s authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court’s complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.”⁷ The remarks of Harlan and Frankfurter, in turn, reflect the views of Oliver Wendell Holmes, Learned Hand, and many others.⁸

Despite all of these warnings, the modern Court did not tone down its activism or shrink from the political arena. And yet, despite all of the controversy and criticism of the past thirty years, the Court is as powerful and effective today as at any time in its history. Its unprecedented activism, far from endangering its place in American politics, seems to have given the Court even more power. Its critics have been unable to reverse outright even one of the Court’s controversial decisions, and the Court shows no signs of retreating from its activist approach to constitutional decision making. The justices, having ignored all of the advice proffered to the Court, have been rewarded instead of punished.

In fact, the Court has endured serious criticism and controversy throughout its history and, at least in the long run, has consistently survived and prospered. Despite the frequent characterization of the Court as weak and vulnerable, it has rarely faced a serious threat to its legitimacy or institutional integrity. The Court may be constantly at the “quiet of a storm-centre,”⁹ as Oliver Wendell Holmes described it, but in only a handful of cases has the storm surrounding the Court grown into a tempest of fierce and apparently destructive power and led to a full-scale crisis for the Court. Studying these rare moments of crisis provides a unique perspective from which to analyze the limits of the Supreme Court’s power and authority.

The first of these crisis periods occurred early in the Court’s history, with the election of Thomas Jefferson to the presidency and the subsequent battle between the Jeffersonian Republicans and the Court, led by the Federalist John Marshall. During this period Marshall struggled to establish the Court as a powerful and effective institution of government while protecting the Court from the Republicans’ onslaught. During the first decade of the nineteenth century, Marshall claimed for the Court the power to review acts of Congress and declare them unconstitutional, while parrying broad-based attacks on the Court, including threats of impeachment against himself and the other justices. The Court’s ability to survive this first great crisis, and indeed to come out of that crisis with its authority firmly established, provided a foundation upon which it was able to build for the future.¹⁰

The few really great crises after the Marshall era come easily to mind: the infamous Dred Scott decision of 1857; the Reconstruction cases, which so alarmed the radical Republicans that they stripped the Court of its power to rule on the constitutionality of the Reconstruction Acts; and the New Deal crisis, which culminated in the ill-fated Court-packing plan of 1937. Because this study aims to understand the development of the Supreme Court’s modern role, it begins not with the Jeffersonian era but with the Dred Scott case; while the Jeffersonian period is interesting in its own right and has been studied in depth, it would cast only limited light on the larger questions of this study.

The historical episodes examined below—Dred Scott, Reconstruction, and the New Deal—are the prime exhibits for those historians and political scientists who stress the Court’s weakness and vulnerability. The futility and ultimate rejection of Dred Scott, Congress’s domination of the Court during Reconstruction, and the events leading up to Franklin Roosevelt’s Court-packing plan are seen as the outstanding examples of the Court’s weakness, and are frequently brought forth as warnings to the modern Court. The mere fact that the Court was weak on these extraordinary occasions, however, does not close the matter. That the Court’s views on slavery or on economic regulation were rejected hardly attests to the Court’s weakness as an institution; the issues involved in these crises were not just any issues, but the most fundamentally divisive issues in the nation’s history.

In analyzing both the historical Court and the modern Court, this study addresses two sets of questions. First, what do the crises of the past tell us about the Court’s strengths and weaknesses as an institution? Do they reveal the Court as essentially weak and vulnerable? By what mechanism did the Court weather its most severe storms, and how can its survival be explained? Second, what does such a study of the Court’s history tell us about the modern era? Did Court-watchers like McCloskey and others misjudge the danger to the modern Court because they misunderstood history, or because the modern era is fundamentally different from the past—or might it be both?

Beginning with Dred Scott, each of the Court’s great episodes of crisis after the Marshall era is studied in detail: Dred Scott, the Reconstruction era, and the New Deal. In limiting the list to these three, many controversial and important cases have been deliberately excluded: the Slaughterhouse Cases, the Civil Rights Cases of 1883, the key economic cases of the 1890s, the segregation decision of 1896, Lochner v. New York, the Child Labor Case, the Steel Seizure Case, and countless others. However important and controversial these cases were (and many were not nearly as controversial as common knowledge suggests) none seriously approach Dred Scott, Reconstruction, and the New Deal in intensity, persistence, or fundamental importance. And it is by focusing on the Court in its most severe episodes of crisis that the limits of judicial power can be most clearly illuminated.

With these historical crises as a baseline of analysis, it becomes possible to understand the modern era in historical perspective. As in these past crises, the modern Court has been subjected to an enormous amount of criticism and has been the target of numerous attempts to modify its decisions or curb its power. Unlike the crises of the past, however, the controversy of the modern era shows no signs of abating, and the Court has shown few signs of reversing course. Only after a detailed analysis of both the historical crisis periods and the modern era will it be possible to determine why McCloskey and so many others underestimated the power of the modern Court. Was the historical Court’s power greater than these analysts believed, or have the limits of judicial power expanded beyond their previous boundaries?

The answer, as the following pages will reveal, is yes to both questions. Historical analyses of the Court have traditionally underestimated the Supreme Court’s power and overestimated the Court’s vulnerability to damage from the political branches. Even when its decisions have been most controversial, the Supreme Court has enjoyed tremendous support as an institution. Even when they have vilified the Court and tried most strenuously to reverse particular decisions, the Court’s opponents have rarely if ever sought to eliminate the Court as a potent force in American politics, at least in the long run. Rarely if ever have the Court’s critics engaged in a fundamental attack on judicial power or questioned seriously the legitimacy of judicial review. Even in the midst of the Dred Scott, Reconstruction, and New Deal crises the Court’s opponents lacked the will, the desire, and the ability to crush the Court. At best, they wanted and were able only to overturn, or convince the Court to overturn, one or a small number of particularly controversial decisions. Once they did so, the Court quickly reassumed its accustomed position, paradoxically strengthened by the very weakness of the arguments against it even at its weakest moments.

Moreover, the crises of the past turn out to be far more complex and entangled than is frequently assumed. In none of these cases did the Court’s crisis occur in isolation. Instead, these Court crises were each part of a far larger crisis for the nation at large, and each can be understood only against this larger background. In each case, the Court had many enemies, but it also had allies. Sometimes it was simply caught in a crossfire between Congress and the president.

Thus the Court was far less weak and less vulnerable during these crises than McCloskey, Bickel, and many others assumed. And if these periods indeed represent the Court at its weakest and most vulnerable, it follows that the historical Court has had far more power and far more institutional capital than it has commonly been given credit for. Thus the Court entered the modern era not with a history of weakness, but of strength; not with a history of failure, but of success; not with reason to fear the results of judicial activism, but with reason to assume the vitality of its own power. Simply put, the record of the modern era is not an aberration, but a continuation of a long-established historical pattern.

There has been no shortage of discussion and commentary on what the legitimate and defensible limits of the Court’s power ought to be. There has been far less analysis of what the Court’s power has actually been. What has happened in the past need not be followed in the present, but the careful analysis of the past must inform any normative debate on the proper limits of judicial power. Unfortunately, far too much of the debate on judicial activism and restraint has progressed from the assumption that the Court is weak and vulnerable. Advocates of judicial restraint point to Dred Scott and the New Deal cases as arguments for caution. Advocates of judicial activism too often view the Court’s weakness as a sort of insurance policy against an irresponsible Court. Others, perhaps trying to find a middle ground, long for a time when the Court’s power seemed more limited and lament the apparent decline of political constraints.

In seeking out t...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Chapter I Introduction
• Chapter II The Dred Scott Case
• Chapter III Reconstruction and the Court
• Chapter IV The Supreme Court and the New Deal
• Chapter V The Modern Supreme Court: Crisis as Usual?
• Chapter VI Conclusion
• Notes
• Bibliography
• Index