Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court

by James Macgregor Burns

  Still, it was not enough that the people were fragmented. As Madison explained in another Federalist essay, “In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself.” To achieve this self-control in government, it must be divided as well, its powers separated among executive, legislative, and judicial branches that would constitute a permanent check on one another. President, senators in the elite upper house of Congress, and representatives in the popular lower house would be elected with such different and opposing constituencies as to guarantee conflict among and within the branches. The president was given a partial veto over Congress; Congress could override a presidential veto; and the House and Senate could veto each other.

  That much was clear. What was not at all clear was the place of the judicial branch in the system of checks and balances. The Constitution authorized Congress to establish “one supreme Court,” without fixing the number of judges to sit on it. That was left to the discretion of Congress—and until 1869, when the court’s membership was set enduringly at nine, seats on the bench came and went as the party in control of Congress rewarded friends and punished enemies. But as to the court’s role in the new government, the bare words of the Constitution’s Article III gave limited clues: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State,” and so on. Indeed, the very design of the new Constitution opened a host of such issues and controversies that seemed to cry out for adjudication, most notably the exact boundaries of power in the intricate scheme of checks and balances—among the three federal branches and between them and the states. Some constitutional provisions were spelled out in precise detail; others were left vague to evade controversy on divisive issues or to allow flexibility when the document’s dry words came into living practice. But when that happened, when the inevitable controversies arose, who was to determine, authoritatively, finally, what was constitutional—within the charter’s bounds—and what was not?

  TO FOLLOW the debates at the constitutional convention in Philadelphia’s State House in the summer of 1787 through the diaries of Madison and other participants is to witness an extraordinary act of collective leadership. The fifty-five delegates were serious, strong-minded men, experienced both in waging a revolution and in building polities. They were meeting daily under almost intolerable conditions, alternating between heated debates in the lifeless air of the convention hall, its windows shut for privacy, and nights in stifling boardinghouses.

  With George Washington augustly presiding, the debates revealed the delegates’ obsession not only with empowering a new government, but with controlling it. One example was the clash between two future justices of the Supreme Court over how judges of the “National Judiciary” were to be chosen. To a proposal that Congress should fill judicial positions, James Wilson, a delegate from Pennsylvania, spoke for the common wariness of overweening legislative power—that “intrigue, partiality, and concealment were the necessary consequences.” Instead, he argued, the appointment power should go to a “single, responsible person”—the president. South Carolina’s John Rutledge objected that “the people will think we are leaning too much towards Monarchy.” Then the irrepressible Benjamin Franklin lightened the mood by suggesting that they adopt the “Scotch mode” of picking judges—by lawyers, “who always selected the ablest of the profession in order to get rid of him, and share his practice among themselves.” In the end, as so often, the Framers compromised for the sake of balance and caution: federal judges would be nominated by the president, subject to Senate confirmation.

  Because it touched on the vital division of powers, the appointment of judges received extensive debate. This was not the case with another constitutional provision that would have huge implications for judicial power—that judges should “hold their Offices during good Behavior,” removable only by the cumbersome process of impeachment. Experience in the states with what James Wilson called “the servile dependence of the judges” who bent to the will of the elected branches made it obvious to the Framers that federal judges must be insulated from political pressures and manipulations that would endanger, said Wilson, “the liberty and property of the citizen.” But life tenure, as a leading critic of the Constitution who wrote under the pen-name “Brutus” would be quick to note, made judges “independent of the people, of the legislature, and of every power under heaven.” Life tenure was an English practice, but in England, Brutus pointed out, it was designed to protect judges from a hereditary monarch who also had life tenure and therefore “much stronger inducements to increase the prerogatives of his office than those who hold their offices for stated periods.” Moreover, the British House of Lords served as an ultimate, extrajudicial appeals court, while the judgments of the American Supreme Court would be “final and irreversible, for there is no court above them to which appeals can lie.” But with scarcely a word of debate among the delegates, their Constitution granted unelected federal judges life tenure. That served as a check on the other branches, which might otherwise control them, but it also shielded them from the accountability to citizens that was central to republican theory and to which the other branches of the government were subject.

  The powers that those judges would wield—over the states and the political branches of the federal government—remained to be clarified. Though James Madison considered it “absolutely necessary to a perfect system” of national power, a congressional veto over state laws roused widespread opposition in the convention. Rather than a legislative veto, the Framers adopted the “supremacy clause” that established the federal Constitution as “the supreme Law of the Land,” binding on the states. This seemed to imply some form of judicial review of state laws by federal courts. After the convention, Virginia delegate George Mason would charge that “the Judiciary of the United States is so constructed and extended, as to absorb and destroy the Judiciaries of the several States.” James Iredell of North Carolina, a future justice of the Supreme Court, replied that federal courts would have no jurisdiction “but where the Union is in some measure concerned.” Still, Iredell acknowledged that the “construction of this authority” was undefined. At the convention itself, the role of the Supreme Court in relation to the states was not debated or spelled out.

  Even more glaring was the absence of debate—and decision—on the powers of the judiciary over the laws of the federal government. Would the Supreme Court have a final, unchallengeable authority to veto acts of Congress it disapproved of? Few delegates even expressed an opinion on the subject, and when they did, it was mainly in connection with one of the convention’s great preoccupations: preventing the legislative power from “swallowing up all the other powers.” How would “unwise and unjust measures” be blocked from becoming law? Again and again, James Madison and others proposed that the president and the justices of the Supreme Court be united in a “Council of revision” with “authority to examine every act” of Congress and veto laws they deemed unsound. Opponents of the Council worried that it would grant the judiciary an “improper mixture of powers.” “In some States,” Elbridge Gerry of Massachusetts noted, “the Judges had actually set aside laws as being against the Constitution,” but “it was quite foreign from the nature of the office to make them judges of the policy of public measures” as well.

  While the Council of Revision was repeatedly rejected, few delegates explicitly endorsed or opposed a judicial veto over legislation. Maryland’s John Mercer “disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be unc
ontroulable.” John Dickinson of Delaware echoed Mercer, rejecting “the power of the Judges to set aside the law,” and warning, presciently, that the judiciary might become “by degrees, the lawgiver.” But these comments provoked no debate over judicial power; no delegate leapt to defend the principle of judicial supremacy, no one moved to have it inscribed in the Constitution. Debate at once resumed on the doomed Council of Revision, until John Rutledge finally interrupted to complain of “the tediousness of the proceedings.”

  DID THE DELEGATES simply assume that the nation’s highest court would exercise judicial supremacy? In years to come, as political leaders, scholars, and judges themselves struggled to reconcile what the Supreme Court had become with the Founders’ intentions, some claimed to find in the convention’s scattered references to judicial power over the laws of Congress proof that the delegates simply took for granted that the Supreme Court would exercise absolute authority over the Constitution—that by judicial review, the Founders meant more than a check on manifestly unconstitutional measures or on encroachments into the judiciary’s own sphere, that they expected the Supreme Court to hold a monopoly on constitutional interpretation with the unlimited power to nullify the acts of the people—that, in short, they intended to make the court supreme in all matters constitutional. An early legal scholar, James Kent, argued in 1794 that the “interpretation or construction of the Constitution” was not a political but a “JUDICIAL act.” Kent’s own political views—most notably, a fear of popular rule—led him to conclude that the Framers had organized the courts “with peculiar advantages to exempt them from the baneful influence of Faction,” making the judiciary the government’s ultimate bulwark against an unruly majority of the people.

  Over a century later, economic historian Charles Beard similarly saw the Framers as determined to frustrate popular rule in order to safeguard “the rights of private property against any levelling tendencies on the part of the propertyless masses.” They empowered a judiciary “removed from direct contact with popular electorates,” Beard claimed, to “control” legislation and guard the wealth and power of the propertied elite. In 1892, even as the Supreme Court was consistently knocking down laws that would regulate huge corporations or empower workers, a president of the American Bar Association would insist that, with the establishment of judicial review at the Founding, “the people by an unprecedented act of wisdom” had “effectually protected themselves against themselves.”

  But there is no proof of intentions such as these in the Constitution or in the convention’s records. In the absence of proof, defenders of judicial supremacy have pointed to the colonial calls for American courts to defy acts of the British Parliament as evidence of what was in the minds of the Framers—never mind that this was a weapon forged in the struggle for independence. They have pointed to the emergence of judicial review in some states after the revolution, though the precedents were ambiguous and received scarcely a mention at the convention. They have pointed to the arguments of opponents like Brutus that the Supreme Court “would be exalted above all other power in the government, and subject to no controul.” Never mind that Brutus was writing prophetically of what he feared the court might become, not of what the Framers intended it to be. They have pointed to Alexander Hamilton’s answer to Brutus, his vigorous defense of judicial review as essential to keeping Congress “within the limits assigned to their authority.” But Hamilton dismissed fears of judicial supremacy over the legislature as a phantom. The judiciary was the “weakest” branch, Hamilton wrote, that could “never attack with success either of the other two.”

  The delegates were not in Philadelphia to practice constitution-making by omission. They were all practical men—lawyers, politicians, businessmen, state leaders. If they had favored something as radical as judicial supremacy, they would have argued for it at the convention and inserted it in the great charter.

  Indeed, a plan for judicial supremacy would have run counter to the Framers’ basic constitutional strategy. Under their checks and balances doctrine, no department was to be supreme. Each was to check and balance the others, using the tools provided by the Constitution. If that failed, if one branch overpowered the others, the system would lose its mooring in republican principles. One eminent authority on the Framers’ intent, James Madison, doubted whether the Supreme Court could hold its own in the separated system—too weak to resist the “dangerous encroachments” of the states and, as his persistence in advocating the Council of Revision indicated, too weak to check Congress. But neither was Madison willing to grant the court supremacy over the Constitution, which had, he pointed out, no provision “for the case of a disagreement in expounding” it. As he noted in 1788, after Congress passed a law and the president signed it, the court was last in giving its interpretation; it could, therefore, stamp the law “with its final character.” But this was an accident of the lawmaking process; it did not mean that the Supreme Court was “paramount” to the legislature, “which was never intended, and can never be proper.”

  In the debate over the Framers’ intentions regarding judicial supremacy, the answer is clear. The Framers made no general grant of a judicial power to invalidate laws passed by Congress and signed by the president. They made no grant to the Supreme Court of supremacy over the Constitution or the other branches of the federal government.

  LOYALT Y TO the new Constitution and to his great idea that the United States must be more than a loose confederacy of states were George Washington’s foremost criteria for appointments to what he called “the chief Pillar” of the exquisite balance of powers in the federal system. He sought men who had been fellow revolutionary soldiers, public servants, and statesmen. John Rutledge, an associate justice who served briefly as John Jay’s successor as chief justice in 1795, had organized South Carolina’s defenses against British invasion during the war for independence, and at the convention he had been instrumental in securing the “supremacy clause” that made the Constitution binding on the states. Pennsylvanian James Wilson, a brilliant Scottish-born legal scholar, had been an outspoken nationalist in the years after independence and a leading Framer of the Constitution. Chief Justice Jay, an author of the Federalist papers, had been among the Constitution’s foremost advocates. Other justices had led their states in ratification of the new charter. On the court, they saw their task as supporting the fledgling government. With the president and Congress, they made a three-horse team. They were all, in a word, Federalists.

  To Washington, this was not partisanship. The commitment to a single, unified nation under the Constitution was the American position. But even before the new nation had been launched, the roots of opposition to Federalism took form, and Washington’s success in establishing federal power prompted that early Anti-Federalism, with its suspicion that the national government would crush the autonomy of the states and the liberties of the people, to metamorphose by the mid-1790s into a new, “Republican” opposition led by James Madison and Thomas Jefferson. Both men had backed the Constitution—Madison of course was its lead author, while Jefferson had offered qualified but positive support from his perch as minister to France. Both had been insiders during Washington’s first term—Madison as the president’s legislative leader in the House and Jefferson as secretary of state. But Washington’s closest collaborator turned out to be Treasury Secretary Alexander Hamilton, whose plans for a centralization of national power and for rapid economic development, with government giving industry and finance a push, appalled both Madison and Jefferson. During Washington’s second term, they built the framework for America’s first political party.

  Partisan conflict quickly became virulent and vindictive, as Republicans sneered at Washington’s monarchical, “monocratic” pretensions. In his Farewell Address, the president warned that parties or “factions” were a threat to the survival of the republic. If elections were conducted on party lines, he feared that “the alternate domination of one faction over another” and the result
ing “disorders and miseries” would “gradually incline the minds of men to seek security and repose in the absolute power of an Individual” who would stand on “the ruins of Public Liberty.”

  In 1796, at least, there was to be no alternation. In the first contested presidential election, John Adams, Washington’s loyal vice president and heir, eked out a three-vote victory over Jefferson in the electoral college. As Washington’s successor, Adams had the right credentials. He had been a leader in Massachusetts’ revolt against British rule and in the Continental Congress and then a strong supporter of the Constitution, whose form his writings on balanced government had influenced. But unlike Washington, this vain, ambitious, cantankerous man made no pretense of nonpartisanship. He was quick to discover sedition and treason in his opponents. Like Washington, Adams viewed the judicial department as a coordinate branch of government, working with the president and Congress to achieve common goals. But Adams also saw it as a vehicle to crush opposition. He was much more conscious of the party implications of judicial appointments than Washington had been, and he was determined to pack the judiciary with party loyalists, making it a Federalist stronghold—and a scourge to Republicans.

  Adams did most of his packing at the lower levels of the federal judiciary, but after one of the most spectacular flame-outs in Supreme Court history, he had an opportunity to secure Federalist domination of the high bench. James Wilson, whose hunger for fame as a lawgiver was frustrated by the early court’s relative inconsequence and by his equally powerful thirst for riches, had plunged headlong into ruinous debt, pyramiding one disastrous investment on top of another. Describing himself as “hunted like a wild beast” by creditors even while riding circuit, he was arrested and flung into debtors’ prison, where his health broke down. In 1798, he died a justice of the United States Supreme Court and a pauper. To replace him, Adams offered the job to a proven Federalist loyalist, John Marshall, who turned it down to run for a seat in Congress but recommended his close friend Bushrod Washington. Only thirty-six years old, Washington had studied law with James Wilson after service in the Continental Army and established impeccable Federalist credentials as a delegate in Virginia’s legislature. He also happened to be the beloved nephew of the Father of His Country. Bushrod Washington would promote Federalism from the high bench for more than three decades.