Bench Memos

Jeffrey Rosen’s Strange History

In an article posted at The New Republic titled “POTUS v. SCOTUS,” Jeffrey Rosen begins this way: “Barack Obama is gunning for a confrontation with the Supreme Court, and Chief Justice John Roberts has signaled that he welcomes the fight.”  This is not a promising beginning for Rosen’s piece, since it contains two dubious assertions.  First, what evidence is there that the president is “gunning for a confrontation” with the Court?  That he whined in the State of the Union address about the Citizens United case?  What does he contemplate that would really amount to a “confrontation”?  As for Roberts, he was asked about Obama’s ill-informed State of the Union remarks when speaking last week at the University of Alabama law school, and his answer was pretty mild-mannered: noting the rudeness of the president’s attack on the justices’ decision in a setting where courtesy on their part required their sitting silently, and speculating that in future the justices might just as well stay away from such a grandstanding political event.  There is no evidence in this bland statement that the chief justice is interested in having a fight with the president.

But Rosen’s article gets worse.  Having convinced himself that Obama vs. Roberts is going to be a battle royal, he then asserts that when presidents confront the Supreme Court, “it’s almost always the president who prevails.”  As he relates various episodes from history, Rosen hedges this assertion considerably.  But the contrary account is far closer to the truth.  Rosen thinks that John Marshall was “spooked” by the impeachment of Justice Samuel Chase.  I think he misreads a private letter Marshall wrote to Chase (missing his rueful sense of humor), and tendentiously describes Marshall’s conduct in Chase’s impeachment trial.  But take Rosen’s account at face value, and ask the crucial question: Was there ever any sign that Marshall’s judicial decision-making was the least bit affected by the expostulations of Thomas Jefferson?  Not a bit of it.

Abraham Lincoln did a good deal better in confronting the Taney Court–but mostly by ignoring it under wartime circumstances that hugely advantaged him as commander-in-chief, until such time as he could reshape it by filling vacancies.  And after a brief decade or so following the Dred Scott case, the Court was as strong as ever. 

The final significant case in Rosen’s history is Franklin Roosevelt’s failed effort to “pack” the Supreme Court in 1937, which Rosen says “may have cowed the Court into upholding the New Deal” despite being roundly rejected by an overwhelmingly Democratic Congress.  The more legal historians examine this episode, the weaker the case looks for any substantial effect on the Court as a result of FDR’s effort.  Roosevelt didn’t have the nerve to make an issue of the Court in his 1936 reelection campaign, then he tried disingenuously to sell his proposal as meeting a need for “fresh blood” in the judiciary, then he watched the plan take a thorough beating in congressional hearings all through the spring, while normally friendly newspaper editors attacked it all across the country.  It is true that the apparent shift of Justice Owen Roberts in one or two key cases is still not altogether explained to everyone’s satisfaction–but we are pretty sure it had nothing directly to do with Roosevelt’s court-packing plan, and maybe not much to do with a broader concatenation of political forces represented by FDR’s reelection.  Rosen says that legal historian Barry Friedman of NYU argues that if Roberts hadn’t budged, “Roosevelt would have prevailed in mobilizing public support for disciplining the justices.”  Woulda, coulda.  Sheer speculation, based on nothing much, I’m afraid.  “Disciplining”?  As in impeaching, say, Justice George Sutherland?  Not in a million years.

What really made the difference for Roosevelt was the departure of aging justices, which began in the spring of 1937 with Willis Van Devanter’s retirement.  By the end of his second term in 1940 FDR, who had had no vacancies to fill for his entire first term, had filled five.  But the court-packing plan had largely wrecked the whole of 1937 for his legislative agenda, and weakened his hand with the Democratic Congress enough that he tried unwisely to “purge” some of its members in the 1938 primaries.

Presidents who think of “confronting” the Supreme Court, more often than not, wind up involving themselves in ineffectual flailing against a sphinx-like institution that gives little response and less ground.  Believe me, I often wish it were otherwise.  After all, even with his relative success, Lincoln lost the argument against judicial supremacy, historically speaking.  More people today buy into the fallacious argument of Stephen Douglas, that opposing the Court means opposing the Constitution, than the more sensible view espoused by Lincoln in his first inaugural address (which Rosen quotes).

President Obama will have plenty of opportunity–I’m sorry to say–to attempt to reshape the Supreme Court in the ordinary way, through appointments to vacant seats.  It will not help him at all, and might hurt him in this goal, to keep harping publicly on how much he disagrees with its rulings.  If Chief Justice Roberts were in a fighting mood–which I very much doubt–he would be squinting at the White House and saying, “make my day.”