Congress and the Supreme Court

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The delegates to the constitutional convention of 1787 confronted two fundamental problems in their quest to correct the political defects of the articles of confederation. First, they needed to bolster the powers of government at the national level so as to transform the "league of friendship" created by the Articles into a government with all the coercive powers requisite to government. Second, the Framers sought to create energetic but limited powers that would enable the new national government to govern, but in ways safe to the rights of the people. As james madison put it in the federalist #51, the task was to "enable the government to control the governed, but in the next place oblige it to control itself."

Their successful solution to this political problem was to separate the powers of government. Because the primary source of trouble in a popular form of government would be the legislative branch, the object was to bolster the coordinate executive and judicial branches, to offer "some more adequate defence.… for the more feeble, against the more powerful members of the government." The arrangement of checked and balanced institutions would at once avoid "a tyrannical concentration of all the powers of government in the same hands" while rendering the administration of the national government more efficient.

When the Framers examined the existing federal system under the Articles to determine precisely what it was that rendered it "altogether unfit for the administration of the affairs of the Union," the want of an independent judiciary "crown[ed] the defects of the confederation." As alexander hamilton put it in The Federalist #22, "Laws are a dead letter without courts to expound and define their true meaning and operation." Thus the improved science of politics offered by the friends of the Constitution prominently included provision for "the institution of courts composed of judges, holding their offices during good behavior."

But to some Anti-Federalist critics of the Federalist-backed Constitution, the judiciary was too independent and too powerful. To the New York anti-federalist "Brutus," the proposed judiciary possessed such independence as to allow the courts to "mould the government into almost any shape they please." The "Federal Farmer" was equally critical: his fellow citizens were "more in danger of sowing the seeds of arbitrary government in this department than in any other." With such unanticipated criticism, the Federalists were forced to defend the judicial power more elaborately than had been done in the early pages of The Federalist.

So compelling were the Anti-Federalist arguments that Hamilton saw fit to explain and defend the proposed judicial power in no fewer than six separate essays (#78–83) in The Federalist. His task was to show how an independent judiciary was not only not a threat to safe popular government but was absolutely essential to it. In making his now famous argument in The Federalist #78 that the judiciary would be that branch of the new government "least dangerous to the political rights of the Constitution," Hamilton made the case that the courts were "designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority." By exercising neither force nor will but merely judgment, the courts would prove to be the "bulwarks of a limited constitution." Such an institution, Hamilton argued, politically independent yet constitutionally rooted, was essential to resist the overwhelming power of the majority of the community. Only with such a constitutional defense could the rights of individuals and of minor parties be protected against majority tyranny; only an independent judiciary could allow the powers of the national government to be sufficiently enhanced, while simultaneously checking the unhealthy impulses of majority rule that had characterized politics at the state level under the Articles.

To counter the Anti-Federalist complaint that the courts would be imperiously independent, Hamilton reminded them that the courts would not be simply freewheeling sources of arbitrary judgments and decrees. The Constitution, in giving Congress the power to regulate the appellate jurisdiction of the Supreme Court "with such exceptions, and under such regulations, as the Congress shall make," hedged against too expansive a conception of judicial power. "To avoid an arbitrary discretion in the courts," Hamilton noted, "it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them." Thus the stage was set for a history of political confrontation between the Congress and the Court.

The tension between Congress and the Court has been a constant part of American politics at least since chisholm v. georgia (1793) led to the eleventh amendment. Each generation has seen dramatic Supreme Court rulings that have prompted political cries to curb the courts. john marshall's now celebrated opinions in marbury v. madison (1803) and mcculloch v. maryland (1819), for example, caused him a good bit of political grief when he wrote them; the decision in dred scott v. sandford (1857) soon came to be viewed as a judicially "self-inflicted wound" that weakened the Court and exacerbated the conflict that descended into civil war; and more recently, protests against the rulings in brown v. board of education (1954) and roe v. wade (1973) have caused not only political demands for retaliation against the Court but social conflict and even violence as well. But through it all the Court has weathered the hostility with its independence intact.

Only once were the critics successful in persuading Congress to act against the Court, and the Court validated that move. In ex parte mccardle (1869) the Court confirmed Congress's power to withdraw a portion of the Court's appellate jurisdiction. Fearing that the Court would use William McCardle's petition for a writ of habeas corpus under the habeas corpus act of 1867 as a vehicle for invalidating the Reconstruction Acts in toto, the Congress repealed that portion of the act under which McCardle had brought his action—and after the Court had heard arguments in the case. The Court upheld the constitutionality of Congress's action in repealing this particular part of the Court's jurisdiction. The extent of Congress's power to withdraw the Court's appellate jurisdiction remains a matter of constitutional controversy.

The constitutional relationship between Congress and the Court is one thing; their political relationship is another matter. Although there are often loud cries for reaction against the Court, the critics usually lack sufficient force to achieve political retribution. The reason is most often explained as a matter of political prudence. The courts by their decisions frequently irritate a portion of the community—but usually only a portion. For most decisions will satisfy certain public constituencies that are as vociferous as the critics. Even the most errant exercises of judicial decision making are rarely sufficient to undermine the public respect for the idea of an independent judiciary.

The reason for this is simple enough: an independent judiciary makes good political sense. To make the judiciary too much dependent upon "popularity" as that popularity may be reflected in Congress would be to lower the constitutional barriers to congressional power, barriers generally agreeable to most people most of the time. The arguments of Hamilton in The Federalist still carry considerable weight.

Thus in the constitutional design of separating the powers of government through the device of "partial agency"—mingling the powers enough to give each branch some control over the others—is to be found the inevitable gulf between legitimate power and prudent restraint. For Congress to be persuaded to restrict judicial power, the case must first be made that such restrictions are both necessary and proper.

Despite the dangers of legislative power, it was still considered by the Framers to be the cardinal principle of popular sovereignty. Basic to this principle is the belief that it is legitimate for the people through the instrumentality of law to adjust, check, or enhance certain institutions of the government. This belief embraces the power of the legislature to exert some control over the structure and administration of the executive and judicial branches.

The qualified power of the legislature to tamper with the judiciary is not so grave a danger to the balance of the Constitution as some see it. For even when a judicial decision runs counter to particular—and perhaps pervasive—political interests, the institutional arrangements of the Constitution are such as to slow down the popular outrage and give the people time for "more cool and sedate reflection." And given the distance between the people and legislation afforded by such devices as representation (with its multiplicity of interests), bicameralism, and the executive veto power, an immediate legislative backlash to judicial behavior is unlikely. Experience demonstrates that any backlash at all is likely to be "weak and ineffectual." But if the negative response is not merely transient and is widely and deeply felt, then the Constitution wisely provides well-defined mechanisms for a deliberate political reaction to what the people hold to be intolerable judicial excesses.

But ultimately the history of court-curbing efforts in America, from the failed impeachment of Justice samuel chase to the Court-packing plan of franklin d. roosevelt, teaches one basic lesson: the American political system generally operates to the advantage of the judiciary. Presidential court-packing is ineffective as a means of exerting political influence, and impeachment is too difficult to use as an everyday check against unpopular decisions. Not since John Marshall saw fit pseudonymously to defend his opinion in McCulloch v. Maryland (1819) in the public press has any Justice or judge felt obliged to respond to public outrage over a decision.

Political responses to perceived excesses of judicial power tend to take one of two forms: either a policy response against a particular decision or an institutional response against the structure and powers of the courts. In either event, the response may be either partisan or principled. Usually a policy response will take the form of a proposed constitutional amendment or statute designed to overrule a decision. An institutional response will generally seek to make jurisdictional exceptions, to create special courts with specific jurisdiction, or to make adjustments regarding the personnel, administration, or procedures of the judicial branch. Whatever the response, court-curbing is difficult. Although a majority of one of the houses of Congress may object to particular cases of "judicial impertinence," as one congressman viewed Justice david davis's controversial opinion in ex parte milligan (1866), a variety of objections will issue in different views of what should be done.

On the whole, there has consistently been a consensus that tampering with judicial independence is a serious matter and that rash reprisals against the Court as an institution may upset the constitutional balance. Underlying the occasional outbursts of angry public sentiment against the court is that "moral force" of the community of which alexis de tocqueville wrote. On the whole, the American people continue to view the judiciary as the "boast of the Constitution."

For any political attempt to adjust or limit the judicial power to be successful it is necessary that it be—and be perceived to be—a principled rather than a merely partisan response. Only then will the issue of judicial activism be met on a ground high enough to transcend the more common—and generally fruitless—debates over judicial liberalism and conservatism. The deepest issue is not whether a particular decision or even a particular court is too liberal for some and too conservative for others; the point is whether the courts are exercising their powers capably and legitimately. Keeping the courts constitutionally legitimate and institutionally capable benefits both the liberal and the conservative elements in American politics.

The system the Framers devised is so structured that the branch the Framers thought "least dangerous" is not so malleable in the hands of Congress as to be powerless. Yet the threat of congressional restriction of the Court remains, a threat that probably helps to keep an otherwise largely unfettered institution within constitutional bounds.

Gary L. McDowell


Berger, Raoul 1969 Congress versus the Supreme Court. Cambridge, Mass.: Harvard University Press.

Breckenridge, A.C. 1971 Congress Against the Court. Lincoln: University of Nebraska Press.

Morgan, Donald L. 1967 Congress and the Constitution. Cambridge, Mass.: Harvard University Press.

Murphy, Walter F. 1962 Congress and the Courts. Chicago: University of Chicago Press.

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Congress and the Supreme Court

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