Attacks on Judges:  Why They Fail

By Barry Friedman, currently Visiting Professor at NYU School of Law, Secretary of the American Judicature Society, and Co-Chair of the Task Force for the Center for Judicial Independence.

Why are judges attacked at some times, but not others, as interfering with the popular will? The answer is not as obvious as one might think. Judges have been attacked often throughout history, but the complaint has not always been (as it is now) that judges are interfering with the proper workings of democracy.

To answer this question, I have spent the last three years studying the history of popular attacks on the judiciary. Rather than confining myself to academic tomes, my research materials have been newspapers, magazines, books written for the general public, congressional speeches and debates, cartoons, correspondence and speeches of political figures, and letters to the editor by ordinary citizens--in short, anything that would tell me as best as I could discern the state of public opinion about judges.

Attacks on the courts have occurred for some 200 years. My subject matter has been the Jeffersonian attacks on the Federalist judiciary, many similar attacks during the period of Jacksonian democracy, the vilification of the Dred Scott decision, challenges to judicial authority during Reconstruction, the large public outcry surrounding the Legal Tender decisions, the long period of Populist-Progressive attacks on the courts reaching from the late 1800s to the 1920s, the New Deal and the Court-packing controversy, challenges to the decisions of the Warren Court (such as Brown v. Board of Education, decisions favoring communists, and the controversial reapportionment or school prayer decisions), and, finally, some more recent controversies such as that surrounding the Supreme Court's decision in Roe v. Wade.

From 200 years of challenges to judicial independence, some fairly clear lessons have emerged. First, attacks on the judiciary throughout history are inevitably political. By this I mean they are launched to express dissatisfaction with the content of particular judicial decisions. Second, those attacks have come from every point on the ideological spectrum. Third, virtually every technique one might think of to limit judicial decision making has already been suggested or tried. Finally, and most important, almost invariably challenges to judicial independence fail, because the public does not support them. Once the citizens of this country pay attention to the debate, they are approving of judicial independence and disapproving of attacks on it. Unquestionably this popular sentiment has grown over the course of the more than two centuries of attacks on the federal judiciary. In the rare instances in which Congress has taken steps to influence judicial decision making, the almost invariable public response has been regret.

Attacks are political

The first lesson is that attacks on the judiciary are invariably political. Note that I say political, and not partisan, though the attacks often (but not always) are partisan as well. By political I mean that no matter what members of Congress or the executive branch have said about why they are threatening judicial independence, they are doing it because they do not like the way judges are deciding particular cases.

Sometimes there is a great deal of candor on the subject, but sometimes political actors try to wrap their motives in something their constituents might find a bit more palatable. The need for sugar coating seems to have increased in this century, as the public increasingly has become uncomfortable with attacks on judges.

An example of candor occurred in the early 1800s, when President Thomas Jefferson's Democrat-Republicans tried to impeach Supreme Court Justice Samuel Chase. This was the first and last time--until recently--that we have seriously considered impeaching federal judges because of unhappiness with the decisions rendered.

Chase, by almost any standard, was fit material for impeachment. He regularly engaged in partisan harangues, he browbeat witnesses and counsel, and he even refused to hear the legal arguments of counsel in some cases. But Chase's impeachment failed, largely because of the Democrat-Republicans' admission that they sought impeachment on the basis of the justice's views on the merits. As John Quincy Adams reported in his memoirs concerning the views of Representative William Branch Giles, one of the prime movers in the impeachment effort, "removal by impeachment was nothing more than a declaration by Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. We want your offices, for the purpose of giving them to men who will fill them better."

In contrast, when Franklin Roosevelt launched his attack on the federal judiciary with his now-infamous Court-packing plan, he felt forced to provide a nonideological cover for what was nonetheless obvious to all. Incidentally, this was not the first, but was assuredly the last, high-profile attempt to "pack" the membership of a federal court to achieve a desired result. When Roosevelt announced the plan on February 5, 1937, he justified it in terms of workload and judicial efficiency. For this he was attacked from all quarters as being disingenuous, and for having dictatorial tendencies. Newspapers around the country questioned Roosevelt's motives. Finally, Roosevelt had no choice but to be candid about his motives, which he did in a March 9 "fireside chat":

Last Thursday I described the American form of government as a three-horse team provided by the Constitution to the American people so that their field might be plowed. The three horses are, of course, the three branches of government--the Congress, the executive, and the courts. Two of the horses are pulling in unison today; the third is not.

Conservatives and liberals

History teaches that challenges to judicial independence have come from liberals as well as conservatives. It is easy to forget this, because in recent years complaints about judges generally have come from conservatives, concerned about what they perceive as liberal decisions. In the first half of this century, however, it was exactly the opposite. Perhaps it is for this very reason that Americans have developed a deep-seated caution about those attacks, concerned about creating a precedent that might come back to haunt them. Today it might be a liberal judicial ox that is gored, but tomorrow it might be a conservative one.

The issues confronting the United States in its first century were very different from what they are today. In the early 1800s, and again in the 1820s, the Supreme Court was attacked for its nationalizing tendencies. The causes for concern were often Supreme Court decisions that required the states to adhere to the policies of a national Congress and national Constitution. Dred Scott, of course, was attacked by Republicans for its pro-slavery outcome, and the notable instance of jurisdiction-stripping during Reconstruction represented a Radical and Republican attack on the Court, which--it was feared--would invalidate Reconstruction.

In this century the ideology is much more familiar. For the first half of this century it was Progressives and liberals who were attacking an entrenched conservative Court. Between the late 1800s and 1937, the Supreme Court invalidated the income tax, upheld the use of injunctions against the labor movement, and struck down numerous laws to protect worker safety, prohibit child labor, and regulate the hours and minimum wages of all employees. Then, of course, there was invalidation of many New Deal measures such as the Agricultural Adjustment Act.

Indeed, it is fair to say that during this century until the late 1950s defenders of judicial independence almost always were conservatives. Generally speaking, we did not really have a Supreme Court of liberal bent in this country until the 1950s. For most of history, conservatives defended the judiciary on the ground that it was the judiciary's job to protect constitutional values against rampant majorities. From the perspective of a constitutional historian, it is more than a little odd to see conservatives attacking the Supreme Court in the name of the people. When the courts were attacked by progressives for interfering with popular will, conservative response was simply to point out that that was the Court's function--to trump popular will in the name of the Constitution. Perhaps it is well to remember the election of 1924, in which Progressive party candidate Robert LaFollette gave a speech to a packed Madison Square Garden, arguing:

Either the court must be the final arbiter of what the law is, or else some means must be found to correct its decisions. If the court is the final and conclusive authority to determine what laws Congress may pass, then, obviously, the court is the real ruler of the country, exactly the same as the most absolute king would be.

Who was the judiciary's chief defender at the time? The Republican who won the presidential election in which judicial independence was a chief issue: Calvin Coolidge.

A road often traveled

Almost any imaginable technique to control the federal judiciary has been proposed. At times there were very serious efforts to implement such proposals, the vast majority of which failed. As we have proceeded through our 200-plus years of history, the American people seem to have ruled out the candidates one by one.

During the Jeffersonian Era, Congress took two direct swipes at the federal judiciary, one of which was the attempted impeachment of federal judges. First, it repealed the Circuit Judges Act of 1801, which had created numerous judgeships the Federalists rapidly filled before the Democrat-Republicans took office. The legislation, incidentally, was challenged on constitutional grounds and upheld by the Supreme Court. Second, there was the failed campaign to impeach federal judges.

One popular technique for dealing with unpopular decisions has been defiance. During Andrew Jackson's presidency, the states sometimes defied Supreme Court decisions, such as when Georgia went through with the execution by hanging of a Cherokee named Corn Tassels in the face of a Supreme Court order not to do so. Jackson was thought to lack the will to enforce federal court mandates. In another Cherokee controversy with Georgia, Jackson reputedly said, "John Marshall has made his decree, now let him enforce it." As one newspaper aptly reported, "We are sick of such talks [of defiance]. If there is not power in the Constitution to preserve itself--it is not worth keeping." It is notable, however, that when John Calhoun launched the nullification movement, Jackson made it clear he stood behind the Court. The last widespread attempt at defiance was in response to Brown v. Board of Education, not a chapter in our history of which anyone today is especially proud.

Attempting to strip the courts of jurisdiction also has been popular. During Reconstruction, Congress succeeded in the only successful attempt to strip the Supreme Court of jurisdiction, passing legislation over a veto by President Andrew Johnson that deprived the Court of jurisdiction to hear Ex parte McCardle, in which, it was feared, the Court would strike down Reconstruction. Another attempt shortly thereafter to limit the Court's jurisdiction for similar reason failed, and the only other close attempt was in 1957, in response to Supreme Court decisions that seemed to protect communists. The Jenner-Butler bill, which aimed to strip the Court's power in many cases involving communists, was watered down to almost nothing and still failed. Since then numerous proposals have been made to strip the courts of power over busing, abortion, or school prayer decisions, none of which have gone anywhere.

Court packing also had its day. I already have discussed FDR's failed attempt to pack the New Deal Court, the last serious attempt to do so in our history. The only arguably successful Court-packing occurred on the heels of Reconstruction, when President Ulysses Grant put two new justices on the Supreme Court, thereby rapidly changing the result in the Legal Tender cases. I say arguably, because history suggests the appointments may simply have been fortuitous.

Although these are the most frequently used techniques to control the federal courts, numerous others have been proposed. Many of these proposals were made during the Populist-Progressive era, and many have resurfaced recently. Examples include requiring a unanimous or a two-thirds vote for the Supreme Court to overturn laws, limiting the jurisdiction of the lower courts to overturn laws, recall of judges, limited terms of judges, and reversal of judicial decisions by the Senate. About the only thing not seriously proposed has been the rack, although vituperative popular sentiment has been expressed, including burning Supreme Court justices in effigy during the New Deal.

Support for existing system

As the history related thus far suggests, almost every attempt to interfere with judicial independence has failed. There is a reason for this--the public has chosen regularly to support the system we have, warts and all. Often it takes time for the public to focus its attention fully on what is happening in Washington, D.C., and attempts to limit judicial independence have gone quite far before being derailed. But for the most part derailed is what they have been. Interestingly, those politicians who suggested aggressive treatment of the courts sometimes watched their political futures fail along with their proposals.

The only successful attempts to interfere with judicial independence met with subsequent popular unhappiness. Those "successes" were the stripping of the Supreme Court's jurisdiction to hear the McCardle case, and the arguable packing of the Court that heard the second Legal Tender decision. As noted above, a subsequent attempt to strip jurisdiction failed; the legislation was a matter of tremendous controversy, with many Republicans splitting off and opposing the measure. Similarly, even though the first Legal Tender decision--partially invalidating the government's printing of money during the Civil War--was met with widespread unhappiness, when the Court changed its mind in response to new membership, the second Legal Tender decision was met with even more widespread derision. It was one of the Supreme Court's lowest moments.

From the early days of the Republic until after the Civil War, judicial supremacy was not established. Once it was established in the minds of the American people, politicians tried varying techniques to control that supremacy. Some of the early attempts succeeded, but gradually over time the citizenry has expressed its view that the ordinary processes of judicial decision making and judicial attrition should run their course.

Although there is loud public clamoring at times to do something about judges, when push comes to shove and calmer minds prevail, the public has always stepped away from the abyss. In the meantime, some politicians have fallen into it. FDR, elected in one of history's largest popular mandates, fell quickly to his lowest approval when he proposed the Court-packing plan. Matters were so bad Republicans stepped aside and permitted Democrats to take the lead in challenging the president, who might not have recovered his popularity absent a world war. Other examples include Teddy Roosevelt, whose broad attacks on federal judges and his Progressive attempts to regain the presidency both failed, as did those of Robert LaFollette.

Ordinary processes work

What final lesson can be drawn from all this? Perhaps that when all is said and done, the American people have come to feel that the ordinary processes for controlling judges and the judiciary should prevail.

What are these ordinary processes? The first, and most relevant to today's debates, is the normal appellate process. Today's complaints seem for the most part to be about the decisions of individual judges, not about the judiciary as a whole. That is why the word impeachment has been uttered so regularly. But why is this necessary? No one judge decides any important case. In the federal system at least a three judge appellate panel, and perhaps an en banc court, reviews any case that is important. And truly significant cases are almost certainly going to be heard by the Supreme Court.

Indeed, it is because of the availability of Supreme Court review--a likelihood in landmark cases--that today's debate is so unfathomable to some of us that watch from the sidelines. Of the nine members of the Supreme Court, seven were appointed by Republican presidents. It is hardly a radical Court, and certainly not a radically liberal one. After all, for the first time since the New Deal we are seeing a resurgence in federalism. The right to abortion, while still existent, has been narrowed. The Court recently lowered the wall between church and state somewhat. Many death sentences are being enforced. It is difficult to see what the concern is for individual decisions, when the mechanism to overturn any aberrant ones appears to be in good health.

Second, there is the ordinary appointment and confirmation process of federal judges. If there was any lesson from the failed Court-packing plan, it was the general public's sense that natural attrition was the correct constitutional way to influence the federal judiciary. It has worked reasonably well--about as well as any system in our government--for almost 200 years. The truly conservative course would seem to be reluctance in tinkering with it.

Indeed, it does seem that much of what is currently occurring reflects anxiety about the number of appointments to the federal bench President Clinton may make. But this too is unseemly and a bit incomprehensible. Historically, it reeks of the same motives that caused the Federalists to pack the judiciary before Jefferson took office. In more recent history, 12 years of Republican presidential leadership placed a majority of Republican judges on the bench. Now, President Clinton's appointments must be approved by a Republican Senate, and given the case backlog and numerous vacancies, one can only hope that nominations will be forthcoming and confirmations will occur at a reasonable pace after that. But by any measure reported in the popular press or academic journals, President Clinton's appointments have been quite moderate in their decision making. It is hard to see, again, what the fuss is about.

The third process is one seldom discussed, but plainly evident. It is, in large part, a function of the appointment process, as well as the fact that federal judges are American citizens like the rest of us, having grown up in the same culture. The result of this process, if one may call it that, is that federal judicial decisions rarely fall out of line with popular sentiment for very long. Political scientist Robert Dahl observed this 40 years ago at the height of the Warren Court controversy, and numerous other academics have made similar observations. Surely that is the case today. The courts have "moderated" (if that is the right word) their views on abortion, the death penalty, the rights of criminal defendants, and the wall between church and state.

It is hard to see many issues on which today's federal judiciary is far outside the mainstream of public opinion. There may be a few, but then that is what living under a Constitution is all about. My sense is that they are undoubtedly very few, so few that those who are suggesting otherwise might check their premises. And yes, there are going to be decisions with which many of us disagree, even bitterly. Some decisions will seem very, very wrong. But we do have a way of correcting those problems, and that system has worked powerfully well for a long time. History suggests attempts to tamper with it are not, even in the short run, met with much success or public approval.

This article was adapted from the author's testimony before the U.S. Senate Judiciary Committee's Subcommittee on the Constitution, Federalism, and Property Rights, July 14, 1997.

Delving deeper

Senator John Ashcroft (R-Missouri), chairman of the Judiciary Committee's Subcommittee on the Constitution, Federalism, and Property Rights, and Senator Strom Thurmond (R-South Carolina) followed up on Professor Friedman's testimony with a letter containing additional questions. The following is an edited version of the professor's written response:

Would you agree that, as a general matter, it is a proper function for Congress to examine the proper allocation of jurisdiction between state and federal courts?

In general, the answer is yes. You undoubtedly are familiar with the "Madisonian Compromise," in which the framers of the Constitution gave Congress the power to create lower federal courts, but left it to Congress to decide whether to do so. Generally speaking, that power has been interpreted to give Congress leeway in deciding which lower courts to create and what jurisdiction to bestow upon them. Thus, as a practical matter Congress regularly decides whether to have federal courts hear specific causes of action, or whether to leave them in the hands of the state courts. The simplicity of this general answer, however, betrays another question of great complexity regarding the extent to which the Constitution imposes limitations on Congress's power to control the jurisdiction of the federal courts. This is one of the most mooted questions in the academic literature, with scholars of great ability coming to very different answers. Some would accord Congress great authority, perhaps even to remove jurisdiction from the federal courts over virtually any question. Others advance varying theories that would limit Congress's power. (My own views are set out in Friedman, A Different Dialogue: The Supreme Court, Congress and Federal Jurisdiction, 85 Nw. U.L. Rev. 1 (1990), which also contains a summary of the diversity of opinion on the subject.) My own position is that the Constitution is unclear on this question, for better or for worse, and that answers will be worked out as a matter of repeated interaction among the branches of the federal government.

Which brings me to history, once again. Although the question is much-mooted, it tends to be an academic debate simply because Congress rarely has sought to exercise the power. The only "successful" example of jurisdiction stripping occurred when the Republican Congress--in an effort to fend off a decision regarding the constitutionality of Reconstruction--stripped the Supreme Court of its statutory authority to hear certain habeas corpus cases. I put the word "successful" in quotation marks because although the Supreme Court acquiesced in this removal of its jurisdiction, it hinted that other means of review were available, a state of affairs that quickly proved itself to be correct. I also put "successful" in quotations because even the Republican Congress resisted subsequent efforts to strip jurisdiction, necessary though they appeared to be to avoid a decision on Reconstruction. Moderate Republicans (and much of the public) were so put off by the shenanigans that led to the original withdrawal of jurisdiction that they recoiled from further attempts.

The latest major attempt to strip the Supreme Court of jurisdiction was in response to several decisions in 1957 that seemed pro-communist. The bill that was the subject of attention was the Jenner-Butler bill, ironic because in an earlier era Senator Butler had sought to amend the Constitution to protect the Supreme Court from any such incursions on its constitutional role. This only serves to reinforce the point I made in my original testimony: attacks on the Court tend to come when people disagree with the substantive content of judicial decisions. The Jenner-Butler bill attracted wide national attention. In its original form the bill would have stripped jurisdiction over a number of areas, such as state bar admissions. In response to criticism, the original legislation was watered down thoroughly. Nonetheless, it still was defeated in a close and closely watched debate in the Senate. Supreme Court opponents could not even muster the votes to overturn a Supreme Court decision holding that the federal sedition law preempted similar state laws.

The point we can glean from history is that it is important to distinguish between Congress's general power to see that jurisdiction is allocated in sensible fashion between the state and federal courts, and jurisdiction-stripping legislation enacted by Congress simply to reverse the trend of decisions with which it disagrees. I believe no one disputes the necessity of Congress exercising the former function, although they may have strong opinions as to whether Congress is doing a good job or not, as we have seen during recent debates over congressional legislation federalizing crime. On the other hand, historical precedent would discount Congress's power to strike out at the federal courts in response to the substance of decisions. And for good reason. In all these cases the concern was that the independence of federal judges would be threatened.

During my testimony, you questioned whether the removal of jurisdiction over specific sorts of cases necessarily would threaten judicial independence, suggesting that judges would remain free to decide cases in any fashion they wished in the areas left open to them. I understand the logic of your position, but would disagree with its application in practice. I think my central point finds support in the very distinction I draw above. If Congress merely is doing its housekeeping job of allocating jurisdiction, I do not believe independence would be, or would seem to be, threatened. But stripping jurisdiction out of unhappiness with substantive outcomes makes it patent to judges and to the general public that if judges do not toe the line Congress would like to see followed, the judges simply will be removed from the picture. History suggests the public has seen such attempts for precisely what they are, as attacks on judicial independence, and such attacks have been resisted.

One historical example of a successful legislative reaction to perceived judicial activism is the Norris-La Guardia Act, which limits the ability of federal courts to issue injunctions against labor organizations. Do you consider that act to be an illegitimate intrusion on judicial independence?

This question raises a narrower issue than the question above, namely whether Congress has the power to remove a particular remedial tool from the federal courts. My answer turns on the principle widely accepted in this country and made plain by Chief Justice John Marshall in Marbury v. Madison that "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury."

Generally speaking, I do not believe the remedial power of the federal courts can be limited to such an extent that those courts cannot act effectively to remedy constitutional violations. There is good reason for this. If federal courts lack the power to provide an effective remedy for violations of the citizenry's constitutional rights by the other branches of government, then our entire system of constitutional government is threatened.

The seminal case on the labor injunction provisions of the Norris-La Guardia Act is the Supreme Court's 1938 decision in Lauf v. E.G. Shinner & Co. As Professor Gordon Young made clear in a law review article (A Critical Reassessment of the Case Law Bearing on Congress's Power to Restrict the Jurisdiction of the Lower Federal Courts, 54 Md. L.Rev. 132 (1995)), some read the Lauf decision as approving of Congress's broad power to limit the federal courts' jurisdiction.

I believe, in agreement with Professor Young, that Lauf stands for a narrower principle, one consistent with the general principle I advanced above. The injunction provision challenged in Lauf did not forbid labor injunctions entirely; it merely curtailed their use unless specific (albeit stringent) conditions were met. To the extent that those conditions themselves permitted federal courts to issue injunctions when the Constitution required them, the decision is unproblematic. Moreover, there is every reason to suspect that at the time Lauf was decided, this was the case. Lauf was decided right after the Supreme Court famously switched direction on the question of economic rights. The employers' constitutional "right" to a labor injunction depended on substantive due process protection of property rights that by 1938 there was every reason to doubt the courts would afford. If this were the case, no constitutional right was threatened by the provisions of the Norris-La Guardia Act at issue, and the limitation on the remedy was unproblematic as well.

You state in your prepared testimony that "no one judge decides any important case." How do you respond to the concern that, as a practical matter, litigants often may not appeal activist decisions?

In answering this question, I would like to distinguish between the decision of a particular dispute between parties, and the resolution of a broader legal issue by the courts. The distinction is an important one, because in our society any important and controversial legal question is likely to arise in more than one case. Generally speaking, important questions tend to filter their way through the state and federal courts to the Supreme Court, gleaning the wisdom of many judges, rendered in disputes presented in adversarial fashion by several sets of lawyers.

As for the impact of a decision in any single case, however, I adhere completely to my view, which is that such a decision can be appealed. Appeal is of right, of course, to at least a three-judge panel of the court of appeals. After that, en banc review and review by the Supreme Court are available on a discretionary basis.

As litigants, some governments choose not to appeal. This, of course, is their decision. A government might decide to forego an appeal because the district court decision is persuasive, because it appears the weight of the law is against it, or even because the government's position is politically unpopular. It is difficult to hold the federal courts accountable for these governmental decisions. Indeed, because these governments are accountable to their citizens, it is difficult to complain about a government's decision not to appeal on the ground that the unappealed decision interferes with popular will.

It is possible that governments decide not to appeal because of the expense of litigation, a point which deserves response. This economic decision is one that every litigant faces. It is resolved by considering the cost of litigation, available resources, the importance of the case, and the likelihood of prevailing. These are the difficult decisions governments face every day. My own suspicion is that in the vast majority of cases that truly are of importance to a government, in which there is any chance of ultimate success, an appeal is taken.

Moreover, it is inaccurate to portray governments as standing alone in facing the resource question of whether to take an appeal. There are many organizations that assist governments in this regard. For example, I serve on the advisory board to the State and Local Legal Center, an organization that files briefs before the Supreme Court in matters of interest to state and local government.

I hope these answers are helpful to the subcommittee's further deliberations.