By Daniel Katz

The commonly held classical theorem with respect to the Supreme Court, is that it is a body that transcends politics. The Court’s decisions are often viewed as above political reproach and countervailing majoritarian tendencies. In response to these beliefs, years of academic and associated commentary have sought to dispel the classical notion of a judiciary devoid of politics. Many theorists have substituted the premise that courts, especially at the highest level of review, act in a partisan political manner.[1]

This newly formed neo-classical construct has often been described as the partisan political or “all politics” model. Put simply, its underlying assertion is that the political leanings of individual justices will divulge themselves in the collective decision of the greater body. Furthermore, the wholly political or partisan political model also declares that the justices will often manifest the political leanings of the President by whom they are appointed. It suggests that the political leaning of the nominating president will reflect in the action and philosophy of his nominee. Using this reasoning, conservatives will appoint conservatives and liberals will appoint liberals. Shifts in judicial temperament can therefore be traced to shifts in the voter’s choice of President.

With respect to the Court’s inner-workings, those who view the Court through a post or neo-classical viewpoint would expect to see it operate in a manner similar to that of a small legislature. Several recent texts have documented just these types of activities and help many lend credence to the partisan political model.

In his groundbreaking account The Brethren,[2] Bob Woodward described the Court’s activity within this aforementioned pseudo-legislative context. Using his exposé style, Woodward receives inside information on the Supreme Court’s inner-workings through a variety of interviews provided by the Justices’ former law clerks. These accounts show a Court that is extremely partisan, where deal-making and logrolling abound. Justices are actually shown to trade votes and lobby in much the same manner that occurs on Capitol Hill.[3] In addition, later literature such as the recently released Closed Chambers[4] confirms the presence of such tactics. Practices such as the assignment of opinions to the justice who is perceived to have waning support are also documented. The rationale behind this tactic is that once a given justice has invested time they are unlikely to change their course.[5]

Academics, confronted with the aforementioned evidence illustrating the accuracy of the partisan model and faced with little else besides the classical theorem available, ultimately embraced the post-classical belief.[6] Yet, as with any other type of explanation, the neo-classical construct is not without shortcomings.

In defense of the model, those who support the wholly political ideal concede that limitations do exist as scrutiny is applied. One of these limitations described by the model’s defenders is a phenomenon known as “nomination failure.” This occurs when the nominating president fails to recommend a justice that reflects his subjective political outlook. Some of the most famous contemporary “nominating failures” include Chief Justice Earl Warren, Justice Harry Blackmun and arguably the recent appointment of Justice David Souter.

The accuracy of the so-called “nomination failure” theorem has been undermined by many for its lack of factual basis. These critics contend that presidents are simply too well-informed about the candidates selected to make such an errant miscalculation. Most, if not all, modern appointees to the Court have been either prominent political figures or sitting judges on lower-level courts. Therefore, the question that inevitably must be asked is whether these phenomena can be delineated as external or internal to the institution. For quite some time, theorists have tried to describe this by citing circumstances external to the setting. In other words, there was a miscalculation on behalf of a given president. Yet, considering the fact that most nominees have had a written or public record born from previous judicial experience or the holding of public office, it is hard for many to accept that a President could make such an errant miscalculation.

In place of an external explanation that presupposes presidential error, many contend that a theorem internal to the institution seems more plausible. As an institution, the internal workings of the United States Supreme Court have a pronounced effect upon certain persons such that prior indicators of belief do become invalid. Now it is important to state that most justices do not stray from the ideological tenets of their anointing president. Yet, it is the presence of the isolated, but still significant, percentage of nomination failures that ultimately dooms the “partisan politics” model and requires the construction of a new framework built as a phoenix from its charred remains.

In order to strive towards a more inclusive explanation, a post-partisan theorem must explain the actions of both partisan justices, who follow the lead of their appointing President’s political affiliation, as well as swing justices who appear to put judicial philosophy aside and attack jurisprudence on a case-by-case basis.

The Supreme Court, as well as the judicial system as a whole suffers from a continuing question of legitimacy. The potential for illegitimacy is linked to the tripartite American constitutional system. The judicial branch simply lacks the power of the sword that the executive branch enjoys under its command of the armed forces, and the power of the purse that Congress is granted with its right to tax and spend revenue. Henceforth, judicial legitimacy is only derived from the power of the pen and the public’s faith in the righteousness of its outcomes. This faith is maintained primarily through the public’s perception of an apolitical judicial branch.

Therefore, the Court may act as a political body and set forth a given agenda but must be ever-mindful of its countermajoritarian limitations. The new post-partisan model develops as one of moderation and adherence to concepts such as stare decisis as the Court faces judicial nullification and undermining in its continuing quest for legitimacy.

II

The concept of judicial legitimacy faced the nation early in its history. Several years after Chief Justice John Marshall asserted the Court’s right to judicial review, the case of Cherokee Nation v. Georgia[7] came before the Supreme Court. In that case, the Cherokee Nation asserted its sovereignty from both state and federal purview. This was the response to President Andrew Jackson’s strong-arm tactics that placed the Choctaw as well as several prominent tribes into treaties that allowed the Federal Government to act in the tribe’s best interest. Using the established in loco parentis doctrine the Federal Government began the removal of the Cherokee from their native lands of Florida and Georgia. Most historical accounts noted that this capitulation was less than voluntary. The Cherokee tribe sued the State of Georgia in the Supreme Court arguing for recognition of sovereignty from both state and federal law.[8] Speaking for the Court, Chief Justice John Marshall ruled for the Cherokee.[9]

The State of Georgia responded to the Court’s ruling with defiance. Despite the fact that the Chief Justice of the United States had issued a formal mandate to Georgia State officials, the State ignored the high Court ruling.[10] Matters were further complicated because the Court had adjourned for the term and was unable to remedy the situation until it reconvened the following October. President Jackson’s response to this act of judicial nullification was one of laissez faire. His purported words echo the limits of the Court’s authority and its need for legitimacy. President Jackson was reported by then Massachusetts Representative Georgia N. Briggs to have said in response to this entire incident, “Well, John Marshall has made his decision; now let him enforce it.”[11]

This is a prevalent reminder of the limits of the Court’s inability to persuade. The power of the pen is maintained through the legitimacy of its authors. To the extent that the Supreme Court acts in an egregiously countermajoritarian manner, their collective ability to wield legitimate power erodes.

Although the aforementioned is certainly a powerful example, it is not the only instance of judicial undermining with respect to the high Court. In fact, many cite the Roosevelt-era court-packing legislation as the most strident illustration of this phenomenon.[12]

The crisis of 1937 came not so much as a surprise in tenor but rather, in its harshness. The President justified his plan for court decomposition not based upon his hostility toward the judiciary’s nullification of given legislation but rather under the assertion that the current Court was tardy in their work. Furthermore, the President reasoned that this delinquency was the result of the Justices’ elder age.[13] Placing the accuracy of this assertion aside, the fact remained that President Roosevelt’s plan called for the addition of court seats for all justices over seventy.[14] Those appointments would then be chosen at his behest.[15] This plan was constitutionally possible because of the vagueness of Article III and its deference of authority to legislative hands to comprise the shape and structure of the federal judiciary.[16]

Most did not accept the veracity of the Roosevelt plan and later stated that the 1937 crisis or controversy stemmed from a series of rulings that severely limited Congressional power to implement legislation under the Commerce Clause.[17] In the most poignant of these rulings, Schechter Poultry Co.,[18] the Court used a narrow definition of commerce to determine that Congress acted beyond its constitutionally allotted authority when it approved the National Recovery Act (NRA).[19]

This ruling dealt the Roosevelt administration a severe blow. Although several cases dating back to 1932 had undermined Roosevelt’s ability to pursue New Deal legislation, it is often Schechter that is credited with inducing the court-packing plan.

Furthermore, between that 1935 ruling and the 1937 Roosevelt plan announcement, several other cases only solidified the execution of the concept.[20] During this period, the Supreme Court struck down many federal statutes and programs including the Agriculture Adjustment Act (AAA) in U.S. v. Butler[21] and the government regulation of coal production in Carter v. Carter Coal Co.[22]

With this collection of decisions in hand, President Roosevelt announced his 1937 judiciary reconstitution plan. The Court was placed in an arduous position. Even when Congress, by a single vote margin, rejected the President’s plan, questions mounted with respect to the legitimacy of the Court’s countermajoritarian actions.

In NLRB v. Jones,[23] decided just months later, the Court reversed course and upheld the National Labor Relations Act. They did so largely by undermining the prior precedent set forth in Schechter Poultry Co.[24] and by developing a secondary rationale through which acts of Congress could be justified under the Commerce Clause. The Court latched onto the literal text of the Commerce Clause and found that if something “effected commerce” in either direction it could be sustained as constitutional.[25] Thus, the proverbial floodgates had been opened.

The Roosevelt Administration had achieved what they sought. Over the next few years, dozens of New Deal statutes would be upheld by the high Court. The plan was never resubmitted to Congress and the judicial branch was able to maintain its integrity in the public eye. Arguably, the fact still remains that pressure was placed upon the Court, ultimately affecting the given outcome.

It should be noted that the aforementioned historical examples of judicial nullification and undermining are not intended to be an all-inclusive list, but rather are provided to demonstrate the real limits of court power. Yet, it is not difficult to find past examples of judicial temperament and deference to majority trends. In fact, one need only view decisions during the tenure of the current Chief Justice to find examples of judicial moderation.

The Rehnquist Court’s jurisprudence is one that is aware of prior acts of judicial undermining. It is a jurisprudence characterized by its widespread moderation especially when compared to a political behaviorist or partisan archetype. An abstract view through the behaviorist paradigm might yield a far more conservative outcome than that which is found during the current Court’s tenure. Given the fact that seven out of nine current court justices were appointed by Republicans Presidents it is difficult to explain court outcomes that uphold abortion and Miranda warnings.

In Planned Parenthood v. Casey,[26] the Court echoed its first substantive words on the issue of abortion since its decision in Roe.[27] Many thought that the conservative-heavy Court would overturn Roe[28] and return this abortion issue to be determined on a state-by-state basis. In fact, it is not preposterous to say that the issue of abortion had been a litmus test for most of the seven sitting Republican nominees. Yet, in the end the Court held in Casey that there was a right to abortion, and although it might be abrogated by the viability argument, the fundamental freedom remained.[29]

In the Court’s most recent term, U.S. v. Dickerson[30] questioned the constitutionality of the Court’s prior ruling in Miranda.[31] The sua sponte question raised by the Fourth Circuit Court of Appeals was whether Congressional legislation, §3501,[32] passed following the Miranda decision had indeed become the applicable statute with respect to the voluntariness of a given confession. In Miranda, the Court invited Congress to pass a statute that was different from the system set forth in their ruling provided it protected certain enumerated privileges.[33]

Congress responded by passing §3501, which arguably did not provide the same constitutional protections, but still provided that a confession must be voluntary.[34] Many critics predicted that the Court would affirm §3501 and undermine the prior Miranda ruling.[35] They based their prediction upon previous statements by justices in cases such as Davis[36] when serious apprehensions about the future of the Miranda warning were raised. Yet, in the end the Rehnquist-led Court went in another direction. Justice Rehnquist speaking for the Court declared that Miranda was in fact a constitutional decision.[37] Furthermore, in his oration he noted that although the current Court would likely not have arrived at a decision similar to that in Miranda it was to be honored under the doctrine of stare decisis.[38]

Both of these aforementioned examples highlight the Court’s deference to precedent as it serves their respective purposes. The New Deal Court voided prior precedent to avoid undermining its legitimacy. The current Court adheres to precedent in order to position itself within the majority spectrum and not face political repercussions. In the end, the United States Supreme Court tempers its imposition of a particular political ideology against its continuing question of legitimacy. This has and will continue to foster the moderation of the individual justices and the collective Court. The Justices must realize the limitations of their actions and the need to maintain public confidence in the Court. History demonstrates how other branches within the tripartite system can act when one is too far removed from the will of the people. Although many nominees enter their service to the Court with an arguably extremist history, the institution and its need to be majoritarian ultimately tempers their rhetoric. Thus, as new Presidents designate appointees to the Court it is likely that their influence upon the institution will not be nearly as pronounced as its influence on them.

[1] Becker, Theodore, Political Behavioralism and Modern Jurisprudence, Rand McNally, Chicago, 1969.

[2] Woodward, Bob, The Brethren, Morrow, William and Co., September 1980.

[4] Lazarus, Edward, Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court, Penguin USA, June 1999.

[7] Cherokee Nation v. Georgia, 30 U.S. 1 (1831).

[11] Greeley, Horace, The American Conflict: A History of the Great Rebellion in the United States if America, 1860-1864, Hartford, 1865, I, 106.

[13] Jackson, Robert H., The Struggle for Judicial Supremacy, Alfred A. Knoph and Co., 1941, 86-220.

[18] Schechter Poultry Co., 295 U.S. 495 (1934).

[21] United States v. Butler, 297 U.S. 1 (1936).

[24] Schechter Poultry Co., 295 U.S. 495 (1937).

[26] Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).

[29] Planned Parenthood of Southeastern Pa. V. Casey, 505 U.S. 833 (1992).

[30] Dickerson v. United States, 99-5525 (June 2000).

[35] Katz, Dan, “Dickerson v. United States: Miranda and the Applicability of U.S.C. Section 3501,” 2 OR 37-45, Winter 2000.

[36] Davis v. United States, 512 U. S. 452 (1994).

[37] Dickerson v. United States, 99-5525 (June 2000).