Losing faith in the Court

[a_reasonable_man]

sovay asked me in an email, "I'm just not sure what happens if the country actually loses faith in the Supreme Court as an institution. Has it happened before?"

I responded as below:

The most spectacular case of what happens when much of the country loses faith in the Court was after the Dred Scott decision (1857). The Court ruled, in effect, that the cornerstone plank of the Republican platform—to ban slavery in the territories—was unconstitutional. The Republicans simply refused to accept the ruling as valid and basically ignored it. Then, when they took over the government during the Civil War, they expanded the size of the Court, from 9 to 10, to make sure they could appoint new justices. Again, in 1935-1936, the Court overruled so many New Deal programs, that in 1937, FDR, who had not been able to appoint a single new Justice, proposed his “Court packing” plan. It failed, but only because the Court shifted and began upholding New Deal legislation. There’s an argument among historians as to how much the Court Packing plan prompted the Court shift—there’s a case to be made that some of the Court shifts were in the works anyway—but it’s clear that many had come to see the Court by 1936 as a political body fighting Congress, that many believed this had to stop, and the result was the political system came close to restructuring the Court.

Usually, the Court realizes that it only has power if Congress and the President are willing to enforce its decisions, so if it’s going to make an explosive decision against them, it avoids a direct confrontation. The classic example is Marbury v. Madison (1803). The Jeffersonians had come to power, and the Court ruled that they were acting illegally in denying Marbury, a Federalist, a judicial appointment; they also ruled, separately, that a portion of the Judiciary Act of 1789 was unconstitutional—the very portion that gave Marbury standing to make his case before the Court. In other words, the decision gave Jefferson a political win, while establishing a precedent that Jefferson did not like—that the Court could overrule Congress. Another example occurred in the Gold Clause Cases (1935), in which the Court ruled that Congress had acted unconstitutionally in repealing gold clauses in federal bonds. They had been placed there to counteract currency devaluation; they stood in the way of FDR’s devaluation plans, so he had them repealed. The Court probably knew that if they simply reinstated the gold clauses, and tried to force the government to pay billions more to bondholders, FDR would probably try to defy them; in fact, he had a “Fireside Chat” already written, asking the public to ignore the decision. The Court therefore ruled that even though the gold clauses were valid, in theory meaning the government owed bondholders money, no one had grounds in this instance to sue the government for the difference. In other words, they in effect gave FDR a political win, while asserting that he was in principle wrong.

Usually, crises in Court legitimacy are avoided because Court opinion typically evolves with public opinion, in part because the Justices are appointed by elected officials and are periodically replaced. If a right-wing Court majority gets put in place; promises to stay there for decades; and acts continually in defiance of the public will (for example, repeatedly overruling a Democratic Congress and White House), the authority of the Court will certainly be challenged. With the way the Republicans have been manipulating the confirmation process, I suspect that that challenge will come sooner than later.

Comments

[asakiyume]

Sovay linked to your reply, and I'm glad she did--this is excellent. Thanks so much for sharing it publicly.

[a_reasonable_man]

Thank you. I write a lot of history, but I'm always talking to sovay about historical subjects I've not written much about, and she's always urging me to write it down and post it here. I'm glad she's encouraging me!