“Government by Injunction,” Legal Elites, and the Making of the Modern Federal Courts

Abstract

The tendency of legal discourse to obscure the processes by which social and political forces shape the law’s development is well known, but the field of federal courts in American constitutional law may provide a particularly clear example of this phenomenon. According to conventional accounts, Congress’s authority to regulate the lower federal courts’ “jurisdiction”—generally understood to include their power to issue injunctions— has been a durable feature of American constitutional law since the founding. By contrast, the story I tell in this essay is one of change. During the nineteenth century and into the twentieth, many jurists considered the federal courts’ power to issue and enforce equitable decrees to be an essential, constitutionally endowed dimension of the judicial function. Charting the demise of that theory over the first four decades of the twentieth century, this essay highlights the roles of social movements and, especially, of legal elites in forging and canonizing a new understanding of judicial power, and in normalizing debate over “who decides” as a routine dimension of ideologically divisive socio-legal disagreements in American political life.