an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Rick's post on FDR and the Supreme Court raises several important theoretical questions. But to discuss them we must separate out two different issues:
1. Does the Supreme Court, over time, stay in sync with the national political coalition? (this is not necessarily the same thing as "popular opinion.") 2. Is it easy or costless for politicians to directly punish the Court if it strays from the wishes of the national political coalition? The answer to question two is that it is far more difficult and costly today than it was in the early years of the republic. That is in part, because, as Keith Whittington has shown, the institution of judicial review today is a product of democratic self-government and it is in the institutional interest of the political branches to preserve an institution that can carry water for different political coalitions, that politicians can either defer to or rant and rail against from time to time as the situation demands.
As Rick points out, attempting to punish courts directly for their decisions is not costless in the American political system. FDR suffered greatly for his court packing plan, although I would emphasize that the downturn in the economy before the 1938 elections is an equally likely explanation of Roosevelt's inability to get anything done domestically later on (and we must also recognize that Roosevelt's attentions were increasingly directed toward foreign affairs). Roosevelt's woes were, as they say, overdetermined. To be sure, Congressional saber rattling in the late 1950s did appear to moderate the Supreme Court's decisionmaking for a while, but within five years the Warren Court was back in business (due to the replacement of Frankfurter with Goldberg, among other things).
My point is that the answer to question two, however, does not have much to do with the answer to question one. Despite Roosevelt's loss of political momentum, the Supreme Court began to sing from the New Deal hymnal fairly consistently from 1937 on. It modified its views to reflect those of the dominant national coalition, which was the New Deal coalition. The reason, as Rick points out, is a series of 8 Supreme Court appointments, all New Dealers, followed by several more by Harry Truman. This is Sandy Levinson's and my notion of partisan entrenchment.
If Rick is right that modern Presidents cannot easily punish the Supreme Court directly, how is it, he asks, that the Supreme Court can be more or less guaranteed to stay in touch with the values of the dominant national coalition?
The answer is that presidential appointments, the shifting identify of swing or median justices, and the ability of political parties and social movements to affect constitutional culture play a much larger role in shaping judicial decisionmaking than direct threats ever could.
Moreover, the Supreme Court is not a simple mirror of current political preferences. It is a player in the national political coalition in its own right. And appointments to the Court and the lower federal courts, strung out over long periods of time, reflect the sediments of past political bargains and coalitions. In the period between 1932 and 1937, the Supreme Court mostly maintained the constitutional vision of pre-New Deal understandings. It sought to preserve and defend these values--the values of a previous national political coalition--against attempts to undermine and displace them. Only after repeated Democratic victories at the polls, and a series of new judicial appointments by Franklin Roosevelt did the Court begin to get in line with the new regime. At that point of course, Roosevelt stopped attacking the courts, which had largely internalized the constitutional assumptions of the New Deal.
The point that the political literature makes is not that the Supreme Court marches in lock step with national values; it is not that the Court is easily or costlessly pushed around; and it is not that the Court does not enjoy considerable discretion and cannot go on frolics and detours from time to time. The point of the literature, rather, is that a series of interlocking forces, some institutional, some professional, some cultural, and some political shift the median vote on the Court over time toward the values of the national political coalition and cause the Court to legitimate what the coalition wishes to do. The history of the New Deal revolution does not undermine that claim; if anything, it shows how these collections of mechanisms work in practice. Posted
by JB [link]