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Judicial Independence and the Reality of Political Power

Published online by Cambridge University Press:  05 August 2009

Gerald N. Rosenberg
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Extract

Defining judicial independence as the ability of courts to make decisions in the short term without regard for the preferences of officeholders, this article empirically examines the conditions under which judicial independence is and is not likely to be found. Nine periods of intense congressional hostility to the Supreme Court are identified and Court reactions are chartered along a continuum from pure independence to total subservience. Examination of the historical record highlights five key factors related to independence and shows that judicial independence existed in only three of the periods. In the remaining six periods, the Court either refrained from hearing certain cases, issued opinions more in line with congressional preferences, or reversed itself. The article rejects the hypothesis of judicial independence, concluding that in times of congressional opposition to the Court, only under special conditions identified in the analysis will it retain its independence.

Type
Special Issue on Public Law
Information
The Review of Politics , Volume 54 , Issue 3 , Summer 1992 , pp. 369 - 398
Copyright
Copyright © University of Notre Dame 1992

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References

I gratefully acknowledge helpful and extensive comments on an earlier draft from John Mark Hansen and Cass Sunstein of the University of Chicago and Rogers Smith and Stephen Carter of Yale University.

1. Horsky, Charles A., “Law Day: Some Reflections on Current Proposals to Curtail the Supreme Court,” Minnesota Law Review 42 (1958): 1105, 1111.Google Scholar

2. U.S. v. Will, 449 US. 200, 218 (1980). To the extent that public opinion is mediated through executive and legislative action, it is subsumed under the definition.

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5. This is especially the case with electoral realignments. It has been argued that attempts to curb the Court are due to the periodic electoral realignments that sweep the United States. However, since their precise meaning and identity is unclear, and since this claim reduces to one of electoral pressure, it seems more sensible to focus on the broader indicator. Focusing directly on the positions of elected officials includes realigning periods but is not limited to them.

6. In addition, the president could order the army to arrest or detain judges, as was done by President Lincoln. Similarly, presidents, like governors in the 1950s and 1960s over the issue of desegregation, can order governmental institutions to ignore Court orders. But when this stage is reached, there is no constitutional government.

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13. Marbury v. Madison, 5 U.S. 49 (1 Cranch 137) (1803). While Chief Justice Marshall did seize the opportunity to assert the power of judicial review, little political attention was paid to it. The focus was on the more immediate Federalist- Republican battle, including the Court's holding that some actions of the executive branch were amenable to judicial oversight. (Mccloskey, Robert G., The American Supreme Court [Chicago: University of Chicago Press, 1960], pp. 44–45).Google Scholar

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22. U.S. v. E. C. Knight, 156 US. 1 (1895), Pollockv. Farmers Loan and Trust Co., 157 U.S. 429 (1895), affd on rehearing, 158 U.S. 601 (1895). See, Generally, , Paul, Arnold, Conservative Crisis and the Rule of law (Ithaca: Cornell University Press, 1960).Google Scholar

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30. There is evidence to suggest that the Court acted during these years to mollify congressional opposition. Every November since 1949, the Harvard Law Review has compiled Supreme Court cases with full opinions involving the government (both state and federal). They show that by 1965, Supreme Court decisions supporting the government had risen 14 percent over the 1963 figure. While the annual number of cases is large, ranging from 70 to over 100, the inclusion of state government, and the variety of issues involved, make this weak evidence. However, it is in the direction supportive of the effectiveness of Court-attacking.

31. While there was a good deal of opposition to the Court's apportionment decisions among officeholders, the public was rather oblivious to the issue.

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34. Beal v. Doe, 423 U.S. 438 (1977), Maher v. Roe, 432 U.S. 464 (1977), Poelker v. Doe, 432 U.S. 519 (1977).

35. Harris v. McRae, 448 U.S. 297 (1980).

36. By 1982, Supreme Court decisions supporting the government rose slightly more than 10% over the period's low point. See supra, note 30, particularly the caveat on interpreting this data.

37. See, generally, Murphy, Congress and the Court.

38. Cases include Pennsylvania v. Nelson, 350 U.S. 497 (1956)-sedition; Schware v. New Mexico, 353 U.S. 232 (1957), Konigsberg v. California, 353 U.S. 252 (1957)-bar exclusions; Jencks v. U.S., 353 U.S. 657 (1957)-access to government files.

39. 354 U.S. 178(1957).

40. 354 U.S. 234 (1957).

41. See, Steamer, Robert J., “Statesmanship or Craftsmanship: Current Conflict over the Supreme Court,” Western Political Quarterly 11 (1958): 265CrossRefGoogle Scholar; Lytle, Clifford M., “Congressional Response to Supreme Court Decisions in the Aftermath of the School Segregation Cases,” Journal of Public Law 12 (1963): 290.Google Scholar

42. For a fascinating account of the bill's history, see Murphy, Congress and the Court.

43. 360 U.S. 72 (1959).

44. 360 U.S. 109 (1959).

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50. 347 U.S. 483 (1954).

51. Pollak, Louis H., “The Supreme Court Under Fire,” Journal of Public Law 6 (1957): 428.Google Scholar

52. Cooper v. Aaron, 358 U.S. 1 (1958).Google Scholar

53. Goss v. Board of Education of Knoxville, 371 U.S. 683 (1963).Google Scholar

54. Southern Education Reporting Service, A Statistical Summary of School Segregation—Desegregation in the Southern and Border States (Nashville, TN: Southern Education Reporting Service, 1967), pp. 40–44.Google Scholar

55. For full development of this argument, see Rosenberg, Gerald N., The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991), chap. 3.Google Scholar

56. Wasby, et al. , Desegration from Brown to Alexander, p. 107.Google Scholar

57. The Court declined to hear any housing cases from 1953 to 1967. Some of its refusals had the effect of upholding segregation (e.g., Cohen v. Public Housing Authority, 358 U.S. 928 [1959]; Barnes v. City of Gadsden, 361 U.S. 915 [1959]). More generally, the refusal to hear Rice v. Sioux City Memorial Park Cemetery, 348 U.S. 88 (1954), after Brown, effectively upheld a cemetery's restrictive covenant limiting burial to Caucasians. In Dawly v. City of Norfolk, Virginia, 359 U.S. 935 (1959), refusal to hear the case left restrooms in a state courthouse segregated. Another denial of certiorari, In re Girard College Trusteeship, 357 U.S. 570 (1958), had the effect of allowing a segregated school administered by the state to remain segregated. And in Nairn v. Naim, 350 U.S. 891 (1955), 350 U.S. 985 (1956), the Court declined to hear an attack on state laws prohibiting inter-racial marriage. While the Court did issue numerous per curiam opinions striking down segregation laws, they were mostly ignored.

58. 354 U.S. 449 (1957).

59. 367 U.S. 643 (1961).

60. 372 U.S. 335 (1963).

61. 384 U.S. 436 (1966).

62. By 1959, decisions supporting the government had risen 14 percent over the lowest figure in the 1955–1959 Court-attack period. See supra, note 30, particularly the caveat on interpreting this data.

63. Cf., Lasser, William, The Limits of Judicial Power: The Supreme Court in American Politics (Chapel Hill, NC: University of North Carolina Press, 1988), p. 262Google Scholar, who argues that the Supreme Court has “always been largely invulnerable to political assault.” However, he never offers a definition of judicial independence, and at times his argument is contradictory.

64. 60 U.S. (19 How.) 393 (1857).