The year was 1937. Supreme Court Justice Owen Roberts had to decide which was more important: his intellectual integrity, or the integrity of the court as an institution. President Franklin Delano Roosevelt’s court-packing plan—which FDR billed as a measure to shore up the country’s “overworked” courts—had precipitated a showdown with the judiciary. No one doubted the plan’s true purpose was to strong-arm the justices into ruling in the president’s favor on his signature New Deal program. If the court as constituted didn’t start approving the president’s agenda voluntarily, he was going to add enough seats filled by handpicked appointees to force it into compliance. The question was whether the justices would yield to the threat.
For Justice Roberts’s more conservative colleagues—ominously dubbed “the Four Horsemen” by political opponents—the answer was a resounding no. Such a blatant assault on judicial independence was too much for them, the long-term viability of the court be damned. They’d sooner see the judicial branch implode than give an inch in the face of what they saw as executive tyranny. On the other side, it was clear that the court’s liberal minority—the so-called “Three Musketeers”—would continue supporting FDR’s New Deal regardless of what happened in the court-packing fight. But Roberts, a moderate former prosecutor appointed by Calvin Coolidge, was in neither camp. So the role of saving the court fell to him and, to a lesser extent, Chief Justice Charles Evans Hughes.
In the end, Roberts came through. Despite the blow his reputation would take, he began to side with the administration in virtually all the cases that came before the court, often reversing votes he had cast just a few terms before. The message was clear: The court would no longer get in the president’s way. And it worked. Despite the Democratic majority in Congress’s usual impulse to rubber-stamp anything Roosevelt advanced, Congress took heed of the court’s change of heart and killed the court-packing bill. The crisis was over.
But why did it arise in the first place?
Things hadn’t always been so strained between the president and the courts. It was something of an open question at the founding whether the judiciary even had the power to assess the constitutionality of the other branches’ acts. Marbury v. Madison answered it, with Chief Justice John Marshall pronouncing definitively that the court was the final arbiter of constitutional meaning in our governmental system.
The result was a relatively stable power equilibrium among the three branches. The elected branches’ role in developing the constitutional landscape had always been clear—Congress evaluated the constitutionality of a bill as a necessary part of the legislative process, and the president exercised the same prerogative through use of the veto power. Marburysimply established that the courts were equal participants in the process; that whenever a law was challenged, they too had to pass judgment on its constitutionality before it could be enforced.
Of course, there were a few ugly battles along the way. Among the worst was in 1832, when the court (again under Chief Justice Marshall) issued a decision ordering the state of Georgia to respect the rights of native tribes. Andrew Jackson, who, like Roosevelt, expanded the role and power of the presidency well beyond that of his predecessors, did not appreciate the court’s decision. He infamously declared: “John Marshall has made his decision. Now let him enforce it.” (The citizens and government of Georgia continued their encroachment despite laws and treaties mandating otherwise. And true to his word, Jackson refused to intervene.)
But Jackson’s defiance was an outlier. In the decades that followed, the judiciary’s prerogative to evaluate and halt the elected braches’ acts under the Constitution was increasingly accepted as a fundamental American norm. Judicial review (as the doctrine was called) became virtually synonymous with the rule of law, and before long it was a solid fixture in our constitutional landscape.
Problems began to arise later in the nineteenth century, when the court found occasion to exercise its awesome power with increasing frequency. This tendency culminated in the ignominious Lochner Era, the name given the period in which the court visibly and aggressively invalidated a flurry of state and federal laws on dubious constitutional grounds.
The Lochner decision itself exemplified the era’s folly. In that decision, the court held that a New York law capping bakers’ work hours violated the Fourteenth Amendment. The court reasoned that there was an unwritten “liberty of contract” lurking in the Constitution’s Due Process Clause, and that the state had impermissibly infringed this liberty by prohibiting bakers from agreeing with their employers to work the number of hours they wanted. The court’s analysis was sound as a statement of laissez-faire economics, but its grounding in constitutional law was tenuous at best.
Nevertheless, “liberty of contract” and related substantive due process doctrines, as they became known, formed the basis for many of the anti-New Deal decisions that stoked Roosevelt’s wrath. Each time the court struck down one of FDR’s initiatives, his Democratic majority in Congress would pass a new one, often in a way that at least attempted to address the constitutional concerns the court articulated. But the court would simply strike the new iterations down again. Roosevelt’s popular New Deal program seemed permanently stalled.
Frustrated presidential hopes are an inherent and healthy byproduct of our governmental system, but no president is likely to endure those frustrations for long when they stem from unprincipled exercises of judicial power. As Roosevelt watched the court render increasingly political decisions grounded more in philosophy than constitutional text, he concluded that only similarly extreme countermeasures would suffice in his power struggle with the court. He knew his court-packing plan was radical, but he and his allies saw it as necessary to affirm that America was still a democracy where elections mattered. At a minimum, the plan would remind the justices that the Constitution gave the elected branches near limitless power over the courts, a power they were willing to exercise if need be.
Not that Roosevelt’s response was legitimate. It was a cynical and reckless assault on the separation of powers. But so too was the court’s essentially arrogating to itself the role of national policymaker. Judicial review is only viable so long as Americans and the officials they elect respect the broader constitutional system sufficiently to overcome their inherent distrust of nondemocratic exercises of power. Nothing will erode that respect faster than the perception that the judiciary is merely another political actor. So, while Roosevelt’s court-packing proposal wasn’t justified, one can understand his instinct to fight fire with fire.
Roosevelt’s initiative never made it into law, but that was anything but a foregone conclusion, and the lessons from the entire episode remain critically relevant today. The election of Donald Trump has engendered a paroxysm of court activity unparalleled in recent memory. Some of this results from Trump pushing the boundaries on executive power and is surely legitimate. But much of it is of a different character. Political opponents have seized on Trump’s unlikely electoral victory to galvanize their own supporters, using “resistance” to the president as their unifying battle cry. This resistance is of the undifferentiated variety and takes multiple forms, but the principal battleground its architects have chosen to wage this war on Trump is the courts.
That should set off immediate alarm bells. The role of the judiciary in our constitutional order is to resolve individual disputes through impartial application of the law. It is manifestly not to serve as a conduit for political opposition. American law abounds in doctrinal precedents, rules, and norms that exist precisely to prevent the courts from being used as platforms for political advocacy. It’s the courts’ duty when confronted with attempts to thrust them into the political fray to invoke these doctrines and turn away would-be judicial weaponizers.
Frustratingly, courts enlisted into the war on Trump have done the opposite. The president’s opponents have enjoyed a nearly unbroken string of victories in cases that wouldn’t have made it off the ground under almost any other circumstances. These are not cases where individual people have looked to the courts to shield them from improper acts of government. They’re a special species of “impact litigation” that politicians, government entities and political interest groups orchestrate on behalf of their constituents. So we see state attorneys general, university presidents and other public officials joining litigation mainstays like the Southern Poverty Law Center and ACLU in bringing lawsuits on behalf of broadly defined groups to vindicate the social interests they view Trump’s policies as undermining.
The first and most visible of these was the challenge to Trump’s “travel ban.” Leaving questions about the wisdom or equity of Trump’s executive order to one side, it’s a rudimentary separation-of-powers principle that Congress and the president have exclusive authority over immigration policy. Deciding who among the world’s culturally and ideologically diverse population would best fit in our national polity is a complex and politically fraught undertaking. It isn’t one that lends itself to judicial oversight. So, while the First Amendment does (and should) categorically prohibit the government from treating its citizens differently based on what they believe, it does not restrict policymakers from excluding foreigners whose belief systems may be incompatible with our pluralistic society. And it shouldn’t make a difference if those belief systems derive from religion as opposed to some other epistemological source.
Does that mean Congress and the president should ban the members of any particular religious group from immigrating to the United States? Certainly not. But that’s a separate question from whether the Constitution prohibits them from doing so. Whether Trump’s travel order was in fact a noxious “Muslim ban,” then, is beside the point, because allegations of religious animus cannot change the way our Constitution allocates power over immigration.
But judges are human beings who exist in the same zeitgeist as the rest of us, and turning down the opportunity to right a perceived wrong based on abstract principles like “separation of powers” is a very hard thing to do—especially when the media and the rest of the establishment elite who know little about those things are cheering you on in the opposite direction. So far, courts have not proved up to that task. Most to consider the travel ban have found grounds for invalidating it, generally with little more than a nod to the idea that the subject matter might be outside their constitutional purview. It was only when the Supreme Court finally passed on the question that separation of powers was successfully invoked, and even there, four of the court’s justices dissented.
In the same vein are recent decisions invalidating the president’s decision to rescind the Obama administration’s DACA program, which allowed certain people brought to the United States unlawfully as children to avoid removal despite their lack of immigration status. Whether the Obama policy was lawful from the outset was (and is) a close constitutional question. If, as many argued, DACA was an end-run around Congress meant to create new immigration law, it was clearly unlawful. But if, as the Obama administration said in defending the program, it was nothing more than a decision about how to prioritize immigration enforcement with the executive’s limited resources, it could likely pass constitutional muster.
Either way, one thing is clear—after DACA, the next (or even the same) chief executive could decide to realign enforcement priorities in a different way. That’s the thing about presidential policies based on administrative fiat rather than law. They’re necessarily ephemeral. If DACA was lawful, so too necessarily was its rescission. There’s just no way to evade that logical imperative. Yet the challenges rolled in, with several judges agreeing that the president isn’t permitted to enforce the law as it is quite literally written.
The causes proponents are trying to advance with these “resistance” cases are undoubtedly worthwhile. Nowhere is this clearer than with DACA, whose beneficiaries are as much a part of our national fiber as any native-born American. But in a constitutional democracy, political problems require political solutions—even when those problems exact an unfair toll on a sympathetic population. Because once you grant life-tenured judges political power in the effort to solve them, there’s no principled basis for limiting its exercise to particular cases. Like supplicants to Mount Olympus, politicians will turn inexorably to the new priest kings of law to veto any policy the politicians don’t like from on high.
We see this happening already. When Congress recently changed the tax code to eliminate federal exemptions for state and local taxes (which benefitted mostly high-income residents in left-leaning states), Democratic opponents did not limit their opposition to the political arena. They made statements like this:
The idea that the Constitution somehow prohibits Congress from deciding what income to exempt from federal taxation and what income not to is pretty obviously false. The complaint opponents filed in their follow-up lawsuit, abounding as it is with enough aphorisms and atextual platitudes to make a political speechwriter blush, confirms the frivolity of their argument. But there’s a reason why Governor Cuomo’s first instinct was to invoke the Constitution and the courts in opposition to this particular tax policy. It’s same reason why laissez-faire proponents sought judicial invalidation of New York’s law about baker hours in 1913—because the courts had shown themselves only too eager to serve as conscripts in the battle those political actors were waging.
Justice Owen Roberts’s humiliating but understandable flip-flop saved the court from immediate annihilation, but the court-packing saga was not without adverse effects on our system of government. In the decades that followed, the court overcorrected for its Lochner Era abuses by slingshotting itself to the other extreme: a jurisprudence of judicial abnegation and hyper-deference. The result was a court that largely receded from the constitutional scene, letting Congress and the president reign supreme. Even when the Constitution placed clear limitations on congressional or executive power, the court showed itself unwilling to step in for fear that too strong an exhibition of authority might evoke the infamy of Lochner and the court-packing threat it engendered.
So while the court’s capitulation to Roosevelt cleared the way for the New Deal initiatives that many liberals at the time cherished, their immediate victory came at a price. The most significant products of the court’s timidity during the period that followed would surely make any true liberal cringe. These include Korematsu v. United States, which upheld Roosevelt’s internment of American citizens during World War II; United States v. Curtis-Wright Export Corp., which upheld Congress’s delegation to the president of near limitless authority to enact the policies of his choosing in the name of national security; and Wickard v. Filburn, which on its face simply upheld a federal regulation of wheat storage but in the process promulgated a theory of congressional power so broad that it opened the gates to the massive federalization and expansion of criminal law that followed and hasn’t stopped since.
These decisions weren’t aberrations. They were perfect representations of what happens when judicial independence is compromised: in a word, tyranny.