The Judicial Bookshelf

Abstract

The Judicial Bookshelf D. GRIER STEPHENSON, JR. Laments about federaljudges, Supreme Court Justices in particular, are nearly as old as the Republic. Those who say otherwise perhaps have either poor memories or a need to read more history. True, the Court has not been continuously caught up in strife, but controversies have occurred often enough to make Court-bashing a routine part of American political life. The Supreme Court’s first constitutional decision in Chisholm v. Georgia1 provoked such a fuss that critics succeeded in ratifying a constitutional amendment—the Eleventh— to overturn the ruling. Only a decade after Chisholm, in Marbury v. Madison, Chief Jus­ tice John Marshall reinforced the “province and dutyofthejudicial department, to saywhat the law is,”2 a claim that soon made the Court thejudge ofthe constitutional validity of state and national statutes and virtually guaranteed thattheBenchperiodicallywouldbe thrustinto the center of contention. This was true not only when the Justices negated legislative acts but sometimes even when they did not. McCulloch v. Maryland3 troubled many in 1819 and for some years af­ terward, not merely because the Court inval­ idated the state’s tax on the Second Bank of the United States, but because the Court also sustained the congressional statute that char­ teredthe Bank. Smoldering resentment against the Court later erupted in Congress in what became known as the Hayne-Webster debate, well in advance of the presidential elections of 1832 in which the Bank was a principal issue. As the Senate considered a resolution on public lands, Senator Robert Y. Hayne of South Carolina launched an oblique assault on section 25 of the Judiciary Act of 17894 by asserting the authority of a state to de­ clare unconstitutional a law that the Supreme Court had deemed constitutional. To Daniel Webster’s reply that the Court was properly the arbiter of the meaning of the Constitu­ tion, Senator Thomas Benton of Missouri de­ cried the results to which that theory led: “a despotic power over the States” and “ajudicial tyranny and oppression.”5 The on-again, offagain debates that stretched over five months in 1830 confirmed what one periodical had al­ ready observed: “There are two parties in the United States, most decidedly opposed to each other as to the rights, powers, and province of thejudiciary.” One “almost claims infallibility for the Judges, and would hedge them round 200 JOURNAL OF SUPREME COURT HISTORY about in such a manner that they cannot be reached by popular opinion at all”; the other “would subject them to the vacillations ofpop­ ular prejudice” and would “require... them to... interpret the Constitution according to the real or apparent expediency of things.”6 Another commentator acknowledged a “truth of fearful import” that attention to ideological leanings might even affect appointments to the Court: “[A]s a party is the off-spring ofour in­ stitutions, and always the heir apparent to the throne, men may be selected for this high of­ fice because they are known to be devoted to a great political party, and ready to become the willing instruments of its ambition or its vengeance... ”7 By 1893, concerns over an expandedjudi­ cial power were so widespread that Harvard’s James Bradley Thayer admonishedjudges not to “step into the shoes of the lawmaker.”8 Sixteen years later, Samuel Gompers railed against judicial intrusion into the American Federation of Labor’s dispute with the Buck’s Stove and Range Co.9—and implicitly dis­ puted Governor Charles Evans Hughes’s re­ cently uttered counterassertion10—by remind­ ing listeners thatthe Constitutionand ajudge’s interpretation of it were not necessarily the same: “1 still believe that the Constitution... is greater than any Judge.”11 Similar concerns were voiced with even greateremphasis during the Court-packing fight of 1937, and they sur­ faced periodically in later decades. Contem­ porary worries aboutjudicial excesses frankly pale in comparison to the serious Court­ curbing battles that were waged in the late 1950s,12 or to the Court-centered presidential campaign of 1968, when candidate Richard Nixon (among others) verbally chastised a ju­ diciary that had “gone too far in weakening the peace forces as against the criminal forces.”13 The presumptive Republican nominee accused the Supreme...