American politicians confront the court : opposition politics and changing responses to judicial power

Politicians have long questioned, or even been openly hostile to, the legitimacy of judicial authority, but that authority seems to have become more secure over time. What explains the recurrence of hostilities and yet the security of judicial power? Addressing this question anew, Stephen Engel points to the gradual acceptance of dissenting views of the Constitution, that is, the legitimacy and loyalty of stable opposition. Politicians' changing perception of the threat posed by opposition influenced how manipulations of judicial authority took shape. As politicians' views toward opposition changed over time, their approach toward the judiciary - where opposition could become entrenched - changed as well. Once opposition was no longer seen as a fundamental threat to the Constitution's survival, and multiple constitutional interpretations were considered legitimate, judicial power could be construed less as the seat of an illegitimate opposition and more as an instrument to achieve political ends. Politicians were more likely to harness it to serve their aims than to openly undermine its legitimacy. In short, conflicts between the elected branches and the judiciary have not subsided. They have changed form. They have shifted from measures that undermine judicial legitimacy to measures that harness judicial power for political ends. Engel's book brings our understanding of these manipulations into line with other developments, such as the establishment of political parties, the acceptance of loyal opposition, the development of different modes of constitutional interpretation, and the emergence of rights-based pluralism Cambridge eText Contents 6 Acknowledgments 8 Introduction Had Americans “Stopped Understanding about the Three Branches”? 12 I. Courts, Parties, and the Politics of Opposition 15 II. Moving Forward 22 PART I POLITICAL DEVELOPMENT AND ELECTED-BRANCH RELATIONS WITH THE JUDICIARY 28 1 Beyond the Countermajoritarian Difficulty 30 I. The Countermajoritarian Difficulty and Four Responses 31 I.a. Dahl’s Response: Countermajoritarianism Is Short-Lived 33 I.b. Strategic Interest: Politicians Want Strong Judiciaries 35 I.c. A Norm of Deference: An Account of Gradual Change over Time 38 II. Manipulating the Court: Undermining Judicial Legitimacy or Harnessing Judicial Power 42 III. Mapping Legislation: Patterns Over Time 47 IV. Conclusion 50 Appendix: Proposed Congressional Legislation Involving the Judiciary Disaggregated by Type 51 2 A Developmental Theory of Politicians’ Confrontations with Judicial Authority 54 I. The Presumption of Judicial Neutrality and Persistence of Anti-Judicial Hostilities 57 II. Opposition Legitimacy and Loyalty as Manifestations of Political Idiom 65 III. Multiple Constitutional Visions and the Rise of a Majoritarian Court 75 IV. Conclusion 78 PART II HOSTILITY TO JUDICIAL AUTHORITY AND THE POLITICAL IDIOM OF CIVIC REPUBLICANISM 80 3 In Support of Unified Governance: Undermining the Court in an Anti-Party Age 82 I. Judges as Representatives of Popular Sovereignty 84 I.a. Accepting Judicial Review, Presuming Unity, and Fearing Consolidation 86 I.b. Judges’ Early Steps to Secure Judicial Review 91 I.c. Judicial Review as Discovering the Act of Popular Sovereignty 95 II. An Age of Party Illegitimacy 98 II.a. Not Just Anti-Partisan, but Anti-Party 99 II.b. An Inherited Political Tradition Fearful of Open, Stable, and Permanent Opposition 103 II.c. Sedition and the Kentucky Resolution: Hostility to Court-Centered Interpretation 107 II.d. 1800: A Peaceful Transition but No Acceptance of Opposition Legitimacy or Loyalty 111 III. The Jeffersonian Assault on the Judiciary 115 III.a. Framing the Reform of 1801: Civil Stability versus Party Threat 116 III.b. The Justices’ Failed Strike Plan and Their Concession 120 IV. Impeaching Justice Samuel Chase and Neutrality as a Second-Best Solution 124 IV.a. Impeachment as Removal of Illegitimate Opposition 125 IV.b. Samuel Chase on Sedition and the Illegitimacy of Opposition 130 IV.c. The Chase Impeachment: Toward Judicial Independence as Political Neutrality 133 V. Conclusion 140 4 Party against Partisanship: Single-Party Constitutionalism and the Quest for Regime Unity 142 I. Unease with Opposition and Jacksonian Views of Judicial Authority 145 I.b. Van Buren’s Democratic Party as Permanent Constitutional Majority 149 I.c. Van Buren’s Party-based Justification of Jackson’s Relations with the Judiciary 156 II. The Anti-Partyist Debate to Maintain Judicial Neutrality 162 II.a. Judicial Reform: The Jeffersonian Construction of Political Neutrality as the New Paradigm 164 II.b. Failure to Repeal Section 25: Securing Federal Supremacy not the Court 170 II.c. Jacksonian Bench Expansion: Was It Harnessing Judicial Power? 173 III. Judges as Disloyal Opposition: Van Buren on the Dred Scott Case 174 IV. Conclusion 178 5 “As Party Exigencies Require”: Republicanism, Loyal Opposition, and the Emerging Legitimacy of Multiple Constitutional Visions 181 I. Republican Aspirations to Single-Party Constitutionalism 183 I.a. The Slave Power Conspiracy and the Constitutional Idea of the Republican Party 183 I.b. The Southern Perspective: The Republican Conspiracy to Undermine the Constitution 188 II. Lincoln: Popular Sovereignty, Constitutional Silence, and Minimal Constraint 191 II.a. Holding Dred Scott’s Meaning at Bay by Embracing the Opposition’s Right to Rule 192 II.b. Presidential Constitutional Interpretive Authority during the Civil War 201 III. Manifestations of Congressional Republican Fears of Disloyal Opposition 203 III.a. The Slave Power, Kansas, and Broadening Republican Appeal 204 III.b. Fear of a Returning Slave Power: Suppressing Representation and Impeachment after Civil War 206 III.c. Judiciary as Slave Power: Removing Southern Opposition during and after the Civil War 210 IV. Congressional Republican Harnessing of Judicial Power 215 IV.a. The Judiciary as a Policy Tool: Stripping Jurisdiction but Denying the Precedent 216 IV.b. Judiciary as a Policy Tool: Judicial Expansion as Partisan Entrenchment 223 IV.c. Reprise: Republicans Neither Fully Attack Nor Fully Embrace Judicial Power 228 V. Conclusion 230 PART III HARNESSING JUDICIAL POWER AND THE POLITICAL IDIOM OF LIBERAL PLURALISM 234 6 Clashing Progressive Solutions to the Political Problem of Judicial Power 236 I. Populism and the Lawyer Community’s Response 240 I.a. Weaver’s and Bryan’s Lincolnian Refrains 241 I.b. Responding to the Populist Threat: Lawyers Re-Imagine Marbury to Strengthen Judicial Review 246 II. Constitution as Obstacle or Instrument: Progressive Confusion about Courts 247 II.a. Progressive Jeffersonianism: Anti-Partyism, Judicial Legitimacy, and Judicial Recall 249 II.b. The Progressives’ Lincolnian Refrain: Living Constitutionalism and Decision Recall 253 II.c. Working with the System: Women’s Legislation and Substantive Due Process 260 III. Congressional and Presidential Harnessing during the Progressive Era 264 III.a. Congressional Jurisdiction-Stripping and Ambiguous Statutory Language 264 III.a.1. Purposive Ambiguity of the Clayton Act. 266 III.a.2. The Jurisdiction-Stripping Redundancy of the Norris-LaGuardia Act. 270 III.b. FDR’s Plan: Fears of Dictatorship and Evidence of Longer Term Time Horizons 272 IV. Recasting its Purpose: The Court’s Lincolnian Refrain in Blaisdell and the Pluralism of Adkins and Carolene 283 IV.a. Blaisdell: Living Constitutionalism and the Eclipse of Nineteenth-Century Textual Originalism 285 IV.b. Carolene: The Court’s Adjustment to the Political Assumptions of Liberal Pluralism 288 V. Conclusion 292 7 A Polity Fully Developed for Harnessing (I) Living Constitutionalism and the Politicization of Judicial Appointment 296 I. The Near Misses of Jurisdiction-Stripping in the 1950s 299 I.a. Isolated Southern Reactions to Brown v. Board of Education 300 I.b. Forging an Anti-Court Coalition beyond the Segregated South 303 I.c. Court-Curbing Legislation in the 85th Congress 307 II. Nixon: Judicial Impeachment, Stripping Jurisdiction, and Appointment Power 313 II.a. Nixonian Harnessing: Judicial Appointment, Impeachments, and the Southern Strategy 314 II.b. Fungible Legislation and Attacking Integrative School Busing Schemes 320 II.c. Passing Redundant, Ambiguous, and Symbolic Court-Curbing Legislation 328 III. Appointment and Obstruction: Maintaining Vacancies to Harness Judicial Power 334 III.a. Jimmy Carter Politicizes the Lower Federal Judiciary 335 III.b. Obstruction: Majority Party Committee Action and Minority Party Filibusters 340 IV. Conclusion 345 8 A Polity Fully Developed for Harnessing (II) A Conservative Insurgency Innovates and a Self-Styled Majoritarian Court Responds 348 I. Originalism: Reviving an Interpretive Method in order to Harness Judicial Power 351 II. Reagan’s Legacy: the G.W. Bush Administration’s Harnessing of Judicial Power 358 II.a. Signing Statements as Tools to Harness Judicial Power 359 II.b. Jurisdiction-Stripping to Win the War on Terror: A Case of Judicial Supremacy? 365 III. The Majoritarian Court 373 III.a. Three Examples of the Majoritarian Court 374 III.b. The Majortiarian Court and the Permanent Campaign against Judges 378 IV. Conclusion 380 Conclusion On the Return of Opposition Illegitimacy and the Prospects for New Development 383 I. The Themes of this Book and the Prospects for Change 386 II. Taking Responsibility for a Politicized Court 392 Index 396 978-0-521-19295-8,Hardback,9780521153980,Paperback Content: Beyond the countermajoritarian difficulty -- A developmental theory of politician's confrontations with judicial authority -- In support of Unified Governance : undermining the court in an anti-party age -- Party against partisanship : single-party constitutionalism and the quest for regime unity -- "As party exigencies require" : republicanism, loyal opposition, and the emerging legitimacy of multiple constitutional visions -- Clashing progressive solutions to the political problem of judicial power -- A polity fully-developed for harnessing (I) : living constitutionalism and the politicization of judicial appointment -- A polity fully-developed for harnessing (II) : a conservative insurgency and a self-stylized majoritarian court responds. When judicial power appears to remain secure, what explains the recurrence of hostilities toward it? Addressing this question anew, Stephen Engel points to the gradual acceptance of dissenting views of the Constitution. This view of such a behavioral and ideational shift explains politicians' varying tactics to manipulate judicial authority.