(Note: This is the second segment in a three part series. The first segment traced the confrontation between the executive and judicial branches of the US federal government to the powerful forces of conservatism to maintain and preserve the status quo.)
But as provocative as it sounds, this confrontation between the three branches of government is hardly new in the annals of US History...
As early as 1801, following the administrations of Washington and Adams, President Thomas Jefferson lamented the increasing shadow of federal power. The earliest champion of limited government astutely reasoned that its concentration within the defeated opposition party had merely been “retired” to the judiciary as a stronghold. “There the remains of Federalism are to be preserved and fed from the treasury and from that battery all the works of Republicanism are to be beaten down and erased.” His experience had merely demonstrated the prostration of the judiciary before partisan purposes.
In Jefferson’s case, the force of judicial opposition was blunted and rendered of little consequence as time went on, however, and his influence and revolution spread. His elected presidential successors, James Madison in 1808 followed by James Monroe in 1816, culminated nearly a quarter century of unprecedented Jeffersonian rule and the virtual disintegration of the opposition party.
Following in Jefferson’s footsteps, President Andrew Jackson protested an 1832 US Supreme Court decision affirming the expanding powers of the federal government. The decision provided that the federal government and not the states had authority in American Indian affairs. In response to the ruling, the colorful, quotable and enormously popular “president of the common man” was said to have remarked: “John Marshall (Chief Justice) has made his decision; now let him enforce it!”
In an otherwise progressive presidential administration, it was a rather isolated instance of conservatism with respect to American Indian affairs meeting a judicially active US Supreme Court head on.
The turn of the 20th century produced a similar chemistry under the presidency of Theodore Roosevelt, a rare progressive Republican. In 1905 the US Supreme Court struck down a New York state law regulating sanitary conditions and prohibiting individuals from working in bakeries for more than 10 hours per day or 60 hours per week. The Court ruled that the law limiting bakers’ working hours did not constitute a legitimate exercise of state police powers. Rather, the proper authority was the federal government, which in this instance and to that point had not acted, resulting in a void of leadership.
It was another case of a conservative US Supreme Court tamping down progressive legislation on behalf of labor and human welfare.
The dissenting (minority) opinion, only three paragraphs long, was noteworthy. It accused the conservative majority of judicial activism, pointedly claiming that the case was “decided upon an economic theory which a large part of the country does not entertain.” The minority added that “Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory.”
Over the years the case has been one of the most condemned in US history and has been used to symbolize judicial dereliction and abuse. In other words, it is a form of shorthand for extreme right wing constitutional theory. In reality, the Supreme Court was merely protecting the conservative status quo.
By the late 1930s President Franklin D. Roosevelt introduced a reform plan to re-organize the Supreme Court on its perception as a conservative hold out in an increasingly progressive climate. Termed a “Court-packing” procedure, F.D.R.’s plan sought to increase the number of sitting Justices. The idea was to increase his ability to enact New Deal programs aimed at expanding the federal government's power to alleviate the poverty-stricken conditions of the ongoing Great Depression.
The number of Justices had originally been set at 6 by Congress. In 1869 following subsequent changes in policy, the number was placed at 9. Since appointments were for life, this limited a president's power over the Supreme Court to the ability to place new nominees into vacancies on the bench, whenever they should occur. The proposed legislation would have allowed the president to select as many as 6 new Justices, each for every member over 70.5 years of age, on the theory that this would allow for the diminished capabilities of older justices. Those diminished capabilities were decidedly conservative.
Contrary to what was originally expected from the legislation, however, its failure to pass Congress coincided with the evolution of a Supreme Court newly supportive of the New Deal. While judging whether this was merely a coincidence may be a matter of speculation, its introduction damaged and cost F.D.R. some of his political support.
By the time of the 2000 presidential election the Supreme Court remained on a conservative bent as a lagging phenomenon from the successive administrations of Presidents Reagan and Bush/”41”, dating from the 12 year period from 1980-1992. Each administration was firmly and consistently outspoken against judicial activism.
Yet, in a new twist in the opposite direction of its conservative character, the Supreme Court relied on innovative readings of the constitution to resolve the disputed 2000 presidential election in favor of the more conservative candidate. It was the first and only presidential election decided by the Supreme Court in US history.
(Next week's third and final segment analyzes the legal twists and turns in the US Supreme Court case of Bush vs. Gore and concludes in the present with the Court's consideration of the constitutionality of Obamacare.)
