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Jedediah Purdy @JedediahSPurdy
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Thread on courts & poitics: In 1805, Chief Justice John Marshall, whose partisan Federalist colleague Samuel Chase was facing impeachment by Jeffersonians, wrote Chase a letter proposing "appellate jurisdiction in the legislature"--i.e., letting Congress reverse the Supreme Court
2/ It's remarkable because Marshall had recently established the practice of constitutional review in the famous Marbury v. Madison (1803). Here he was willing to walk back judicial supremacy itself in the face of political opposition.
3/ Such renegotiations have been regular occurrences. Lincoln, addressing the Dred Scott opinion in his inaugural (& facing Justice Taney, who had written it & had sworn him in," said that if the decision settled the matter, "the people will have ceased to be their own rulers"
4/ Lincoln appointed Salmon Chase as Chief Justice chief because "we wish for a Chief Justice who will sustain what has been done in regard to emancipation and the legal tenders." In 1863, the Court's numbers went up to 10, securing support for Lincoln's policies.
5/ It's not just in time of war. In 1924, the great Progressive Sen. R. La Follette (WI) proposed a constitutional amendment authorizing Congressional override of Supreme Court opinions striking down statutes. Felix Frankfurter defended the spirit of the proposal ...
6/ (It was not his style to tie himself down to someone else's specifics), approving recalling Teddy Roosevelt's earlier Progressive attack on laissez-faire courts: "I may not know much about law, but I do know one can put the fear of God into judges."
7/ Frankfurter went on, "The 'fear of God' was needed to make itself felt on the bench in 1912. The 'fear of God' very much needs to make itself felt in 1924... [in the Lochner period] we have never had a more irresponsible ... [Supreme] court."
8/ That is, there wasn't just "a New Deal crisis": There were crises all down the line as reformers struggled against the Court, and they were intermittently expressed by proposals to reform the judiciary itself, as well as other forms of political pressure.
9/ We know of course about FDR's "court packing" plan. It's sometimes downplayed that he was very explicit about the stakes (despite a little legerdemain about helping the poor judges get their work done by adding younger colleagues).
10/ Discussing the plan in his radio address of 3/9/1937, he said, "there is no basis for the claim made by some members of the Court that something in the Constitution has compelled them regretfully to thwart the will of the people."
11/ It was necessary, he argued, to change the Court "to save the Constitution from the Court"--save it as a document of democratic self-rule. The stakes could not have been clearer.
12/ Less than a month earlier, an amendment was introduced in both houses permitting a Congressional override of decisions invalidating statutes--the same measure Marshall had been willing to accept and La Follette had advanced with Frankfurter's cautious support.
13/ Robert Jackson (such a rule of law man that he was not long after the prosecutor at Nuremberg) vigorously defended Roosevelt in a book published the year he went on the Court.
13/ In short, when we talk about the Court and crises of legitimacy, we need to appreciate that there is a long tradition, including among candid justices and lawyers who are very serious about the law, of challenging the metes & bounds of the Supreme Court's power ...
14/ ... to say what the Constitution means. This has always been partisan but also involved in fights over principle, and it has been a fight among people who believe in law, constitutionality, and adjudication. As it is today.
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