Judge-bashing is hardly new.

FDR had to fight for the New Deal

Campaigning against the federal courts is a familiar, even venerable, political sport. Recently, however, a number of politicians have raised the stakes by escalating their attacks upon the federal judiciary and even individual judges. Before the Terri Schiavo case, there were calls for Congress to impeach judges and to pass legislation that would strip the federal courts of jurisdiction in certain cases. After Schiavo’s death, Rep. Tom DeLay has continued to press his jeremiad against the federal judiciary.

The persistent attacks upon the federal courts have inspired an outburst of editorial concern over the fate of judicial independence. Three examples: On April 12, Prof. Erwin Chemerinsky of Duke Law School called the “conservative attack on the courts … truly frightening” and urged that it “be denounced by elected officials and academics across the political spectrum”; Ruth Marcus of the Washington Postthis week described the “current uproar” as “particularly worrisome”; and on April 5  Dahlia Lithwick warned of  “a cocktail of court-stripping legislation, impeachment threats, and term limits” to undermine the possibility of a “co-equal independent judiciary.”

Will the current campaign against the judiciary escalate? The key player in answering this question is President George W. Bush. Although the president has demonstrated his willingness to fight over the judiciary by renominating 20 individuals whose initial judicial bids failed, it is unlikely he will support the increasingly strident campaign against the federal courts. In fact, after Rep. DeLay’s remarks last week about federal courts that had “run amok,” the president told reporters over the weekend that he “believes in an independent judiciary.”

More important, however, history shows that the recent demagoguery over judges is neither particularly shocking nor rare. Indeed at least two prior attacks on the courts—one during the New Deal, the other in the late 1950s—suggest that an even more concerted political attack on the courts would, paradoxically, strengthen judicial independence and judicial review.

President Franklin Roosevelt’s clash with the Supreme Court over the New Deal started when the court began to invalidate his social welfare legislation in 1935. The stakes were raised in 1936 after the court struck down the Guffey Act in Carter v. Carter Coal, the Agricultural Adjustment Act in United States v. Butler, and New York’s minimum wage law in Morehead v. New York ex. rel. Tipaldo. The decisions were made by a closely divided court and prompted a political firestorm, including personal attacks upon the court far more aggressive than we have seen in recent days: Six justices were hanged in effigy in Ames, Iowa, after the court’s decision in Butler.

Roosevelt did not criticize the court during his campaign for re-election in 1936, and he easily defeated Alfred Landon. Immediately after that election, however, Roosevelt began to attack, first in his State of the Union Address and then in February 1937, when he unveiled his court-packing plan, which would have allowed him to add up to six justices to the Supreme Court, one for any justice over the age of 70 who did not retire.

The court-packing proposal failed for many reasons: first, because the court in 1937 made its “switch in time” and began to uphold New Deal legislation; then, Justice Willis Van Devanter resigned, opening a seat for a Roosevelt appointee; and—somewhat surprisingly—because many members of the Democratic Congress did not support it.

The New Deal enjoyed popular support, and the only obstacle to its implementation was the Supreme Court. Yet Roosevelt was unable to persuade the public or his party to support his effort to refashion the court because his plan was widely viewed as an effort to arrogate power. And, as New York University Law Prof. Barry Friedman has explained, the emergence of fascist dictatorships abroad prompted heightened public concern for judicial independence. Critics argued that the court-packing plan would give Roosevelt too much control over the Supreme Court; Sen. William King, for example, described the court as the nation’s “Ark of the Covenant” and warned that “impair[ing] the power and authority of the Supreme Court … [would] arouse grave apprehensions in the minds of all thoughtful Americans.” Such fears were further amplified by concern that Roosevelt’s plan would undermine the court’s institutional role of protecting individual liberty and constitutional rights.

The political backlash inspired by the court-packing plan should discourage President Bush from joining the current attack on the federal courts. Just as the Democratic Party controlled the electoral branches in 1937, Bush governs today with a Republican Congress. Any attempt to exercise more control over the federal courts would be viewed as overreaching.

And just as concerns about totalitarianism abroad in 1937 resulted in support for an independent—albeit unpopular—judiciary, so too must President Bush make domestic political decisions with an eye on his efforts to promote democracy in Iraq and the Middle East. The Bush administration’s campaign for democracy abroad includes support for an independent judiciary; it cannot afford the appearance of hypocrisy that would result from a domestic campaign against the federal courts.

The second instance of organized public court bashing is similarly illuminating. It occurred as part of the public outcry over the high court’s ruling in Brown v. Board of Education in 1954. In Brown, the Warren Court required desegregation of public schools in the South, over the objection of the majority of white citizens and the politicians they elected. The response to Brown by citizens opposed to the decision was especially virulent. Justice Hugo Black, for example, received hate mail, was practically exiled from the State of Alabama, and—as biographer Roger Newman has written—often wore a chest protector provided by the Secret Service when he visited Birmingham. After the court’s decision in Brown, Justice Black’s son, Hugo Jr., who lived in Birmingham, was hanged in effigy on his lawn.

Brown also inspired political resistance, including legislative efforts to curb the court. Such efforts failed, however, because President Dwight Eisenhower endorsed the decision and took steps to enforce it when challenged. The court may have been most vulnerable after the 1957 term, when it decided a number of domestic-security cases against the government and in favor of Communists and Communist sympathizers. Supporters of segregation in Congress teamed up with congressmen angry over the civil liberties decisions in an effort to strip the court of jurisdiction in cases raising security-related questions. But Eisenhower opposed the legislation, albeit tepidly, and ultimately it failed due to the opposition of Senate Majority Leader Lyndon Johnson. (With his eye on the presidency, Johnson was seeking to distinguish himself from his fellow Southerners.)

Today, proposing jurisdiction-stripping legislation is an especially popular sport for court-bashers. The lesson to be learned from the attacks upon the Warren Court during the Eisenhower era, however, is that unless President Bush is willing to endorse such efforts, they almost certainly will languish and then expire; they are nothing more than flares sent up to rally the right-wing base.

Last year, as Prof. Chemerinsky notes, there were two bills in the House of Representatives that would have stripped the federal courts, including the Supreme Court, of the authority to hear constitutional challenges to the federal Defense of Marriage Act or to the words “under God” in the Pledge of Allegiance. Those two bills passed the House of Representatives but went no further. Pending in the current Congress is another bill that would prevent any federal court, including the Supreme Court, from hearing cases involving the acknowledgment of God by state officials; under the bill, the exercise of jurisdiction in such a case would be an impeachable offense.

This bill, too, almost certainly will not become law. Why? Because for President Bush the cost of endorsing such measures is too high. After Rep. DeLay’s remarks last week, the president’s comments were clearly an effort to distance himself publicly from the vitriol of the current attack.

The failure of prior campaigns to curb the federal judiciary show that the more extreme the proposal, the less likely it is to succeed. Such legislative proposals detract from the real court-packing plan now pending in the Senate—the so-called “nuclear option,” which would eliminate the filibuster for judicial nominations. The debate over the nuclear option has been conducted almost exclusively within the Senate. Although President Bush set the stage by renominating 20 individuals, he otherwise has not actively participated in this debate either.

The failure of Roosevelt’s court-packing plan demonstrates that even the president is limited in what he can do to influence the decisions of the federal courts and the actions of the judges who staff them. The failure of Congress’s efforts to limit the jurisdiction of federal courts in response to the Warren Court decisions with which it disagreed shows that court-stripping is a congressional activity with more bark than bite. Today, more than ever, the Supreme Court continues to have the final say on even the most political legal disputes.

Even more telling has been the administration’s response to the Supreme Court’s decisions last summer rejecting the administration’s claim that its power to hold detainees classified as “enemy combatants” was not subject to judicial review. The war on terror is vital to the president, yet he did not criticize the court or otherwise seek to limit its power in such cases. Instead the Justice Department continues to litigate the interpretation of the court’s decisions in federal court. Which only serves to reaffirm that the ultimate decision maker, even as to the scope of the Supreme Court’s review power, will be the Supreme Court—as it has been since the New Deal.