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Congress Has Never Given the Supreme Court a Free Ride

Congress has many ways to influence the U.S. Supreme Court other than impeachment, although the possibility of impeachment receives the lion-share of attention. Contrary to the belief that attempts to discipline the Court are few and far between, and largely ineffectual, evidence shows there have been numerous measures introduced in Congress to respond to contested actions by the Court. To be sure, the mere “introduction” of congressional court-curbing measures may seem like a paper tiger. Drawing on a century of data, however, Emory political scientist Tom Clark shows these congressional actions, channeling changes in public support for the Court, seem to influence the Court’s decisions. The Court shows itself less willing to strike down congressional legislation when there’s an increase merely in the introduction of Court-curbing bills in Congress. The rub is that the Court responds strategically to the introduction of these measures, tempering its behavior until it has improved its standing with legislators.

Impeachment, however, is not the only tool Congress has available to discipline justices (and other federal judges). Of the alternatives, one of the best known, due to President Roosevelt’s failed “court packing” plan, is changing the size of the Court.

Given the constitutional tenure of federal judges extends during “good behavior,” judges usually can serve as long as they wish. This can create tension between the judicial branch and the political branches when dramatic electoral changes occur in the latter. All national-level judges had been appointed by Presidents Washington and Adams during the first twelve years of the republic. When the bitterly fought election of 1800 swept Jefferson and the Jeffersonians into power, this placed the judicial branch at odds with the political branches of the national government. This was not merely a matter of Supreme Court decisions at variance with what Congress and the President wanted. At the time, judges felt free to be openly partisan, sometimes making vitriolic denunciations of Jefferson and the Jeffersonians from the bench. This is what got Justice Samuel Chase into trouble, and ultimately led to his impeachment in the House (although the Senate did not convict him).

This sudden change in the partisan composition of the national political branches also occurred in the 1930s when Democrats swept into power with dominating majorities. Until the “switch in time that saved nine,” the Supreme Court and the President were at loggerheads over the constitutionality of important features of the New Deal.

Roosevelt proposed to add a new justice to the Supreme Court for each justice over the age of 70. This was ostensibly to help with the Court’s workload. Important Democratic leaders in Congress balked at the proposal, and it went nowhere. Indeed, FDR never won a major domestic initiative after floating the Court-packing plan. (Not that the relationship is necessarily causal.)

Nonetheless, expanding the size of the Court (or federal judgeships more generally) is a straightforward means by which Congress and the President can immediately to change the location of the median justice on the Court. Further, it takes only a majority vote, as opposed to a supermajority in the Senate for conviction in an impeachment trial.

Beyond altering the number of justices on the Supreme Court as a Court-curbing technique, Congress can attempt legislatively to control the Court’s jurisdiction. More diffusely, Congress need not increase nominal judicial salaries so that they keep pace with inflation. They can also change retirement plans or delay filling lower court openings.

As Clark shows is his book, Congress need not adopt any of these measure to influence the Court. The Court appears to respond merely to the introduction of the measures. And, again, unlike impeachment, all of these measures can be constitutionally adopted with a majority vote.

None of this is to suggest when any of these measures should be used, or whether they should ever be used. The vast bulk of the work judges do is administration; answering mundane questions and controversies about the application of legislation and law. Nonetheless, in constitutional adjudication, particularly in Fourteenth Amendment jurisprudence, justice choices are often a matter of political choice. As Clark’s work shows, while Congress rarely adopts legislation disciplining the Court, myriad of bills have been proposed, and the Court strategically responds. Congress has never given the Court a free ride.

Reader Discussion

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on August 06, 2018 at 10:08:58 am

Gee, what would you call it when a President during the State of the Union Address castigates and warns Judges about overturning a law and then one Judge, The Chief, changes his opinion?

Cowardice?
Political acumen?
Prudence?

I struggle with this. who can help me?

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gabe
on August 06, 2018 at 12:09:58 pm

Yawn. Let me know when Congress, by a majority vote, starts stripping the federal courts' jurisdiction to review administrative decisions over something like immigration, welfare benefits and social security.

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EK
on August 06, 2018 at 15:17:46 pm

Republican members of Congress bitched and moaned ad nauseam but did nothing jurisdictionally about abortion jurisdiction or any of Justice Kennedy's other bulldozer pushes through the wall of the Fourteenth Amendment. Republicans also threaten but leave untouched judges' pay and case jurisdiction generally. There is a highly worthwhile pending Republican threat to break up the Ninth Circuit which will also go nowhere because Majority Leader (sic) McConnell loves his filibuster/cloture conundrum. (Gentleman's honor, don't you know, to get nothing done if anybody objects in the Senate.)
Yet, Congressional Republicans did strike a blow at Roe with the Hyde Amendment and to the Court's lethargy in defense of religious liberty by enacting the Religious Freedom Restoration Act, and President Trump reinstated the Executive Order banning abortion funds in international aid. So Republicans have restrained the Court somewhat on two important matters.

But Democrats get REAL results, the kind that last forever and reshape the country, its culture and its constitution. FDR publicly intimidated, legislatively threatened and ultimately scared hell out the Supreme Court that had just voted him the country's biggest transgressor of constitutional limitations, and next thing you know FDR's administrative-state legislation was getting the Court's green light (which rewrote the constitution, eliminated separation of powers and created the uncontrolled, uncontrollable legal leviathan of federal bureaucracy.)

However, Democrats have gotten the most political mileage through their 30 year "obstruction by delay and intimidation campaign" which Borked Bork and gave the Democrats that "human jump ball," Justice Anthony Kennedy, who, in turn, gave the Dem's Casey saving Roe, Lawrence v. Texas curtailing federalism and restricting state police powers over moral matters, Fisher v. University of Texas saving the Dem's beloved race-based affirmative action in college admissions, and Massachusetts v. EPA giving Dem's federal power over their new favorite "pollutant," carbon dioxide, and clearing the Dem's a path to "climate change dirigisme and the road to serfdom." And through the Democrats' delay and intimidation path to Justice Kennedy the Dem's also achieved a rewrite a) of skads of state capitol punishment laws so as to make them conform with the academic Left's social justice theories, b) laws affecting detention and treatment of enemy combatants so they conform to the Left's social justice theories, and c) the institution of marriage in Obergefell v. Hodges by which the Democrats seek to destroy the 3000 year-old cultural and religious foundations of the Left's hated western civilization.

Yep, Democrats in Congress and Democrat Presidents bitch and moan about the Supreme Court and, unlike those country club folks and big-bottomed banker boys asleep across the aisle, Dem's get lots done. Besides all that I have touched on, supra, Gabe points out how Obama intimidated Roberts into, SHAZZAM, converting Obamacare into ObamaRobertsCare.

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Pukka Luftmensch

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.