Law's politics.

• Author: Friedman, Barry
• Position: Part 4, The History of the Countermajoritarian Difficulty

INTRODUCTION: THE SEPARATION OF LAW AND POLITICS

We like to imagine that law operates in a world separate and apart from that of politics. We expect that judges will decide cases based on the facts and existing precedents, rather than on the preferences of those in power.(1) We understand that each judge may see a case differently based on life experience, and we recognize that politics influences the selection of the judges.(2) But that is where the influence of politics on judicial decision making is supposed to end.(3) We disdain the notion of judges rendering decisions under the threat of political retribution.(4) Article III's tenure and salary guarantees for federal judges are the constitutional embodiment of this value of judicial independence from political pressure.(5) When we speak of the rule of law--at home and abroad--this is in large part what we mean.(6)

Concern about the separation of law and politics has made a battleground of 1937.(7) In that year, while Franklin Roosevelt's threat to "pack" the membership of the Supreme Court was still pending, the Court appears to have done an about-face.(8) Prior to the "switch in time that saved Nine,"(9) the Court invalidated a number of New Deal measures, one after another.(10) After the switch, the Court removed itself as an obstacle to economic legislation,(11) even as it gradually found a new role scrutinizing legislative enactments that threatened individual liberty.(12) Ever since the New Deal, commentators have debated whether the change was a result of political pressure,(13) or whether the doctrinal change was unrelated to the threat of retribution that preceded.(14)

Among legal academics, New Deal historiography is again the rage(15)--and with good reason. New Deal commitments that have shaped the structure of American law and politics for the last sixty years show signs of crumbling.(16) Recent federalism and economic liberty decisions suggest greater supervision by the Supreme Court in areas long seen to be taboo.(17) Signs of this shift occur amidst renewed concern about the legitimacy of constitutional change that the New Deal represents,(18) even though long acquiescence perhaps ought to have put such concerns to rest.(19)

The thesis of this Article is that if one is concerned about judicial independence from politics it may be more profitable to examine popular reaction to Supreme Court decisions, rather than the common approach in New Deal scholarship of investigating the Supreme Court's reaction to popular politics. Most accounts of the events of 1937 center on the question whether the Supreme Court shifted ground in response to the direct threat to its independence embodied in the Court-packing proposal, or whether there is another less political explanation for the Court's doctrinal change.(20) This question is probably unanswerable.(21) More important, it is of dubious value in revealing much about the future of judicial independence or the rule of law. After all, examinations of this question inevitably focus on whether one or two Justices switched their votes on critical issues in light of the specific events of the day.(22) It would be very difficult to generalize from this account to different times and different judges.

But what if we reversed the question, and instead tried to understand the public's response to the Supreme Court?(23) The premise here is that ultimately the separation of legal decision making from political action depends not only on what courts do in response to the measures that threaten them, but more importantly on what degree of freedom and independence the public generally is willing to extend to courts.(24) This, in turn, depends at least in part upon deeper strains of cultural thought regarding democracy and constitutionalism.(25) This Article thus is a historical examination of the strains of thought present in American society that operated separate and apart from direct political retribution, but appear to have influenced both Roosevelt's choice of the Court-packing remedy and its ultimate demise. The story told here zooms the camera out from the specific events of early 1937, to provide a more panoramic view of the culture in which those heated politics occurred. The focus is on broad social, cultural, and political understandings in the 1930s regarding the operation of democracy, the role of courts in that democracy, and the determinacy of constitutional meaning. These imbedded understandings provide a way to understand the events of 1937 as something more than either a threat of political retribution or simple doctrinal change. They also provide insight into how we have come to understand the rule of law the way we do.

As this Article explains, the battle in 1937 over the Court-packing plan was a collision between embedded notions of judicial supremacy and equally strong feelings that contrary to judicial rulings--and to prior conceptions about American democracy--the national government must have the power to deal with the Depression. These views were reconciled by recognizing that the Constitution was "living" or "elastic" enough to permit government the necessary power. The institution of judicial review was not perceived to be the problem (as it had been at other times in history); rather, it was the Justices themselves who were seen as out of touch with present needs. Thus, Court-packing made some sense as a remedy, because it involved a change in personnel without tampering with the institution of judicial review it self.(26)

The plan failed, however, because Roosevelt mistook the strength of two dominant ideas. First, he grossly underestimated public acceptance of judicial independence and supremacy. More important, he failed to understand that while the public was willing to cede power to the national government--and particularly to the Executive--to address the crisis, many also worried about the threat to civil liberty this might represent, a problem made apparent in the growth of totalitarian governments abroad. Thus, as the national government and Executive authority grew, the people resisted a fundamental change in the one institution they charged with protecting individual liberty--the courts.(27)

This examination of popular attitudes toward judicial review during the crisis of 1937 also provides insight into the central concern of the academy regarding the doctrinal change that occurred in the wake of the defeat of the Court-packing plan. Since 1937, the legal academy has struggled to resolve the apparent double standard reflected in the contrast between the Court's post-New Deal abdication of supervision of economic legislation and the more aggressive protection of individual liberty reflected in the famous footnote four of the Carolene Products decision. The standard account suggests judges erred in the pre-Court-packing period by imposing their own values on the Constitution.(28) But if imposing judicial values was inappropriate with regard to economic liberties, what possibly justified intrusive judicial decision making with regard to noneconomic, or "individual" liberties?

Although no single answer can resolve this difficult problem, it is worth observing that the Court's shift in doctrinal direction bears remarkable resemblance to a similar shift in the strains of political thought present at the time of the switch. In other words, the post-1937 constitutional regime mirrored deep social understandings about constitutional liberty and the role of the Supreme Court.

This Article thus is a comment on the legitimacy of constitutional change. As used here, however, "legitimacy" takes on a special and specific meaning. There is already an enormous body of constitutional scholarship given over to the question of the legitimacy of constitutional change,(29) most of it theoretical and normative in nature. In contrast, this Article suggests legitimacy may be "empirical" as well.(30) The claim here is that in order to survive, a constitutional regime must tap into, and bear some consistency with, deeper public or social understandings of how that regime should be. This consistency with social understandings may not be a sufficient condition for legitimacy; the suggestion here is that it is a necessary one.(31)

There is a central lesson to this study, one that weaves together concerns about the separation of law and politics, and the legitimacy of constitutional change. This lesson is that law and politics are intertwined, but at a remove. In the rough and tumble of American politics, courts inevitably will be subjected to political pressure when judicial decisions are unpopular. Yet, what may matter most to judicial independence are deeper public sentiments about the role of judicial review itself.(32) It is not the specific retributive proposals that matter, but their likelihood of success. This depends in part, but only in part, on what the Court actually is doing at any moment. Equally important are broader social attitudes toward democracy and constitutionalism. Of course, there will be some symbiotic relationship between what the Court is doing and social attitudes about judicial review. But even here what matters most may be the Court's work over the long term, not any specific decision or body of decisions.(33)

A word is in order at the outset about the constant refrain here regarding "the public." Historians in particular are wary of broad assertions about "public" thought.(34) Is the "public" discussed here really the general public, or is it some subset of political elites, intellectual elites, or the "thinking public"? It may seem entirely plausible, for example, that elite views shifted in the 1920s and 1930s from an understanding of a static to a living Constitution, but can it be said that the general public even was paying attention, let alone that it held such a "sophisticated" perspective?

These questions need not necessarily be answered, because the...