Barry Friedman, Author of The Will of The People
The Will of the People

History makes clear that the classic complaint about judicial review—that it interferes with the will of the people to govern themselves—is radically overstated. The American people have always had the ability to limit judicial review—or even to eliminate it entirely. The persistent question throughout history has been whether, and to what extent, they should exercise this power. In the course of answering that question the American people have confronted, and given meaning to, the idea of democratic government under a Constitution.

During the debate over ratification of the Constitution, Alexander Hamilton—writing as “Publius” in the Federalist Papers, rejected Brutus’ prediction that the judiciary would prove all-powerful. Hamilton’s Federalist No. 78 remains today one of history’s great defenses of judicial independence. But the most memorable part of Hamilton’s tract was his point that there was no need to worry about the judges, because they had little capacity to threaten democratic principles.

Judges lacked both the Executive’s control over the “sword” and Congress’s control over the “purse.” Possessing “neither FORCE nor WILL, but merely judgment,” Hamilton explained, the judiciary “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” For this reason, he assured his readers, the judiciary would be “the least dangerous” of the three branches of government. It turned out that Hamilton was at least as prescient as Brutus about judicial power.

It is difficult to appreciate today the devastating nature of some of the early challenges to judicial authority. In the aftermath of the Civil War, Congress had the task of “reconstructing” the southern states as part of restoring the Union. Many at the time believed that, given the chance, the Supreme Court would render a decision invalidating continued military rule of the South before Congress could consolidate the gains the Union had achieved on the battlefield. But quite unlike all the hand-wringing we hear today, judicial supremacy did not trouble members of Congress then. Listen to Representative John Bingham of Ohio, a Republican leader of the Congress:

If . . the court 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.

As it turned out, Bingham’s colleagues did not have to go nearly so far as “annihilating” the Supreme Court to ensure they controlled it. Rather, Congress simply withdrew the Court’s jurisdiction at a critical moment, and the Justices bowed to a greater power. So much for Brutus’ worries.

The irony of the defeat of Roosevelt’s Court-packing plan is that the very weapon denied him in his struggle against judicial authority was used freely by Abraham Lincoln’s generation. Lincoln and his fellow Republicans swept into power as the Civil War began. The Dred Scott decision having made the potential dangers of judicial review perfectly clear, the newly-Republican Congress was hardly going to stand pat and allow the Justices to threaten their efforts to hold the Union together. Three times during the Civil War and its aftermath Congress altered the number of Justices who sat on the Supreme Court. In each instance proponents of enlarging or reducing the number of Justices offered a reason that had nothing to do with ensuring political control of the Court—just as Roosevelt wrapped his own plan in the flimsy gauze of an argument that the elderly Justices were behind in their work and needed help. But those watching were perfectly aware that by altering the number of Justices, Congress ensured that the Court majority rested in hands that could be trusted.

Roosevelt failed where the Civil War Congress succeeded in part because Americans’ understanding of the Supreme Court and its role had changed between 1868 and 1937. This was not history’s first change of attitude toward judicial review. When the Supreme Court decided the Dred Scott case, holding that Congress could not regulate slavery in the territories, many of Lincoln’s generation feared the decision would ultimately tear the country asunder. Yet very few of them said that Dred Scott should simply be ignored, or defied. This may not be surprising to us today, when talk of defying the Supreme Court is taboo, a signal that one is unwilling to play by the basic rules of American governance. It was apparently unsurprising to many Americans in 1857 as well. Yet, a generation or two earlier defiance of the Supreme Court by state governments was the order of the day.

Some prominent works of political science and history have taken into account the relationship between the popular will and judicial power, but they fail to capture how that relationship has evolved throughout the course of American history. Yet, it is only through observing this evolution that we can begin to really understand the authority the Supreme Court wields today. In 1960, Yale political scientist Robert McCloskey published a wonderful, engaging history entitled The American Supreme Court, in which he argued that the Justices ignored public opinion at their peril. For this reason, he concluded, the Court “seldom strayed very far from the mainstreams of American life and seldom overestimated its own power resources.” Despite its remarkable insight, McCloskey’s justly-famous history failed to grapple with just how judicial power had been sculpted by those very instances in which the Justices did in fact overestimate their own power. The Justices today unequivocally exercise more authority than they did at the founding. But that authority exists as it does today only because, through a process of trial and error, step and misstep, the country came to understand what it wanted out of the Supreme Court, as well as what it would tolerate.