Court Curbing

Court Curbing The American system of government embodies the principle of separation of powers under which three distinct branches are entrusted with overlapping authority, each having what James Madison, writing in The Federalist, no. 51, called “a will of its own. …” As possibly the weakest branch of government, with no popular electoral base to support it, the judicial branch may be even more vulnerable to political challenge by the other two. Moreover, with its power to declare state and federal laws unconstitutional, the Supreme Court may often find itself in conflict with the other two branches or with the states (see Judicial Review).

There are a variety of mechanisms by which the Court may be curbed. Most obviously, amendments to the Constitution can be proposed by Congress and ratified by the states to reverse or modify unpopular decisions (see Reversals of Court Decisions by Amendment). Very early in the nation's history, the Eleventh Amendment (ratified 1795) overturned the Court's decision in Chisholm v. Georgia (1793) and restricted the jurisdiction of the Court over cases brought against a state by citizens of other states or nations, a provision that the Supreme Court has since interpreted to stand for the more expansive principle of state sovereign immunity. The Fourteenth Amendment (ratified 1868) overturned the unpopular Dred Scott decision (1857) and extended citizenship rights to all native‐born and naturalized Americans, while the Sixteenth Amendment (ratified 1913) reversed the Court's decision in Pollock v. Farmers' Loan & Trust Co. (1895) and permitted imposition of a national income tax. The Twenty‐sixth Amendment (ratified 1971) subsequently modified the Court's decision in Oregon v. Mitchell (1970) by extending the right to vote to eighteen‐year‐olds in state as well as in federal elections.

To date, such amendments have—with the possible exception of the Eleventh—been aimed at specific decisions rather than at the Court's authority as a whole, but constitutional amendments have been proposed from time to time since the 1820s that would have weakened judicial power by requiring that justices be elected to fixed terms, mandating an extraordinary judicial vote to void legislation, or permitting Congress to override judicial decisions. The chief obstacle to curbing the Court by constitutional amendment is its extreme difficulty, as the ratification of a mere twenty‐seven amendments in more than two hundred years of American constitutional history shows.

Congress is not, of course, bound to follow the amendment route in cases involving statutory, as opposed to constitutional, interpretations. Accordingly, there have been numerous instances in American history where Congress reversed such judicial interpretations, clarifying its earlier language or indicating that the Court had taken too narrow or too broad a view of stated legislative purposes. Even in cases of constitutional interpretation, the Court is sometimes more engaged in an ongoing dialogue with the political branches than in asserting judicial power to interpret the Constitution with finality.

The Supreme Court is not immune from political and institutional restraints. Although the Court is at the top of a judicial hierarchy, lower federal courts and state courts sometimes resist its doctrinal innovations, as do law enforcement officers and others responsible for implementing judicial decisions (see Impact of Court Decisions). Many of the Court's justices have been convinced that their role in a democratic republican system requires deference to legislative decisions and the exercise of judicial restraint. Justices are, moreover, appointed by the president with the advice and consent of the Senate (see Selection of Justices). Presidents are aware that their choices will influence the future ideological direction of the Court, though many have found that it is difficult to predict the stances that an appointee, once on the Court, will take.

In addition to these well‐established restraints on the judicial branch, there is greater controversy over other mechanisms by which the electoral branches might curb the Court. The Constitution nowhere establishes the number of Supreme Court justices, for example; Congress could increase the number of justices and thus give the appointing president increased power to influence its decisions. The last change in the number of Supreme Court justices, however, was in 1869. Moreover, the twentieth century's most publicized attempt to “pack the Court”—Franklin Roosevelt's proposal in 1937 to add one justice, up to a total of fifteen, for every justice who stayed on the Court over the age of 70—received such an overwhelming rebuff from Congress as an assault on judicial independence that it is unlikely to be proposed again (see Court‐Packing Plan).

Among the most controversial proposals to curb the Court have been plans aimed at legislatively restricting the jurisdiction of the Supreme Court and/or other federal courts over certain topics or classes of cases in which its decisions have proved to be unpopular (see Judicial Power and Jurisdiction). This possibility is suggested by the language in Article III, section 1, of the United States Constitution vesting the judicial power “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” and by Article III, section 2, granting appellate jurisdiction to the Court “both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” In a Reconstruction case, Ex parte McCardle (1869), the Court sanctioned such a congressional action, refusing to decide a case over which Congress had withdrawn jurisdiction. Controversy continues to surround the original purpose of Article III, however, and the scope of McCardle is uncertain, especially in light of the Supreme Court's decision in United States v. Klein (1872). In that case, the Court rejected a congressional attempt to restrict the Court's jurisdiction over cases in which claimants relied on a presidential pardon. The Court ruled that this was an improper attempt to prescribe rules of evidence inevitably working in the government's favor as well as being an unconstitutional intrusion on the president's pardoning power.

Some scholars are concerned that restriction on jurisdiction could undermine the supremacy of the Constitution proclaimed in Article VI, produce discordant constitutional interpretations, and deny due process to litigants. At the very least, there are almost surely limits that would prohibit Congress from altering jurisdiction so as to treat claimants before the Court in a discriminatory fashion.

There was rarely a time when the Supreme Court had no enemies, and proposals for curbing the Court can be found throughout American history. In a survey of court‐curbing movements focusing on congressional bills, Stuart Nagel identified seven such periods from 1802 through 1959. He considered four as relatively successful. Although no comparable study has been made since Nagel's in 1965, the late 1970s and early 1980s constitute another period of court‐curbing attempts. Court‐curbing proposals are noticeably more frequent when the Court is perceived as having made controversial or unpopular decisions. Such proposals may be tied to times of political crisis and partisan conflicts and often have a strong regional base.

The earliest court‐curbing period occurred in 1802–1804 and reflected conflict between the newly elected Democratic Republican president, Thomas Jefferson, and leading Federalists. Republicans reacted to Federalist attempts to stack the judicial branch with new officeholders before relinquishing power in 1801. Disputes over this attempt produced the Court's celebrated announcement of the power of judicial review in Marbury v. Madison (1803). Jeffersonian Republicans repealed the Judiciary Act of 1801, which had expanded the number and jurisdiction of federal courts. Attacks on the Court waned, however, after the unsuccessful attempt in the Senate to convict Justice Samuel Chase, who had been impeached in 1804 because of his intemperate Federalist partisanship on the bench. The failure of the Chase impeachment discouraged resort to impeachment as a court‐curbing device.

The next round of court curbing occurred between 1823 and 1831. The Marshall Court had antagonized state and local interests by asserting its jurisdiction over a number of cases involving appeals from the states—for example, Martin v. Hunter's Lessee (1816) and Cohens v. Virginia (1821)—and by invalidating state economic regulatory statutes, most notably in McCulloch v. Maryland (1819), which struck down Maryland's tax on a branch of the Bank of the United States. Attempts to modify or repeal section 25 of the Judiciary Act of 1789 failed in 1831, however, and the Court retreated from the aggressive nationalism that had characterized its decisions through 1824.

After the Court's notorious Dred Scott decision of 1857, which helped ignite the Civil War, through 1869, the Court encountered hostility to some of its decisions as war was followed by attempts at congressional Reconstruction. The Fourteenth Amendment reversed Dred Scott and prepared the way for a new federal‐state relationship. In Ex parte McCardle, the Court declined to jeopardize its reputation by a struggle with Congress over jurisdiction.

The periods 1893–1897 and 1922–1924 were characterized by the federal judiciary's assertion of power over economic matters and its dogma of freedom of contract. In the earlier period, Populists condemned the Court's decision in Pollock v. Farmers' Loan & Trust Co. (1895), prohibiting Congress from levying an unapportioned income tax, and its decision limiting application of the Sherman Antitrust Act in United States v. E. C. Knight Co. (1895). These and other decisions supportive of laissez‐faire economics, epitomized by Lochner v. New York (1905) and its progeny, provoked the second round of attacks on the Court, led by Progressive spokesmen, from 1922 to 1924. Both periods led to President Roosevelt's 1937 court‐packing plan, which attempted to curb judicial invalidation of New Deal programs. Although Roosevelt's effort failed, the Court has since given minimal scrutiny to legislation involving economic matters and has focused instead on civil rights and civil liberties issues.

These latter issues can also cause controversy, as demonstrated by the period 1955–1959. Reactions to Brown v. Board of Education (1954), which overturned Plessy v. Ferguson (1896) and mandated an end to the doctrine of separate but equal in race relations, and to decisions curtailing the scope of state and national internal security laws led to calls for the impeachment of Chief Justice Earl Warren (see Communism and Cold War; Subversion). Legislation such as the “Jenner Bill” (named after Senator William Jenner of Indiana), which would have restricted federal courts' jurisdiction in areas such as internal security, where the Court's decisions had been controversial, ultimately came to naught.

In the 1970s and 1980s, there were numerous attempts to restrict judicial decisions relating to prayer (Engel v. Vitale, 1962) and Bible reading (Abington School District v. Schempp, 1963) in public schools (see Religion), school busing as a means to achieve racial balance (Swann v. Charlotte‐Mecklenburg Board of Education, 1971), and abortion (Roe v. Wade, 1973). Statutory attempts to restrict judicial jurisdiction have so far failed, as have proposed constitutional amendments. Bills attempting to exercise congressional enforcement powers under the Fourteenth Amendment by declaring that busing violates equal protection or that human life begins at the moment of conception have also failed.

The Supreme Court has shown its resilience throughout American history, sometimes modifying or reversing its course, but never abandoning its authority as a coordinate branch of government. Justices are appointed and confirmed by the political branches, and the Court depends for enforcement of its decisions on them as well, so the Court cannot long remain out of line with the mainstream of public life. The tenure during good behavior and salary protections for the justices were designed to give the Court independence from most partisan controversies. Threats to curb the Court serve as continuing reminders both of the Court's vital place in the American governmental scheme and of the limits of its authority.

See also Constitutional Amending Process; Constitutional Amendments; Political Process; Separation of Powers.

Bibliography

Louis Fisher , Constitutional Dialogues (1988).
Edward Keynes with Randall K. Miller , The Court vs. Congress (1989).
Walter F. Murphy , Congress and the Court (1962).
Stuart S. Nagel , Court‐Curbing Periods in American History, Vanderbilt Law Review 18 (1965): 925–944.

John R. Vile