history of the countermajoritarian difficulty, part II: Reconstruction's political court, The

Georgetown Law Journal, Nov 2002 by Friedman, Barry

INTRODUCTION

Today's Supreme Court is, in the minds of many, impregnable. According to recent commentators the Court has-without serious challenge-created federalism doctrine out of whole cloth and applied it aggressively to strike congressional statutes,1 inappropriately decided the outcome of a presidential election,2 and arrogated to itself the sole power to determine what the Constitution means.3 The Warren Court also is frequently accused of activism, but that Court struck down state statutes that often lacked national support, and it ultimately faced a backlash after misjudging the national mood.4 The Rehnquist Court pursues its aggressive strategy against congressional statutes bearing the imprimatur of national backing, yet does so with seeming impunity. As Larry Kramer recently explained: "The Rehnquist Court no longer views itself as first among equals, but has instead staked its claim to being the only institution empowered to speak with authority when it comes to the meaning of the Constitution."5

Listen, for the sake of comparison, to words of a time generally considered very different from our own. The year is 1867; the Speaker is Representative John Bingham, hardly the most radical member of the Reconstruction Congress. Bingham believed-as did many others during this volatile time-that the Supreme Court might act to intervene and invalidate military rule of the South before Reconstruction was accomplished and the Southern states were readmitted to the Union on Congress's terms. Yet, Bingham claimed that there was little cause for concern about the Supreme Court:

If . . . the [C]ourt usurps power to decide political questions and def[ies] a free people's will it will only remain for a people thus insulted and defied to demonstrate that the servant is not above his lord by procuring a further constitutional amendment and ratifying the same, which will defy judicial usurpation by annihilating the usurpers in the abolition of the tribunal itself.6

This snapshot portrays the Supreme Court in what appears to be quite different circumstances from those of the current Court, but it turns out that very similar forces account for both the apparent vulnerability of Reconstruction's Court and the seeming impregnability of today's. Understanding these forces is extremely important because, taken together, they determine the level of independence of the judiciary from popular politics. Too much judicial independence may threaten popular sovereignty; too little may undermine individual liberty. It is important to get it right and getting it right requires an appreciation of precisely how politics affects judicial review.7

This Article examines the political forces that determine the judiciary's independence from majoritarian politics-and, thus, its freedom to engage in judicial review. The thesis of this Article is that politics can threaten judicial independence, but also can serve to protect it. Three forces in particular take center stage here. The first is the judiciary's own role as a "political" actor: Judges can act willfully and weather the consequences or they can be sensitive to the political environment in which they operate.8 The second is the political economy of court-tampering, or what is required politically before the political branches can take punitive action against judges. It turns out to be surprisingly difficult to take action against the federal judiciary and doing so requires a confluence of political events that rarely is encountered today.9 The third is public support for preserving a realm for judicial review separate and apart from ordinary politics. Although seldom studied, it ultimately is popular approval or disapproval-both of court decisions and actions threatened against courts-that determines the freedom with which any institution may act.10

The focus of this study is the Supreme Court during Reconstruction, arguably the single best period in American history for studying the relationship between politics and judicial review. Like nuclear particles observable only when they collide, the boundaries of law and politics are seen most sharply when clashes between the two occur. Today those clashes are rare.

During Reconstruction, quite unlike any other period in American history, the Supreme Court's independence was in almost constant jeopardy.11 As a time when there were threats to abolish, reform, or reconstruct the Supreme Court at an institutional level, Reconstruction offers us a window into what it truly means to be a "political court." Yet, with the exception of one landmark Supreme Court decision, Ex Parte McCardle12 (the import of which is often misstated or misunderstood), most of what happened during this period has been lost to the canonical lore of constitutional history. Legal academics pay abundant attention to Marbury v. Madison,13 Lochner v. New York,14 and the New Deal Court-packing plan, all milestones in the story of judicial review. However, little notice is paid to Reconstruction debates about subjugating the Supreme Court to popular will, about the constant manipulation of the Court's size during that period, about the Legal Tender Case controversy,15 or even about the close particulars surrounding Congress's decision to strip the Supreme Court's jurisdiction, the subject of the McCardle decision.16