Justice Ginsburg repeatedly expressed her opinions about President Trump, and under similar circumstances any judge would be forced to recuse themselves.
Both the Court and the Federal Reserve enjoy substantial—indeed, extraordinary—independence in law compared to the most important political actors in our government. But these protections are still porous and a determined democratic majority could overcome them. What effectively guarantees independence is the power of the elites that surround them, underscoring their place as the aristocratic element of the mixed regime. As a result, the greatest danger to their independence comes when there exists fundamental polarization among elites, as is the case today.
The Independence of the Supreme Court
Begin with the legal guarantees on the books for the Supreme Court, which appear the stronger of the two institutions. The Constitution gives Supreme Court justices tenure during “good behavior,” a phrase that is generally thought to give them life tenure. The justices can be impeached by the House and then convicted by the Senate for “high crimes and misdemeanors.” But over the last 230 years, none have been convicted and only one has been impeached—and that one case, concerning Justice Samuel Chase, happened in the early nineteenth century. After what he regarded as the debacle of failing to convict Chase, Thomas Jefferson said impeachment for the justices was “a scarecrow.” And the judgment of history has proved Jefferson right.
But while individual justices are secure, it does not follow that the independence of the Supreme Court is guaranteed—especially if by independence we mean decisions independent of democratic sentiment. The democratically elected President can appoint new justices to the Court upon the death or retirement of incumbents and can thus change the direction of the Court. But, given the length of the justices’ terms and the rotation of Presidents and parties in office, it is difficult for some new political movement to transform the Court.
And here the power of elites makes that transformation particularly difficult, at least when the elites are relatively united. Richard Nixon campaigned against the activist Warren Court and Ronald Reagan promised to appoint justices who reflected his views of following the Constitution as written. But famously the Burger Court became the Revolution that Wasn’t, not delivering the kind of change that Nixon wanted. Nor did the Court that Reagan and his successor George H.W. Bush change the fundamental precedents of the Warren and New Deal courts or shift it aggressively to the right.
The rapid transformation of the Court was blocked by the power of the cognitive elite in the law schools that educated the justices and the clerks that surrounded them, as well as the press that dominated coverage of the Court. From 1968 to 1991 all the justices were appointed by Republican Presidents and all but William Rehnquist, Antonin Scalia, and Clarence Thomas moved left during their tenure. Some of these moves were dramatic. By political science metrics, Harry Blackmun began as one of the most conservative justices on the Court and ended as one of the most liberal. The environment in which the justice operated reflected a moderate left elite. The law schools and the press that passed judgment on their reputation were of largely one mind and over time the minds various justices often melded with that diffuse opinion.
The professional bar also leaned to the moderate left and played a part not only in creating the intellectual current along with which justices could drift, but the bar also intervened in the appointment process as well. The American Bar Association—the leading establishment legal organization—rated nominees to the Court. And when the conservative originalist Robert Bork was nominated for a pivotal seat, four of its members called him professionally unqualified—an act tremendously damaging to his confirmation, despite the fact that Bork had been a professor at Yale Law, was one of the leading authorities and antitrust law, and had served as Solicitor General of the United States.
To be sure, the legal establishment has now splintered. After the rise of the Federalist Society there is now a counter-establishment. But a legal revolution is still not quite complete. We always seem to be two voters away from overruling Roe! And even if there were a legal revolution, it is not at all clear that it would be a populist revolution. Restoring the Constitution in exile is not likely at the top of the list of a voter’s concerns. Fundamental political change of the aristocratic element of a regime is generally mediated by aristocrats.
The legislative power over the Supreme Court is even formally greater than the President’s power of appointment. The number of Supreme Court justices is not fixed by the Constitution, but can be changed at any time by statute. Yet in modern times, despite sometimes virulent popular criticism of the institution, Congress has refrained from packing the Court.
The most famous court packing proposal illustrates that what protects the independence of the Court from popular control is ultimately the elites most interested in and influential with the Court. When Franklin Roosevelt tried to pack the Court, he faced a storm of criticism led by lawyers. Even if some members of the elite were unsympathetic to particular decisions of the Court, they rightly saw that the court packing precedent would weaken the Court as an institution and thus the place where they had special influence over the political life of the nation.
The Independence of the Federal Reserve
The independence of the Federal Reserve depends on the influence of the elite that surrounds it as well. It too has protections for independence that would otherwise be porous to popular influence. On paper, the independence of the Federal Reserve seems weaker than the Supreme Court. The members of the Federal Reserve are not given life tenure by the Constitution. In fact, they do not have life tenure at all, but rather 14 year terms. And off paper it seems even weaker. In part because of the lucrative outside options for an ex-Federal Reserve Board member, almost no one stays fourteen years. Two-term Presidents are regularly in a position to appoint the entire membership, in contrast to their more limited opportunities for appointment-making to the Supreme Court. Even one-term Presidents like Donald Trump might be able to do the same.
But again appearances are somewhat deceiving. First, it is difficult to put those outside the financial mainstream on the board, as Donald Trump found out when his nominations of Herman Cain and Steven Moore imploded under intense criticism. The appointment of the Chairman of the Fed, the most important position, is also constrained by financial elites and the market itself. Fed Chairs are frequently reappointed by Presidents of the opposite party that first appointed them. Continuity of Federal Reserve policy and retention of a known quantity are thought to be good for markets. And of course, Presidents have an interest in keeping investors happy and the economy humming. Famously, James Carville once said: “I used to think that if there was reincarnation, I wanted to come back as the president or the pope or as a .400 baseball hitter. But now I would like to come back as the bond market. You can intimidate everybody.” To further illustrate the point: President Clinton, a Democrat concerned about the reaction of markets, reappointed Alan Greenspan—a former disciple of Ayn Rand—who was no Democrat’s idea of an ideal economist.
The Fed’s most important job is to set monetary policy, which is handled via the Federal Open Market Committee. While all seven members of the Federal Reserve sit on this committee, so do five of the twelve Regional Federal Bank Presidents, four in rotation and one who is always the President of the New York Federal Reserve. And because positions on the Federal Reserve are often vacant and the positions of Reserve Presidents rarely are, the Fed presidents are a substantial minority (and sometimes majority) of the committee. And it goes without saying that Presidents of Federal Reserve banks are generally well connected to the mainstream financial community.
Finally, unlike Supreme Court clerks, the key staff at Federal Reserve stay around for a long time. As Professor Conti-Brown notes, Fed staff exercise enormous and relatively unaccountable power. The General Counsel, for instance, makes key legal calls such as those that led to the momentous decision to reject Lehman’s application for a bailout. And they all swim in the waters of the financial cognitive elite.
For all these reasons, ordinary politics is unlikely to dramatically change the behavior of the Supreme Court or the Fed from year to year. What one needs is a change in the reigning ideology of the relevant elites. It is to such changes and the effects of current elite polarization that we turn in our next and final post.