NORTH CAROLINA LAW REVIEW Volume 63 | Number 2 1-1-1985 Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade Ruth Bader Ginsburg Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Ruth B. Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375 (1985). Available at: http://scholarship.law.unc.edu/nclr/vol63/iss2/4 This Comments is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu. Article 4 ESSAY SOME THOUGHTS ON AUTONOMY AND EQUALITY IN RELATION TO ROE V WADE RUTH BADER GINSBURGt The 1973 United States Supreme Court decision in Roe v. Wade sparked a legal andpolitical controversy that continues to this day. Judge Ginsburg suggests that the Roe opinion would have been more acceptable f it had not gone beyond a ruling on the extreme statute involved in the case. She agrees with commentary maintainingthat the Court should have adverted specfcally to sex equality considerations. Such an approach might have muted the criticism of the Roe decision. The breadth and detailof the Roe opinion ironically may have stimulated,ratherthan discouraged,antiabortionmeasures,particularly with respect to publicfunding of abortion. These remarks contrast two related areas of constitutional adjudication: gender-based classification and reproductive autonomy. In both areas, the Burger Court, in contrast to the Warren Court, has been uncommonly active. The two areas are intimately related in this practical sense: the law's response to questions subsumed under these headings bears pervasively on the situation of women in society. Inevitably, the shape of the law on gender-based classification and reproductive autonomy indicates and influences the opportunity women will have to participate as men's full partners in the nation's social, political, and economic life.' Doctrine in the two areas, however, has evolved in discrete compartments. The High Court has analyzed classification by gender under an equal t This Essay was delivered as the William T. Joyner Lecture on Constitutional Law at the University of North Carolina School of Law on April 6, 1984. t United States Circuit Judge, United States Court of Appeals for the District of Columbia Circuit. The author acknowledges with appreciation the assistance of her 1983-1984 law clerk, Michael Klarman, in the composition of this Essay. 1. See Karst, Foreword- Equal Citizenshop Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 53-59 (1977). In composing this presentation, I have been stimulated, particularly, by the more encompassing and trenchant work of Professor Sylvia Law of New York University Law School, Law, Rethinking Sex and the Constitution, 132 U. PA. L. REv. 955 (1984), and Professor Wendy Williams of Georgetown University Law Center, W. Williams, Equality Riddle: Pregnancy and the Equal Treatment/Special Treatment Debate (Mar. 1984) (unpublished manuscript); W. Williams, Pregnancy: Special Treatment vs. Equal Treatment (Mar. 7, 1982) (unpublished manuscript); W. Williams, The Equality Crisis: Some Reflections on Culture, Courts and Feminism (1982) (unpublished manuscript). Iowe both of them special appreciation for sharing their draft manuscripts and ideas with me. For the vulnerabilities readers lind in this discussion of tense issues, however, I bear sole responsibility. NORTH CAROLINA LAW REVIEW [Vol. 63 protection/sex discrimination rubric; it has treated reproductive autonomy under a substantive due process/personal autonomy headline not expressly linked to discrimination against women. The Court's gender classification decisions overturning state and federal legislation, in the main, have not provoked large controversy; the Court's initial 1973 abortion decision, Roe v. Wade,2 on the other hand, became and remains a storm center. Roe 1'.Wade sparked public opposition and academic criticism, 3 in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action. I will attempt to explain these twin perspectives on Roe later in this Essay. Preliminarily, I will relate why an invitation to speak at Chapel Hill on any topic relating to constitutional law led me to think about gender-based classification coupled with Roe and its aftermath. In 1971, just before the 4 Supreme Court's turning-point gender-classification decision in Reed v. Reed, and over a year before Roe v. Wade, i visited a neighboring institution to participate in a conference on women and the law. I spoke then of the utility of litigation attacking official line-drawing by sex. My comments focused on the chance in the 1970s that courts, through constitutional adjudication, would aid in evening out the rights, responsibilities, and opportunities of women and men.5 I did not mention the abortion cases then on the dockets of several lower courts-I was not at that time or any other time thereafter personally engaged in reproductive-autonomy litigation. Nonetheless, the most heated questions I received concerned abortion. The questions were pressed by black men. The suggestion, not thinly veiled, was that legislative reform and litigation regarding abortion might have less to do with individual autonomy or discrimination against women than with restricting population growth among oppressed minorities.6 The 2. 410 U.S. 113 (1973). 3. See, e.g., Ely, The Wages of Crying Wolf A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973); Epstein, Substantive Due Process by Any Other Name- The Abortion Cases, 1973 Sup. CT. REv. 159. 4. 404 U.S. 71 (1971) (statutory preference for males as estate administrators held unconstitutional). 5. See Ginsburg, Sex and UnequalProtection:Men and Women as Victims, IJ. FAM. L. 347 (1971) (presenting text of October 1, 1971 remarks made at the Southern Regional Conference of the National Conference of Law Women, held at Duke University Law School). 6. Law journal commentary around that time discussed population control measures that the government might order. See, e.g., Note, LegalAnalysisand Population Control-The Problem of Coercion, 84 HARv. L. REv. 1856 (1971). Some commentators explicitly noted links between the abortion and population explosion issues. See, e.g., Leavy & Kummer, Abortion and the Popu. lation Crisis,-TherapeuticAbortion and the Law; Some New Approaches, 27 Oni o Sr. L.J. 647, 652 (1966) ("[T]he subject of abortion is riding the wave of the grand dialogue over the population explosion and the need for birth control programs."); Note, Abortion Reform: History, Status, and Prognosis,21 CASE W. REs. L. REv. 521, 523 (1970) ("IT]hose countries that have sanctioned abortion on demand have been rewarded with consequent alleviation of dire overpopulation .... );see also Survey Finds 50% Back Liberalization of Abortion Policy, N.Y. Times, Oct. 28, 1971, at Al, col. 1 ("General concern over population growth has become so intense ... that half the public now favors liberalization of restrictions on abortion."). As the text indicates, blacksand in particular, black men-also noted the coincidence of rising population with the liberalization of abortion laws, and sometimes were strongly suspicious of the implications. See, e.g., City Blacks Get Most Abortions, N.Y. Times, Dec. 6, 1973, at 94, col. 3 (remarking upon "[tiraditional 1985] ROE V WADE strong word "genocide" was uttered more than once. It is a notable irony that, as constitutional law in this domain has unfolded, women who are not poor have achieved access to abortion with relative ease; for poor women, however, a group in which minorities are disproportionately represented, access to abortion is not markedly different from what it was in pre-Roe days. I will summarize first the Supreme Court's performance in cases challenging explicit gender-based classification-a development that has encountered no significant backlash-and then turn to the far more turbulent reproductive autonomy area. The Warren Court uncabined the equal protection guarantee in diverse settings, 7 but line drawing by sex was a quarter in which no change occurred in the 1950s and 1960s. From the 1860s until 1971, the record remained unbroken: the Supreme Court rejected virtually every effort to overturn sexbased classification by law. Without offense to the Constitution, for example, women could be kept offjuries 8 and could be barred from occupations ranging from lawyer to bartender. 9 In the 1970s overt sex-based classification fell prey to the Burger Court's intervention. Men could not be preferred to women for estate administration purposes, the Court declared in the pivotal Reed v. Reed' ° decision. Married women in the military could not be denied fringe benefits-family housing and health care allowances-accorded married men in military service, the High Court held in Frontierov. Richardson.'I Social security benefits, welfare assistance, and workers' compensation secured by a male's employment must be secured, to the same extent, by a female's employment, the Supreme Court ruled in a progression of cases: Weinberger v. Wiesenfeld,12 Califano v. Gold15 farb,13 Caiffano v. Westcott, 14 and Wengler v. DruggistsMutualInsurance Co. Girls are entitled to the same parental support as boys, the Supreme Court stated in Stanton v.Stanton.16 Evidencing its neutrality, the Court declared in . . .black male resistance to abortion" and the view of the "militant [black] movement" that abortion is "genocide"). 7. See Shapiro v. Thompson, 394 U.S. 618 (1969) (interstate travel); Levy v. Louisiana, 391 U.S. 68 (1968) (discrimination on the basis of out-of-wedlock birth); Harper v. Virginia Bd.of Elections, 383 U.S. 663 (1966) (access to ballot); Reynolds v. Sims, 377 U.S. 533 (1964) (apportionment); Griffin v. Illinois, 351 U.S. 12 (1956) (access to court); Brown v. Board of Educ., 347 U.S. 483 (1954) (race discrimination). 8. See Hoyt v. Florida, 368 U.S. 57 (1961) (upholding state statute requiring that, to serve on juries, women, but not men, must volunteer affirmatively for service); Fay v. New York, 332 U.S. 261 (1947) (upholding state's "blue ribbon" jury scheme despite gross disparity between numbers of women and men selected to serve); Strauder v. West Virginia, 100 U.S. 303, 310 (1879) (stating in dictum that states may "confine [juror] selection to males"). 9. See Goesaert v. Cleary, 335 U.S. 464 (1948) (bartender) (decision "disapproved" in Craig v. Boren, 429 U.S. 190, 210 (1976)); Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1872) (lawyer). See generally Ginsburg, Sex Equality and the Conslftution, 52 TUL. L. REv.451, 451-57 (1978). 10. 404 U.S. 71 (1971). 11. 411 U.S. 677 (1973). 12. 420 U.S. 636 (1975) (social security). 13. 430 U.S. 199 (1977) (social security). 14. 443 U.S. 76 (1979) (aid to families with dependent children). 15. 446 U.S. 142 (1980) (workers' compensation). 16. 421 U.S. 7 (1975). NORTH CAROLINA LAW REVIEW [Vol. 63 Craig v. Boren17 that boys must be permitted to buy 3.2 percent beer at the same age as girls and, in Orr v. Orr,'8 that alimony could not be retained as a one-way street: a state could compel able men to make payments to women in need only if it also held women of means accountable for payments to men unable to fend for themselves. Louisiana's rule, derived from Napoleon's Civil Code, designating husband head and master of the household, was held in Kirchbergv. Feenstra'9 to be offensive to the evolving sex equality principle. However sensible-and noncontroversial-these results, the decisions had a spectacular aspect. The race cases that trooped before the Warren Court could be viewed as moving the federal judiciary onto the course set by the Reconstruction Congress a century earlier in the post-Civil War amendments. No similar foundation, set deliberately by actors in the political arena, can account for the Burger Court sex discrimination decisions. 20 Perhaps for that reason, the Court has proceeded cautiously. It has taken no giant step. In its most recent decision, Mississippi Universityfor Women v. Hogan,2 t the High Court recognized the right of men to a nursing school education at an institution maintained by the state for women only. But it earlier had declined to condemn a state property tax advantage reserved for widows, 2 2 a state statutory rape law penalizing males but not females, 23 and draft registration limited to males. 24 It has formally reserved judgment on the question whether, absent ratification of an equal rights amendment, sex, like race, should rank as a sus25 pect classification. The Court's gender-based classification precedent impelled acknowledgment of a middle-tier equal protection standard of review, a level of judicial scrutiny demanding more than minimal rationality but less than a near-perfect fit between legislative ends and means. This movement away from the emptycupboard interpretation of the equal protection principle in relation to sex equality claims largely trailed and mirrored changing patterns in societymost conspicuously, the emergence of the two-career family. The Court's decisions provoked no outraged opposition in legislative chambers. On the contrary, in a key area in which the Court rejected claims of impermissible sex17. 429 U.S. 190 (1976). 18. 440 U.S. 268 (1979). 19. 450 U.S. 455 (1981). The Louisiana legislation at issue provided specifically that a hus- band had a unilateral right to dispose ofjointly owned property without his wife's consent. Id at 456. 20. The Court once observed that the 19th amendment gave women the vote but only that. See Fay v. New York, 332 U.S. 261, 290 (1947). 21. 458 U.S. 718 (1982). 22. Kahn v. Shevin, 416 U.S. 351 (1974). 23. Michael M. v. Superior Court, 450 U.S. 464 (1981). 24. Rostker v. Goldberg, 453 U.S. 57 (1981). 25. See Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 n.9 (1982); Frontiero v, Richardson, 411 U.S. 677, 691-92 (1973) (Powell, J., concurring). For a more detailed review of the Burger Court's sex discrimination rulings, see Ginsburg, The Burger Court'r Grapplings with Sex Discrimination,THE BURGER COURT: THE COUNTERREVOLUTION THAT WASN'T 132 (V. Blasi ed. 1983) [hereinafter cited as THE BURGER COURT]. 1985] _ROE V WDE based classification, Congress indicated a different view, one more sensitive to discrimination against women. That area, significantly in view of the Court's approach to reproductive choice, was pregnancy. In 1974 the Court decided an issue pressed by pregnant school teachers forced to terminate their employment, or take unpaid 26 maternity leave, months before the anticipated birth date. Policies singling out pregnant women for disadvantageous treatment discriminated invidiously on the basis of sex, the teachers argued. The Court bypassed that argument; instead, the Court rested its decision holding mandatory maternity leaves unconstitutional on due process/conclusive presumption reasoning. 27 Some weeks later, the Court held that a state-operated disability income protection plan could exclude normal pregnancy without offense to the equal protection principle.28 In a statutory setting as well, under Title VII, the Court later ruled, as it earlier had held in a constitutional context, that women unable to work due to pregnancy or childbirth could be excluded from disability coverage. 29 The classifications in these disability cases, according to the Court, were not gender-based on their face, and were not shown to have any sexpersons," women along with men, the discriminatory effect. All "nonpregnant 30 Court pointed out, were treated alike. With respect to Title VII, Congress prospectively overruled the Court in 1978. It amended the statute to state explicitly that classification on the basis 1 of sex includes classification on the basis of pregnancy. 3 That congressional definition is not controlling in constitutional adjudication, but it might stimulate the Court one day to revise its position that regulation governing "pregnant persons" is not sex-based. Roe v. Wade, in contrast to decisions involving explicit male/female classification, has occasioned searing criticism of the Court, over a decade of demonstrations, a stream of vituperative mail addressed to Justice Blackmun (the author of the opinion), annual proposals for overruling Roe by constitutional amendment, 32 and a variety of measures in Congress and state legislatures to contain or curtail the decision. 33 In 1973, when Roe issued, abortion law was in a state of change across the nation. There was a distinct trend in the states, 26. Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974). 27. Id. at 639-50. The irrebuttable or conclusive presumption mode of analysis has lost favor with the Court in other contexts. See Weinberger v. Salfi, 422 U.S. 749, 771-72 (1975). 28. Geduldig v. Aiello, 417 U.S. 484 (1974). 29. General Elec. Co. v. Gilbert, 429 U.S. 125 (1976). 30. Id. at 135. 31. Act of Oct. 31, 1978, Pub. L. No. 95-555, 92 Stat. 2076 (amending 42 U.S.C. § 2000e (1976)). 32. See, e.g., Destro, Abortion and the Constitution: The Needfor a Life-Protective Amendment, 63 CALIF. L. REV. 1250, 1319-25 (1975) (discussing proposed amendments). 33. See, e.g., Hyde, The Human Life Bill: Some Issues andAnswers, 27 N.Y.L. SCH. L. Rnv. 1077 (1982) (congressional response); Witherspoon, The New Pro-Lfe Legislation: Patterns and Recommendations, 7 ST. MARY'S L.J. 637 (1976) (state response); Note, Implications ofthe Abortion Decisions: Post Roe andDoe Litigation and Legislation,74 COLUM. L. REv. 237 (1974) (state response); see also infra notes 50-52 and accompanying text. NORTH CAROLINA LAW REVIEW[ [Vol. 63 noted by the Court, "toward liberalization of abortion statutes." 34 Several states had adopted the American Law Institute's Model Penal Code approach setting out grounds on which abortion could be justified at any stage of pregnancy; most significantly, the Code included as a permissible ground preservation of the woman's physical or mental health.35 Four states-New York, Washington, Alaska, and Hawaii-permitted physicians to perform first-trimester abortions with virtually no restrictions. This movement in legislative arenas bore some resemblance to the law revision activity that eventually 36 swept through the states establishing no-fault divorce as the national pattern. The Texas law at issue in Roe made it a crime to "procure an abortion" 37 except "by medical advice for the purpose of saving the life of the mother." It was the most extreme prohibition extant. The Court had in close view two pathmarking opinions on reproductive autonomy: first, a 1965 precedent, Griswold v. Connecticut,3 8 holding inconsistent with personal privacy, somehow sheltered by due process, a state ban on the use of contraceptives even by married couples; second, a 1972 decision, Eisenstadt v. Baird,39 extending Griswold to strike down a state prohibition on sales of contraceptives except to married persons by prescription. The Court had already decided Reed v. Reed,40 recognizing the arbitrariness in the 1970s of a once traditional genderbased classification, but it did not further pursue that avenue in Roe. The decision in Roe appeared to be a stunning victory for the plaintiffs. The Court declared that a woman, guided by the medical judgment of her physician, had a "fundamental" 4 ' right to abort a pregnancy, a right the Court 34. Roe, 410 U.S. at 140; see also infra note 81. 35. MODEL PENAL CODE § 230.3 (1980). 36. On the transition from fault to no-fault divorce, see Raphael, Frank & Wilder, Divorce in America: The Erosion of Faul, 81 DICK. L. REv. 719, 728 (1976-1977) ("For the past three de- cades there has been a strong trend away from the traditional notion that one spouse must be guilty of some injury to the other before a divorce may be granted."); Note, Untying the Knot: The Course and Patterns of Divorce Reform, 57 CORNELL L. REV. 649 (1972). Long before no-fault divorce legislation became the norm in this country, persons with the financial resources to do so could travel to certain states or outside the country to end their marriages. See, e.g., Friedman & Percival, Who Suesfor Divorce?FromFaultThrough Fictionto Freedom, 5 J. LEGAL STUD. 61, 68 (1976) (before the sudden burst of no-fault divorce legislation in early 1970s, "divorce on demand had been available in many states, but at a stiff price"); Wash. Post, Feb. 1, 1972, at A 18, col. 1 ("[S]omething is wrong when people who have $400 and a plane ticket can get quickie divorces and those who don't can't."), quoted in Zuckman, Recent Developments in American Divorce Legislation, 35 JURIST 6, 12 (1975). Similarly, before Roe, women of means could end their pregnancies by traveling to states or foreign nations with less restrictive abortion laws. See Burt, The Burger Court and the Famil, THE BURGER COURT, supra note 25, at 92, 107-08 (for practical purposes, the availability of abortions in some states undermined the more restrictive regimes); Karst, supra note 1, at 59 ("Even before Roe v. Wade, wealthy women. . . could obtain abortions by traveling."); Abortionfor Whom, NEw REPUBLIC, Oct. 25, 1969, at 12 ("The rich have always been able to get abortions by going abroad. The poor cannot travel . . ... "). For example, in 1971, the second year New York's liberalized abortion law was in effect, 60% of the women having abortions in New York were nonresidents. See Light on Abortion, N.Y. Times, Sept. 4, 1972, at A 14, col. 2. 37. Roe, 410 U.S. at 117-18 (citing TEx. PENAL CODE ANN. §§ 1191, 1196 (Vernon 1961)). 38. 381 U.S. 479 (1965). Earlier, in Skinner v. Oklahoma exrel. Williamson, 316 U.S. 535, 541 (1942), the Court had referred to an individual's right to procreate as "a basic liberty." 39. 405 U.S. 438 (1972). 40. 404 U.S. 71 (1971). 41. See Roe, 410 U.S. at 152, 155. 1985] ROE V WADE anchored to a concept of personal autonomy derived from the due process guarantee. The Court then proceeded to define with precision the state regulation of abortion henceforth permissible. The rulings in Roe, and in a companion case decided the same day, Doe v. Bolton,42 were stunning in this sense: they called into question the criminal abortion statutes of every state, even those with the least restrictive provisions. Roe announced a trimester approach Professor Archibald Cox has described as "read[ing] like a set of hospital rules and regulations. 43 During the first trimester, "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician"; 44 in the next, roughly three-month stage, the state may, if it chooses, require other measures protective of the woman's health. 4 5 During the final months, "the stage subsequent to viability," the state also may concern itself with an emerging interest, the "potentiality of human life"; at that stage, the state "may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." 46 Justice O'Connor, ten years after Roe, described the trimester approach as "son a collision course with itself."47 Advances in medical technology would continue to move forward the point at which regulation could be justified as protective of a woman's health, and to move backwardthe point of viability, when the state could proscribe abortions unnecessary to preserve the patient's life or health. The approach, she thought, impelled legislatures to remain au courant with changing medical practices and called upon courts to examine legislative judgments, not as jurists applying "neutral principles," but as "sci48 ence review boards." I earlier observed that, in my judgment, Roe ventured too far in the change it ordered. The sweep and detail of the opinion stimulated the mobilization of a right-to-life movement and an attendant reaction in Congress and state legislatures. In place of the trend "toward liberalization of abortion statutes" noted in Roe,49 legislatures adopted measures aimed at minimizing the impact of the 1973 rulings, including notification and consent requirements, 50 42. 410 U.S. 179 (1973). 43. A. Cox, THE ROLE OF THE SUPREME COURT IN AMERICAN GOVERNMENT 113 (1976). 44. Roe, 410 U.S. at 164. 45. Id. 46. Id. at 164-65. The Model Penal Code provision, on which several states had patterned abortion legislation reform, see SpecialProject, Survey of Abortion Law, 1980 ARIz. ST. L.J. 67, 109 & nn.229-31, contained no limitation as to the stage of pregnancy at which an abortion could be obtained. See MODEL PENAL CODE § 230.3(2) (1980). 47. City of Akron v. Akron Center for Reproductive Health, Inc., 103 S. Ct. 2481, 2507 (1983) (O'Connor, J., dissenting). 48. Id 49. Roe, 410 U.S. at 140; see also infra note 81. 50. See City of Akron v. Akron Center for Reproductive Health, Inc., 103 S. Ct. 2481, 249799 (1983) (parental and court consent); H.L. v. Matheson, 450 U.S. 398 (1981) (parental notification); Planned Parenthood v. Danforth, 428 U.S. 52, 67-75 (1976) (spousal and parental consent). NORTH CAROLINA LAW REVIEW [Vol. 63 prescriptions for the protection of fetal life, 5' and bans on public expenditures 52 for poor women's abortions. Professor Paul Freund explained where he thought the Court went astray in Roe, and I agree with his statement. The Court properly invalidated the Texas proscription, he indicated, because "[a] law that absolutely made criminal all kinds and forms of abortion could not stand up; it is not a reasonable accommodation of interests."'53 If Roe had left off at that point and not adopted what Professor Freund called a "medical approach," 54 physicians might have been less pleased with the decision, but the legislative trend might have continued in the direction in which it was headed in the early 1970s. "[S]ome of the bitter debate on the issue might have been averted," Professor Freund believed; "[t]he animus against the Court might at least have been diverted to the legislative halls."5 5a Overall, he thought that the Roe distinctions turning on trimesters and viability of the fetus illustrated a troublesome tendency of the modem Supreme Court under Chief Justices Burger and Warren "to specify by a kind of legislative code the one alternative pattern that 56 will satisfy the Constitution." I commented at the outset that I believe the Court presented an incomplete justification for its action. Academic criticism of Roe, charging the Court with reading its own values into the due process clause, might have been less pointed had the Court placed the woman alone, rather than the woman tied to her physician, at the center of its attention. Professor Karst's commentary is indicative of the perspective not developed in the High Court's opinion; he 57 solidly linked abortion prohibitions with discrimination against women. The issue in Roe, he wrote, deeply fouched and concerned "women's position 58 in society in relation to men." It is not a sufficient answer to charge it all to women's anatomy-a natural, not man-made, phenomenon. Society, not anatomy, "places a greater stigma on unmarried women who become pregnant than on the men who father their children."5 9 Society expects, but nature does not command, that "women take the major responsibility. . . for child care" 60 and that they will 51. See Planned Parenthood Ass'n v. Ashcroft, 103 S. Ct. 2517, 2521-22 (1983); Planned Parenthood v. Danforth, 428 U.S. 52, 81-84 (1976). 52. See Harris v. McRae, 448 U.S. 297 (1980) ("Hyde Amendment" to Title XIX of Social Security Act); Maher v. Roe, 432 U.S. 464 (1977) (state Medicaid regulations). 53. Freund, Storms over the Supreme Court, 69 A.B.A. J. 1474, 1480 (1983) (adapted from inaugural Harold Leventhal Lecture at Columbia Law School). 54. Id 55. Id; cf. Burt, supra note 36, at 107-09 (arguing that Roe was "unnecessary" because "majoritarian institutions" were not "unfairly disregard[ing]" interests of "proponents of free abortion"); infra note 81. 56. Freund, supranote 53, at 1480. 57. Karst, supra note I, at 58; Cf. M. CAPPELLETri & W. COHEN, COMPARATIVE CONSTITUTIONAL LAW 614-15 (1979) (observing that Italian Constitutional Court ruling on abortion statutes also avoided treating the matter as a women's rights issue). 58. Karst, spra note 1, at 58. 59. Id.at 57. 60. Id 1985] ROE V WADE stay with their children, bearing nurture and support burdens alone, when fathers deny paternity or otherwise refuse to provide care or financial support for unwanted offspring. I do not pretend that, if the Court had added a distinct sex discrimination theme to its medically oriented opinion, the storm Roe generated would have been less furious. I appreciate the intense divisions of opinion on the moral question and recognize that abortion today cannot fairly be described as nothing more than birth control delayed. The conflict, however, is not simply one between a fetus' interests and a woman's interests, narrowly conceived, nor is the overriding issue state versus private control of a woman's body for a span of nine months. 6 1 Also in the balance is a woman's autonomous charge of her full life's course-as Professor Karst put it, her ability to stand in relation to 62 man, society, and the state as an independent, self-sustaining, equal citizen. On several occasions since Roe the Court has confronted legislative responses to the decision. With the notable exception of the public funding cases, the Court typically has applied Roe to overturn or limit efforts to impede access to abortion. I will not survey in the brief compass of this Essay the Court's series of opinions addressing: regulation of the abortion decisionmaking process; specifications regarding personnel, facilities, and medical procedures; and parental notification and consent requirements in the case of minors. 63 Instead, I will simply highlight the Court's statement last year reaffirming Roe's "basic principle that a woman has a fundamental right to make the highly personal choice whether or not to terminate her pregnancy." 64 In City of Akron v. Akron Centerfor Reproductive Health, Inc.,65 the Court acknowledged arguments it continues to hear that Roe "erred in interpreting the Constitution." 66 Nonetheless, the Court declared it would adhere to Roe because "stare decisis,while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law." 67 I turn, finally, to the plight of the woman who lacks resources to finance privately implementation of her personal choice to terminate her pregnancy. The hostile reaction to Roe has trained largely on her. Some observers speculated that the seven-two judgment in Roe was motivated at least in part by pragmatic considerations-population control concerns, the specter of coat hanger abortions, and concerns about unwanted children born to impoverished women. I recalled earlier the view that the 61. But cf. Regan, Rewriting Roe v. Wade, 77 MICH. L. REv. 1569 (1979) (contending that even when the parent-child relationship is involved our law generally does not require a person to submit to a bodily invasion or the imposition of physical pain to save the life of another). 62. Karst, supra note 1, at 57-59. 63. The Court's 1975-1981 decisions are listed in City of Akron v. Akron Center for Reproductive Health, Inc., 103 S. Ct. 2481, 2487 n.1 (1983). 64. Id. 65. 103 S. Ct. 2481 (1983). 66. Id. at 2487. 67. Id. NORTH CAROLINA LAW REVIEW [Vol. 63 demand for open access to abortions had as its real purpose suppressing minorities. 68 In a set of 1977 decisions, however, the Court upheld state denial of medical expense reimbursement or hospital facilities for abortions sought by indigent women. 69 Moreover, in a 1980 decision, Harris v. McRae,70 the Court found no constitutional infirmity in the Hyde Amendment, which excluded even medically necessary abortions from Medicaid coverage. 71 After these decisions, the Court was accused of sensitivity only to the Justices' own 72 social milieu--"of creating a middle-class right to abortion." The argument for constitutionally mandated public assistance to effectuate the poor woman's choice ran along these lines. Accepting that our Constitution's Bill of Rights places restraints, not affirmative obligations, on government, 73 counsel for the impoverished women stressed that childbirth was publicly subsidized. As long as the government paid for childbirth, the argument proceeded, public funding could not be denied for abortion, often a safer and always a far less expensive course, short and long run. By paying for childbirth but not abortion, the complainants maintained, government increased spending and intruded upon or steered a choice Roe had ranked as a 7 woman's "fundamental" right. 4 The Court responded that, like other individual rights secured by the Constitution, the right to abortion is indeed a negative right. Government could not intervene by blocking a woman's utilization of her own resources to effectuate her decision. It could not " 'impose its will by force of law.' ",75 But Roe did not demand government neutrality, the Court reasoned; it left room for substantive government control to this extent: Action "deemed in the public interest ' 76 -in this instance, protection of the potential life of the fetus- could be promoted by encouraging childbirth in preference to abortion. 77 Financial need alone, under the Court's jurisprudence, does not identify a class of persons whose complaints of disadvantageous treatment attract close scrutiny. 78 Generally, constitutional claims to government benefits on behalf 68. See supra text accompanying notes 5-6. 69. Poelker v. Doe, 432 U.S. 519 (1977) (per curiam) (equal protection clause does not re- quire public hospitals to perform abortions simply because they provide publicly financed hospital services for childbirth); Maher v. Roe, 432 U.S. 464 (1977) (equal protection clause does not re- quire state participating in Medicaid program to pay expenses incident to nontherapeutic abortions for indigent women simply because it pays expenses incident to childbirth); Beal v. Doe, 432 U.S. 438 (1977) (same ruling under Social Security Act). 70. 448 U.S. 297 (1980). 71. Id at 326-27. But see Fischer v. Department of Pub. Welfare, 475 A.2d 873 (Pa. Commw. Ct. 1984) (state denial of Medical Assistance funds to indigent women seeking medically necessary abortions violates equal protection clause of, and equal rights amendment to, state constitution). 72. Shapiro, FathersandSons: The Court, The Commentators,and the Searchfor Values, THE BURGER CoURT, supra note 25, at 218, 229; see Karst, supra note 1, at 59. 73. See Henkin, Rights: Here and There, 81 COLUM. L. REV. 1582 (1981); Henkin, Rights: American and Human, 79 COLUM. L. REV. 403 (1979). 74. See Harris,448 U.S. at 329 (Brennan, J., dissenting). 75. Id at 315 (quoting Maher v. Roe, 432 U.S. 464, 476 (1977)). 76. Id. 77. Id 78. San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973). 1985] ROE V WADE of the poor have prevailed only when tied to another bark-a right to travel interstate, discrimination because of out-of-wedlock birth, or gender-based discrimination. 79 If the Court had acknowledged a woman's equality aspect, not simply a patient-physician autonomy constitutional dimension to the abortion issue, a majority perhaps might have seen the public assistance cases as instances in which, borrowing a phrase from Justice Stevens, the sovereign had violated its "duty to govern impartially." 80 I have tried to discuss some features of constitutional adjudication concerning sex equality, in relation to the autonomy and equal-regard values in- volved in cases on abortion. I have done so tentatively and with trepidation. Roe v. Wade is a decision I approached gingerly in prior comment; until now I have limited my remarks to a brief description of what others have said. While I claim no original contribution, I have endeavored here to state my own reflections and concerns. Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the Court. The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. 8 1 Heavy-handed judicial intervention was difficult to justify and 79. See Bennett, The Burger Court andthe Poor,THE BURGER COURT, supranote 25, at 46, 52-53. 80. Harris,448 U.S. at 357 (Stevens, J., dissenting). 81. See, e.g., Abortion BackersHopeful ofGains,N.Y. Times, Oct. 9, 1972, at A9, col. 1 ("Proabortion forces believe they are on the verge of major victories that will soon make abortion on request available throughout much of the country."); Abortion Laws Gaining Favor as New Stattes Spur Debate, N.Y. Times, Nov. 29, 1970, at A13, col. 2 ("Senator Robert W. Packwood, Republican of Oregon, predicted ... that most states would abolish laws against abortion within the next 'one to three years.' "). Polls taken prior to the 1970s indicated that substantial majorities of Americans had opposed liberalization of abortion laws. See Survey Finds 50%Back Liberalization of Abortion Policy, supra note 6, at Al, col. 1 (1965-91% oppose liberalized abortion policy; 1968-85%; 1969-79%; 1971-50%); see also Survey FindsMajority, In Shift, Now FavorsLiberalized Laws, N.Y. Times, Aug. 25, 1972, at A1, col. 3 (noting same statistics, and adding to them a 1972 poll revealing that 64% of public believe abortion decision should be left to woman and her doctor). Testifying to the "superiority of the legislative solution," Second Circuit Judge Henry J. Friendly described what happened in 1970 when New York reformed its law: I can speak with feeling because I was to have presided over a three-judge court before which the constitutionality of the old law was being challenged. Although we had not yet heard argument, I could perceive not merely how soul wrenching but how politically disturbing-and I use "politically" in the highest sense-decision either way would be. If we upheld the old law, we would be disappointing the expectations of many highminded citizens, deeply concerned over the human misery it was creating, its discriminatory effects, its consequences for the population explosion, and the hopes of the least privileged elements in the community. These people would never understand that if we held the law constitutional, we would not be finding it good. Indeed, some opponents of reform would have claimed we had done precisely that. If we were to decide the other way, many adherents of a deeply respected religion would consider we had taken unto ourselves a role that belonged to their elected representatives and that we had done what the latter, after full consideration, had refused. If they asked what specific provision of the Constitution was violated by this law of more than a century's standing, we would have had to concede that there was none and that we were drawing on what the Supreme Court has euphemistically termed "penumbras" to construct a new "fundamental" right. How much better that the issue was settled by the legislature! I do not mean that everyone is happy; presumably those who opposed the reform have not changed their views. NORTH CAROLINA L4W REVIEW [Vol. 63 appears to have provoked, not resolved, conflict. 82 The public funding of abortion decisions appear incongruous following so soon after the intrepid 1973 rulings. The Court did not adequately explain why the "fundamental" choice principle and trimester approach embraced in Roe did not bar the sovereign, at least at the previability stage of pregnancy, 83 from taking sides. Overall, the Court's Roe position is weakened, I believe, by the opinion's concentration on a medically approved autonomy idea, to the exclusion of a constitutionally based sex-equality perspective. I understand the view that for political reasons the reproductive autonomy controversy should be isolated from the general debate on equal rights, responsibilities, and opportunities for women and men. I expect, however, that organized and determined opposing efforts to inform and persuade the public on the abortion issue will continue through the 1980s. In that process there will be opportunities for elaborating in public forums the equal-regard conception of women's claims to reproductive choice uncoerced and unsteered by government. But the result is acceptable in the sense that it was reached by the democratic process and thus will be accepted, even though many will not regard it as right. H. Friendly, Some Equal Protection Problems of the 1970's 14-15 (NYU School of Law 1970) (available at North Carolina Law Review office). 82. See Burt, supra note 36, at 107-09; cf.Blasi, The Rootless Activism of the Burger Court, THE BURGER COURT, supranote 25, at 198, 212. (Roe was "[g]rounded not on principle," but on an "ad hoc comparison of. . .interests"). One pair of commentators observed: In many respects the abortion controversy of the 1970s is similar to the busing disputes of the late 1960s and early 1970s. Both the pro-life and anti-busing movements began in reaction to decisions of the Supreme Court. Both activated many people who previously had been at the periphery of. . .politics. The two movements each caught on quickly and developed a strong national base. Uslaner & Weber, Public Support for Pro-ChoiceAbortion Policies in the Nation and States: Changes and StabilityAfter the Roe andDoe Decisions, 77 M icH. L. REV. 1772, 1787-88 (1979); see also id at 1785. 83. Cf.Bennett, supra note 79, at 52 (arguing that Harris(upholding denial of Medicaid funds for abortion) is inconsistent with Shapiro v. Thompson, 394 U.S. 618 (1969) (declaring inconsistent with equal protection denial of welfare benefits to new residents)). Judicial Independence and the Reality of Political Power Author(s): Gerald N. Rosenberg Source: The Review of Politics, Vol. 54, No. 3, Special Issue on Public Law (Summer, 1992), pp. 369-398 Published by: Cambridge University Press for the University of Notre Dame du lac on behalf of Review of Politics Stable URL: http://www.jstor.org/stable/1407797 Accessed: 03-07-2018 14:20 UTC REFERENCES Linked references are available on JSTOR for this article: http://www.jstor.org/stable/1407797?seq=1&cid=pdf-reference#references_tab_contents You may need to log in to JSTOR to access the linked references. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at http://about.jstor.org/terms Cambridge University Press, University of Notre Dame du lac on behalf of Review of Politics are collaborating with JSTOR to digitize, preserve and extend access to The Review of Politics This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms Judicial Independence and the Reality of Political Power Gerald N. Rosenberg Defining judicial independence as the ability of courts to make decisions in the short term without regard for the preferences of officeholders, this article empirically examines the conditions under which judicial independence is and is not likely to be found. Nine periods of intense congressional hostility to the Supreme Court are identified and Court reactions are chartered alonga continuum from pure independence to total subservience. Examination of the historical record highlights five key factors related to independence and shows that judicial independence existed in only three of the periods. In the remaining six periods, the Court either refrained from hearing certain cases, issued opinions more in line with congressional preferences, or reversed itself. The article rejects the hypothesis of judicial independence, concluding that in times of congressional opposition to the Court, only under special conditions identified in the analysis will it retain its independence. Introduction The independence of the federal judiciary from political con- trol is a hallmark of the American legal system. Institutiona separate and distinct from the other branches of the federal gov ernment, the judiciary is electorally unaccountable. Judges a justices are insulated from the political process through constitu tional guarantees of life appointments and salaries that may not diminished during their terms of office. In theory, this indepen dence, plus the power to hold legislative and executive acts u constitutional, allows courts to "stand as the ultimate guardians our fundamental rights."' To laypeople, lawyers, and social sc entists alike, judicial independence is central to American go ernment. I gratefully acknowledge helpful and extensive comments on an earlier dr from John Mark Hansen and Cass Sunstein of the University of Chicago Rogers Smith and Stephen Carter of Yale University. 1. Charles A. Horsky, "Law Day: Some Reflections on Current Proposals Curtail the Supreme Court," Minnesota Law Review 42 (1958): 1105, 1111. 369 This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms 370 THE REVIEW OF POLITICS While many social scientists are too "sophistic to putmuch stock in all but the weakest notions o dence, the entire field of constitutional scholars Supporters and critics of judicial activism rely h notion of judicial independence. For proponent ism, independence allows courts to avoid the pre sightedness to which elected officials som Electorally unaccountable and institutionally i judges can preserve rights under attack. An activ sible in a democracy, then, precisely because it i independence allows it to act to uphold rights majorities are paralyzed by prejudice. A nonin court would simply reinforce the discrimination the other branches. On the other hand, critics o assume judicial independence as well. They ar sometimes are carried away by the personal and their members. Acting like "super-legislatures," policy decisions without the input of the democr occurs because courts are independent, free o process constraints that limit elected officials. A activist court would not be dangerous becaus against the wishes of the other branches. Indeed the countermajoritarian nature of judicial revi meaningful judicial independence. Both suppor judicial activism assume judicial independence Constitutional structures, patterns of beli assumptions of much constitutional scholarsh accurately reflect actual power relations. To assu pendence on these grounds is to overlook prac presence of power relations can only be judge assertion of judicial independence must be tested article attempts the task. Although the reader may have a gut-level sens of judicial independence, some elaboration is re independence I mean the Supreme Court's relat ward understanding of "judges who are free fro nation by other branches of government."2 If th 2. U.S. v. Will, 449 U.S. 200, 218 (1980). To the extent t This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms JUDICIAL INDEPENDENCE 371 pendent of the executive and the legislature, must at least mean that court decisions are reac regard for the political preferences of members of As Judge Kaufman put it, "the constitutional p fairly in accordance with law can be exercised ef deliberative process of the courts is free from by the President or Congress."3 The judiciary is to the extent its decision-making is free from preferences of elected officials. In a sense, though, this claims too much. Me dence does not require the hermetic sealing off from another. There is overlap between and branches of the federal government. The Congr dent, for example, continually cajole and coerce that are entirely appropriate to independent larly, courts function under laws enacted and ex branches. The very questions courts often ente the other branches. Also, judges, like elected human beings, have policy preferences on so independence, then, does not require judges world around them. It does require that thei fected, or at least minimally affected, by the s positions among members of the other branche This article tests the hypothesis that courts that they reach decisions without regard to politically accountable officials. The null hypot no judicial independence, that courts do take into account in reaching decisions. This form only a first step. Treating court decisions as eith preferences (judicial independence) or taking (no judicial independence) creates an on/off, that may miss much actual practice. It may be m court decisions as pictured in Figure I, ranging from total lack of regard for political pref subservience to them. mediated through executive and legislative action, it is subsumed under the definition. 3. Irving R Kaufman, 'The Essence of Judicial Independence," Columbia Law Review 80 (1980): 671, 691, emphasis added. This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms 372 THE REVIEW OF POLITICS FIGURE I VARIATIONS IN THE EXTENT OF JUDICIAL INDEPENDENCE INDEPENDENCE < > SUBSERVIENCE Lack of Regard Increasing Re for political prefer- for political preferences of Members of S 1 o w Stop de- Back-off other branches- d o w n velop- line other branches--Re- Continue develop- de v e1- ment of verse line ment of case line opment line of line Conceiving of judicial independence in this way allows for a more discriminating inquiry into the nature of judicial independence. Numerous studies have attempted to conceptualize and measure judicial independence. In these studies, evidence is presented that suggests that courts act congruently with the wishes of a group or party which exerts pressure outside the confines of cases.4 But how and why this occurs is left unspecified. The links between outside interests and court decisions are unclear.5 4. See, for example, Morton J. Horwitz, The Transformation of American Law (Cambridge, MA: Harvard University Press, 1977); Thomas R. Marshall, Public Opinion and the Supreme Court (Boston: Unwin Hyman, 1989); Note, "Government Litigation in the Supreme Court: The Roles of the Solicitor General," Yale Law Journal 78 (1969): 428; Steven Puro, "The United States as Amicus Curiae," in Courts, Law, andJudicial Processes, ed. S. Sidney Ulmer (New York: Free Press, 1981); Robert Scigliano, The Supreme Court and the Presidency (New York: Free Press, 1971); Martin Shapiro, "The Supreme Court: From Warren to Burger," in The New American Political System, ed. Anthony King (Washington, D.C.: American Enterprise Institute, 1978); S. Sidney Ulmer and David Willison, "The Solicitor General of the United States as Amicus Curiae in the U.S. Supreme Court, 1969-1983 Terms" (Paper presented at the annual meeting of the American Political Science Association, New Orleans, 1985). 5. This is especially the case with electoral realignments. It has been argued that attempts to curb the Court are due to the periodic electoral realignments that sweep the United States. However, since their precise meaning and identity is unclear, and since this claim reduces to one of electoral pressure, it seems more This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms JUDICIAL INDEPENDENCE 373 I test the hypothesis of judicial independence periods during which congressional hostility has been strong, and analyzing Supreme Cour then. Did the Court further or maintain the po dered hostility? Did it back off from them? O examining a number of such periods of cong patterns of Court responses may appear. The attentive reader will have noticed tha political hostility with congressional hostility on the U.S. Supreme Court. Congressional ho clearly not the only measure of judicial antipath measure of political hostility because Congres tional power to change certain institutional aspe judiciary (described, infra). While others can Congress can affect the Court in direct ways. A hostility receives nationwide media coverage. gressional hostility does not ignore the role Clearly, by commanding media coverage, an implement Court decisions, the president can Without substantial congressional support, howe risks alienating both of the other branches. Fina Supreme Court makes good sense because th Congress and the presidency, while not the only kind in the American political system, is th important one. Sitting atop a hierarchical struct most far-reaching of judicial opinions. If the Sup maintain its independence when threatened, pendence has little meaning. Identifying the preferences of elected off facing the courts is not simple. When are there independence? While legislation aimed at for decide cases in a certain way would be the ideal sensible to focus on the broader indicator. Focusing dire elected officials includes realigning periods but is not lim 6. In addition, the president could order the army to a as was done by President Lincoln. Similarly, presidents, like and 1960s over the issue of desegregation, can order gover ignore Court orders. But when this stage is reached, the government. This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms 374 THE REVIEW OF POLITICS have rarely been enacted. Thus, one must rely cators such as the number of bills introduc influencing court decisions and the strength of However, members of Congress often act ou motives, from the furtherance of policy pre claiming, publicity-seeking, turf-protecting, et bills introduced and the number of opponent capture the whole picture. The intensity beh important as well. Although intensity is difficu important to distinguish between pro forma ac tain constituencies and serious attempts to infl comes. Attention should also be paid to whether or supporters can coalesce to increase their elections may signal elected officials about t support. Where the role of the Court is an outcome can either embolden or deter Court op factors, the number of bills introduced, the num their supporters, the intensity of the suppor coalitions forming, and the results of elections, preferences. While several can be quantified eas Their presence and relative strength will be consensus of students of the period and by refe records. In examining threats to judicial independence, these five indi- cators will be the focus. The judicial independence hypothesis predicts that they are irrelevant to judicial decisions. In contrast, the null hypothesis suggests that the greater the strength of the indicators, the greater the threat to the Court, and the more subservient it will be. It is important to note that this approach focuses on attacks on the Court over the short term. There are strong reasons for such an approach. First, given the difficulty social scientists have in assessing power relations, independence can best be judged when actual threats to it can be identified. When there is little or no hostility to the Court, it cannot be determined whether the Court is acting independently or simply going along with the preferences of the other branches. However, when Court action creates political opposition, independence is brought to the limelight. Second, a classic defense of judicial independence points to the ability of the Court to check the political system in the short term, allowing for This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms JUDICIAL INDEPENDENCE 375 a "sober second thought."7 The Court, it is cl from the sway of short-sighted passions a temporary legislative majorities by checking long enough for calmer heads to prevail. Thi a focus on the short term. Liberties need pro ened and the Court can only play this prot over the short term. There is no substanti independence if courts only invalidate legisla their enactment, when the issues and passi have passed and when the damage to liberties Finally, it is dear that through the appointm lacks independence over the long term. It might be contended, however, that any congressional hostility to the Court and Cour effects. In particular, it might be suggested backs away from major decisions and periods of congressional action. If so, any correlat tivism, congressional hostility, and Court direction would not be meaningful. Happily, three kinds of examples demonstrate. Fir congressional hostility to the Court are mark ism. At times, it has been the fear of activis continued support for a given line of reason than activism per se that has ignited congr the Court. Second, there are many instan developed a new line of reasoning in a genera and stuck to it for decades. Examples mig due process, the defense of voting rights, and the procedural rights of criminal defenda shown later, there are even periods of congre Court during which the Court held fast to it reasoning. It is unlikely that any relation congressional hostility to the Court and Co ous. There are, however, some difficulties with thi Assuming periods of congressional hostility to the identified, it is only with great care that Court de 7. HarlanF. Stone, "'heComnuonLaw in theUnitedStates," Har 50 (1936): 4, 25. This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms 376 THE REVIEW OF POLITICS characterized. Broad generalizations can do vi distinctions and artful legal reasoning. Yet, w distinguished by lawyers, the bottom line politic react, and the political ramifications of decisions makes sense, then, if the data warrant it, to spea or the Court's backing down. To the extent that c can be identified, these characterizations can with such characterizations, the analysis of h hostility affects decisions is not straightforward. causation and such a showing will not demo congressional action caused the shift in Court then, the analysis will show that when there hostility, the Court conforms to congressional p could be the case that both the Court and the Co to a third force, perhaps public opinion, and tha have modified its position regardless of congress means that the strongest conclusion this approac data support it) is that there is strong reason Court responds to congressional hostility. Bu congressional hostility is the causal agent, the would be that judicial independence is weak o times of heightened political passion. Attacks on Judicial Independence Attacking the Court is an old congressional back to the early years of the nation. Murphy r close of Marshall's chief justiceship nearly all of to dominate the Court had been tried.8 Generally are ten types of proposals that have been made t of the Court or demonstrate congressional disple 8. Walter F. Murphy, Congress and the Court (Chicago: U Press, 1962), p. 63. 9. See, generally, Comment, "Congress Versus the Co Arsenal," Villanova Law Review 10 (1965): 347; Maurice S. C Proposals to Limit or Deny the Power of Judicial Review by the United States," 2 pts. Indiana Law Journal 4 (1929): 387 "Court-Curbing Proposals in Congress," Notre Dame Lawy mas Halper, "Supreme Court Responses to Congressional This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms JUDICIAL INDEPENDENCE 377 dude: (1) using the Senate's confirmation power t types of judges; (2) enacting constitutional amendm decisions or change Court structure or procedure; ( (4) withdrawing Court jurisdiction over certain subje the selection and removalprocess; (6) requiring extraordi for declarations of unconstitutionality; (7) allowing Supreme Court to a more "representative" tribunal; power of judicial review; (9) slashing the budget; (10) of the Court. The above list is not exclusive. Rather, kinds of actions that Congress has utilized over the the independence of the Court. While several of th serious questions of constitutionality, they have be and seriously debated. Congress has acted as if it dominate the Court. Court-attacking bills are not merely a histori While there has been little serious talk recently removing the power of judicial review or of requir more than five justices for holdings of unconsti other sorts of proposals have appeared. The late 1960s saw a flurry of Court-curbing bills and b introduced in the 1970s and early 1980s withdrawin jurisdiction over substantive areas such as school pr and busing. A resourceful Congress with a sense of belief that the Court is wrong can act. In order to test the strength of judicial indepen sional attempts to limit the power and independenc must be identified. Such attempts can be identified the following definition of attacks on the Court: legislation introduced in the Congress having as its pu either explicit or implicit, Court reversal of a decision or or Court abstention from future decisions of a given kind the structure or functioning of the Court to produce a part outcome.10 Tactics," Drake Law Review 19 (1970): 292. 10. This definition combines parts of several offered by "Congressional Responses to Supreme Court Rulings: The Int Politics," Journal of Public Law 14 (1965). 377, 382. See, also, "Impartiality, Separation of Powers, and Judicial Independ Studies in Law 9 (1965): 9, 38. This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms 378 THE REVIEW OF POLITICS Court-attacking bills are distinct from bills in a single decision on the grounds that the Cou congressional intent." While the latter are not ai power of the Court but only at correcting a interpretation of congressional statutes, Court-at deeper political chords. They are intended to dence of the Court and ensure that future decisions will be in accord with congressional preferences. Often they challenge decisions extending constitutional rights, decisions that are presumably immune from congressional action under the separation of powers doctrine. While in theory the distinction between the two may be hard to make, in practice the context makes the aim explicit.'2 Employing this definition, approximately 560 bills were identified. Relying on the temporal distributions of the bills, the intensity of the debate they generated, and the consensus of historians, nine periods of major Court-attacking activity were found. Table I presents the periods. Periods of Judicial Subservience There is virtual consensus among students of the courts that in three of these periods the Court succumbed to congressional pressure. As the reader will soon see, in each of these periods several of the indicators of congressional hostility were present and strong. First, all followed the electoral victory of parties hostile to the prior actions or feared potential actions of the Court. Second, 11. For an extensive compilation of data on recent statutory overrides, see William N. Eskridge, Jr., "Overriding Supreme Court Statutory Interpretation Decisions," Yale Law Journal 101 (1991): 331. 12. See, generally, Stumpf, "Congressional Responses to Supreme Court Rulings" (1965). There is evidence that members of Congress are aware of the context in which bills are aimed at the Court. Schmidhauser et al. studied 147 House and Senate roll call votes from 1945-1968 dealing with Court-Congressional relations. Comparing Court-curbing to simple reversal bills, they found that members of Congress differentiated between the two in their voting patterns (John R Schmidhauser, Larry L Berg, and Albert Melone, "The Impact of Judicial Decisions: New Dimensions in Supreme Court-Congressional Relations, 19451968," 1971 Washington Uniersity Law Review, p. 209). This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms JUDICIAL INDEPENDENCE 379 TABLE I HIGH FREQUENCY PERIODS OF COURT ATTACKS IN AMERICAN HISTORY Years Approximate # of bills 1802-1804 2 1823-1831 12 1858-1869 22 1893-1897 9 1922-1924 11 1935-1937 37 1955-1959 53 1963-1965 114 1977-1982 Total 106 366 SOURCE: For the period Stuart Nagel, "Court-Cu 18 (1965): gressional Library NOTE: joint 925. of the Index Congress's The or For Record count repor concurrent comparison across r tim in times of heightened not affect the analysis. important. Court. no What Also, relationship number of is im differences bills to the introdu increase in legislation i over the introduction o This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms 380 THE REVIEW OF POLITICS in each case opposition to those Court actions there was a large enough block of Court o passage of Court-curbing bills possible. Final opportunity for Court-supporters to play c involve interest groups in changing minds. Brie periods illustrates these conclusions. In the first period, 1802-1804, the story is recently triumphant Jeffersonians battled the trol of the federal government. The conflict rea the appointment of President Adams's so-calle particularly one Justice of the Peace, Marbury, was signed and sealed but never delivered. T angered by this last-minute attempt to deny victory, responded in kind, enacting legislat Supreme Court from meeting for 14 months nationwide circuit court system set up by th their last days in office (thus throwing Federal out of office). The end result was that the Court, opinion, did not order Jefferson to deliver the subsequent opinion, the Court upheld the abo courts and the subsequent loss of office of th who sat on them despite the constitutional guar for federal judges." Clearly, the Court was preferences of the Jeffersonians. The 1858-1869 period is one of the more st judicial acquiescence to congressional prefere ignited by the Supreme Court decision in Dred S the Missouri Compromise and holding that A were not citizens. Part of the 1860 presidential attacks on the Court and, after Lincoln's elec such as the Chicago Tribune and the New York Ti 13. Marbury v. Madison, 5 U.S. 49 (1 Cranch 137) (1803 Marshall did seize the opportunity to assert the power o political attention was paid to it. The focus was on the mor Republican battle, including the Court's holding that some branch were amenable to judicial oversight. (Robert G. M Supreme Court [Chicago: University of Chicago Press, 196 14. Stuart v. Laird, 5 U.S. 95 (1 Cranch 299) (1803). 15. 60 U.S. (19 How.) 393 (1857). This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms JUDICIAL INDEPENDENCE 381 to limit the independence of the judiciary. Court-c included the effective house arrest of one judge t issuing a writ, the abolition of the circuit court for Columbia and its recreation with new judges, and red size of the Court from 10 to 8, preventing President making three appointments. In the most celebrated episode, the Congres president's veto, enacted legislation aimed at prevent from deciding the case of William McCardle, a Mis paper editor who had been arrested and tried befo commission. Even though the Court had already he ment in the case, it ordered re-argument for the consider the effect of the congressional action. B Congress, the case was subsequently dismissed.'6 A clear that in this period the Court succumbed to preferences of a large number of members of Congr The final episode where Court acquiescence to c preferences is clear is the 1935-1937 period. Here, continually invalidated New Deal legislation. After slide election, FDR attacked the Court, charging that were old men with old ideas. He proposed to remedy by, in effect, packing the Court. Other Court-attack prepared as well. "As late as the final week of Mar scholar Leuchtenburg reports, "publications hostil conceded that it would pass."'7 The tension was f when Justice Roberts, who had consistently voted in year and a half to invalidate New Deal legislation, in several key cases,"' upholding the constitutionality lation (the so-called switch in time that saved th seemed to take the steam out of the attack on the Cou of the bills was enacted. However, their passage necessary as the Court had acquiesced to congressi 16. Ex Parte McCardle, 74 US. (7 Wall.) 506 (1869). 17. William E. Leuchtenburg, "The Court Packing Crisis of Teachers of Political Science 45 (1985): 12, 13. 18. The cases include West Coast Hotel Co. v. Parrish, 300 U.S. v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937), and Steward Ma 301 U.S. 548 (1937). In each case, Justice Roberts supplied the fift the legislation. The decisions were handed down in March, April, This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms 382 THE REVIEW OF POLITICS So badly beaten was the Court that it did not ho federal legislation unconstitutional as violative clause until 1976. The New Deal Court-attack provides a good opportunity to remove several obstacles that have traditionally prevented some from accepting this conclusion. First, a skeptic might argue that since the Court-packing plan was not enacted, and, enlarging the argument with a dose of history, the overwhelming majority of Court-attack bills have not been enacted, why should anyone expect the Court to alter its decisions? The reply to the skeptic is severalfold. First, the fate of legislation is never entirely dear. The relationship between the Court and the Congress is dynamic, and members of the Court can only dimly perceive the future. It may be that justices, fearful of successful congressional action, act to mollify their congressional opponents by altering their decisions. Although as the spring of 1937 blossomed it appeared increasingly likely that FDR's bill would not pass, political hostility to the Court was running high. As one commentator put it, it was "likely" that "some sort of curb on the Court would have emerged under a compromise situation.""'9 In the New Deal period, and in other periods of Court-attacking activity, a credible threat of passage is sufficient to limit the Court. Actual passage may not be required. This suggests that no legislation limiting the independence of the Court was passed in the New Deal period, and little has been passed in other periods, because the Court acquiesced to the Congress, removing the provocation. The lack of passage of Courtattacking bills, then, may be due in part to their effectiveness as a threat. The second obstacle to accepting the success of Congress in limiting the Court involves studying it not as a political institution but rather as a collection of individual policymakers exercising power. Where I have asserted that the Court reversed itself, some might argue that the cases are simply different, or that the seeds of the new doctrine can be found in the old cases. Relying on such assertions in the 1946 Presidential Address to the American Political Science Association, for example, Walter Dodd said "there is no basis for the assertion that favorable opinions by the Court from 19. Robert J. Steamer, The Supreme Court in Crisis: A History of Conflict (Amherst, MA: University of Massachusetts Press, 1971), p. 21. This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms JUDICIAL INDEPENDENCE 383 January to June of 1937 were occasioned by th and there seems to be a fair degree of certainty pendent of such influence."20 The problem i know the real reasons behind each individua since no two cases are identical, cases can alw on some level. With hindsight, the seeds of cur always be found in past decisions. The strikin Court's opinions in 1937, coupled with congr the pattern of correlation that I am developing that congressional attacks on the Court limit it Finally, it might be suggested that the Cour explained by changing judicial personnel. Howev case. In two of the three periods in which the C to congressional wishes (1802-1804, 1935-193 changes in personnel. In the other period of 1869, six justices left the bench and five new pointed by Lincoln. However, the five did not i Republican policies.21 Similarly, in the three dence, there were no changes (1963-1965), th 1924), and three changes (1893-1897). And in there were four changes (1823-1831), three c and one change (1977-1982). The variation acr and vote outcomes in cases during these periods changes in personnel are not crucial explanat Periods of Judicial Independence The first three periods discussed involved the Court avoiding decisions opposed by e backing-off or reversing decisions in respon hostility (the right side of Figure I). The next t just the opposite. Here, instead, the Court ig opposition and continued to develop the pri cases that engendered the opposition. Why w maintain its independence? 20. Walter Dodd, "The United States Supreme Court, Political Science Review 41 (1947): 1, 4, emphasis added. 21. E.g., Ex Parte Milligan, 71 US. (4 Wall.) 2 (1866), Cu (4 Wall.) 277 (1867), Ex Parte Garland, 71 US. (4 Wall.) 33 This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms 384 THE REVIEW OF POLITICS At issue in the 1893-1897 period was the r protector of corporate interests. Through the due process clause into a substantive check tion of business, the creation of the labor inj weapon, the near-emasculation of the Sherm the E. C. Knight case, and the invalidation of in the Pollock case, the Court angered ma campaign of 1896became the focus and battle views on the role of the Court, earning itself one of the two "great 'anti-Supreme Court can party politics."23 The Bryan campaign ad anti-Court planks as the anti-Court forces sp lists to the Bryan coalition. These planks represented a classic attack on the Court. In t failed because Bryan was decisively defeated political energy attacking the Court dissip In this period, the threat that legislatio would be enacted was shown to be hollow. demonstrated to Congress and Court alike Court's solicitous approach to business did port among voters. There was no need for the face of a hostile Congress and Executive b was pressed, in 1896, it turned out that the Executive weren't so hostile after all. The second period where the Court retained its independence in the face of congressional hostility occurred in 1922-1924. Here, the attack on the Court was led by the Progressives, upset over continuing Court support of business and hostility to state regula- tion. In 1923, for example, Representative Frear of Wisconsin proposed a right of appeal from the Supreme Court to Congress for holdings of unconstitutionality, and Senator Borah introduced legislation requiring the agreement of at least seven justices to invalidate a congressional statute. Not surprisingly, La Follette, running as the Progressive candidate for president, injected the 22. U.S. v. E. C. Knight, 156 US. 1 (1895), Pollock v. Farmers Loan and Trust Co., 157 U.S. 429 (1895), affd on rehearing, 158 US. 601 (1895). See, generally, Arnold Paul, Conservative Crisis and the Rule ofLaw (Ithaca: Cornell University Press, 1960). 23. Alan F. Westin, "The Supreme Court, the Populist Movement and the Campaign of 1896," Journal of Politics 15 (1953): 3, 38. This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms JUDICIAL INDEPENDENCE 385 issue into the 1924 presidential campaign. His platfo Court-curbing plank and the Progressives' anti- were clear. But, when the votes were counted, La F a distant third, with slightly less than 17 percent of and only 13 electoral votes. With his defeat came attacks on the Court. As with the 1893-1897 period ing failed because, after the election, Congress lack will to push it and the credibility of the threat wa The final period where congressional anger at little influence occurred in the years 1963-1965. At i decisions involving the banning of prayer in public requiring a "one person-one vote" standard for electoral districts.25 Apportionment was the issue t the hardest and in August 1965, the New York Tim that the role of the Supreme Court was "facing its threat in a generation."26 A number of bills were s ered to reverse the decision and one, simply re court jurisdiction over apportionment, passed the H of 218 to 175.? With the pressure mounting, Antho cluded that passage of the most important Court-cu Dirksen constitutional amendment, "might welldep President Johnson is reelected."" The crisis was indeed resolved by the electio "chose to make the judiciary" a "significant camp Johnson's landslide reelection helped to "decimat those most likely to join an anti-Court movement." 24. Engel v. Vitale, 370 U.S. 421 (1962), Abington School Distr U.S. 203 (1963). 25. Baker v. Carr, 369 U.S. 186 (1962), Wesberry v. Sanders Reynolds v. Sims, 377 U.S. 203 (1964). 26. Editorial, "Crisis for the Court," New York Times, 9 August 27. Emanuel Cellar, the Chair of the House Judiciary C another bill a "vicious attack on the Supreme Court." E. W. K Votes Ban on Court Power to Reapportion," New York Times, 20 28. Anthony Lewis, "Congress vs. The Court-Issue Joined Decision to Reapportion the State Legislatures Stirs Opposition 16 August 1964, sec. 4, p. 3. 29. Robert G. McCloskey, The Modern Supreme Court (Cambr University Press, 1972), p. 359. This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms 386 THE REVIEW OF POLITICS onstrated that hostility to the Court was n Court-attack period passed. The point, tho Congress came close to limiting the Court, th tively removed the issue. The threat of a suc attack vanished.30 In examining why the Court was able to these three cases, two of the indicators of come to the fore. First, in each period there w curbing the Court was a campaign issue. Ho the successful periods of Court-curbing, cases the forces seeking to limit the Court lo opposition to the Court was intense, it wa large number of officeholders or the public a to the Court, then, could have been that engendered was limited to a minority and it its cases without fear of politically significan Periods of Neither Independence Nor The preceding six periods of Court-curbin ered episodes in which the Court rather preferences into account by avoiding, backin decisions on the one hand, or, on the othe opposition and continuing. In pictorial ter deal with the two ends of the continuum of F three cases lie somewhere in the middle. In ea did react to congressional opposition but not or independent ways. 30. There is evidence to suggest that the Court act mollify congressional opposition. Every November si Review has compiled Supreme Court cases with ful government (both state and federal). They show tha decisions supporting the government had risen 14 per While the annual number of cases is large, ranging inclusion of state government, and the variety of issues evidence. However, it is in the direction supportive of t attacking. 31. While there was a good deal of opposition to the Court's apportionment decisions among officeholders, the public was rather oblivious to the issue. This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms JUDICIAL INDEPENDENCE 387 The earliest of these three periods, 1823-1831, s fight over states' rights. At issue was the power government vis-A-vis the states, particularly the under Section 25 of the Judiciary Act of 1789. Severa were introduced to limit the Court, ranging from votes of more than a mere majority of the justice statutes unconstitutional to outright repeal of Sectio a repeal bill was favorably reported out of the Ho Committee early in 1831, a bill that Chief Justice M would become law. The Court's reaction to these congressional attacks was to execute a withdrawal. It did not continue with Marshall's nation- alizing decisions. Charles Warren found it "evident that the Supreme Court itself took warning" and changed some of its procedures.32 For example, Marshall announced that only if an absolute majority of the Court (not just a majority of justices voting) agreed would any judgment on constitutional questions be announced. On the other hand, the Court did not renounce former decisions nor give up its power of judicial review over the acts of state institutions. Its response, then, was somewhere between the two extremes of independence and subservience. What explains this mixed response? The forces that were most upset by Court decisions were states-righters. However, they showed a curious inability to coalesce. The Court was never forced to face a united opposition. While opposition from one state's congressional delegation might be intense, others were not often willing to join. So, there was neither a large number of congres- sional opponents nor a successful coalition facing the Court." Similarly, although there was an election during the Court-curbing period, and Andrew Jackson was elected as a states-righter, his opposition to federal activity was selective. Members of the Court might well have believed that if they were careful not to galvanize opposition, if they retreated on some issues as detailed above, the Court could continue in the face of opposition. 32. Charles Warren, "Legislative and Judicial Attacks on the Supreme Court of the United States-A History of the Twenty-Fifth Section of the Judiciary Act," American Law Review 47 (1913): 1, 165. 33. McCloskey, American Supreme Court, p. 59. This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms 388 THE REVIEW OF POLITICS In the 1977-1982 period, bills were propose independence of the Court in a wide variety o underlying issue, however, was access to legal ab 1973, and reaching a peak in the years betwee variety of bills sought to nullify the Suprem decisions. During this period, the Court issue opinions that provide the raw material for the 1977 companion cases, reversing lower court d freed states from paying for nontherapeutic (no abortions or providing such abortion services in Then, in 1980, with 238 members of Congress fili basically in support of the Hyde Amendment, th constitutionality, drastically limiting federal tions, including most medically necessary ones.3 It is not obvious how these decisions can best b On the one hand, they did not detract from the c to obtain an abortion. In this sense, then, they c as the Court's ignoring opposition and contin other hand, the decisions did make legal abor obtain, especially for poor women. That is, the Co backing away from the logic of its holdings w women access to legal abortion. That guarantee w ful after these four decisions. This middle position can best be understood indicators of political preferences. For examp Presidents Carter and Reagan opposed abortio important steps, Reagan's rhetoric notwithstand Similarly, although the intensity of many abort their numbers were never large enough to effec Court. While the Hyde Amendment was repe none of the more powerful antiabortion bills remained a single issue and no coalitions were Thus, it is possible that by bowing to congressio access to legal abortion for poor women, mem might have felt they were mollifying opposition 34. Beal v. Doe, 423 U.S. 438 (1977), Maher v. Roe, 432 U.S. Doe, 432 U.S. 519 (1977). 35. Harris v. McRae, 448 U.S. 297 (1980). This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms JUDICIAL INDEPENDENCE 389 continuation of the right to abortion.-3 As with riod, then, moderate levels of opposition to the Court decisions somewhat, but only somewha gressional feelings. The final period of Court-curbing activity occurred in the years 1955-1959. Because it prese of characteristics, and because the factual patte cated and fascinating, it will be treated in more years 1955-1959, Court decisions in a number of desegregation, free speech and subversion, an dure, enraged many members of Congress and a on the Court was launched. Over 50 Court-c introduced into Congress as an alliance of seg warriors, and right-to-workers coalesced to cur In response, the Court chose its ground carefu free speech and subversion, the Court rever engendered opposition. Yet with desegregatio reform, key decisions were not reversed. Rat deciding cases, the Court maintained its grou only slightly. The Court sacrificed independenc trimmed its sails in the others, to preserve i forge ahead in those other fields later. In the free speech and subversion area, the C issued a number of decisions that gave prote pousing unpopular opinions." Two cases of p were Watkins v. U.S., and Sweezy v. New Hampsh Supreme Court overturned contempt convict testify before the House Un-American Activitie New Hampshire investigatory committee respec 36. By 1982, Supreme Court decisions supporting t slightly more than 10% over the period's low point. See sup the caveat on interpreting this data. 37. See, generally, Murphy, Congress and the Court. 38. Cases include Pennsylvania v. Ndson, 350 US. 497 (1 v. New Mexico, 353 U.S. 232 (1957), Konigsberg v. California exclusions; Jencks v. U.S., 353 U.S. 657 (1957)-access to go 39. 354 U.S. 178 (1957). 40. 354 U.S. 234 (1957). This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms 390 THE REVIEW OF POLITICS a number of other decisions, stimulated mu activity.41 The congressional response was quick and summer of 1957, a bill drafted by the Justice De and limiting the Jencks' holding was enacted. A bill, introduced by Senator Jenner in July, 1957 Court jurisdiction over subversion in five are of congressional inquiries, of the practices of st committees, and of the employment actions of s summer of 1958, in a story that reads more thriller than a legislative history, Court-curbing one vote, and a parliamentary maneuver, of pas the Senate.2 With the 1958 elections coming up ing bills were temporarily shelved. In the years 1958 and 1959, Court decisions b those that had so angered the Congress. Per examples occurred in Uphaus v. Wyman4aand where the Court upheld contempt convictions f erate with a New Hampshire investigatory c House Un-American Activities Committee respe these two cases seemed to reverse the earlier Sw decisions. Those who "applauded" the earli "dumfounded" by the latter ones.'5 As C. Herm "Barenblatt was before the same committee, wh under the same vague mandate and using th exposure and publicity-seeking which the Court Watkins."46 Two cold warriors saw Barenblat 41. See, Robert J. Steamer, "Statesmanship or Craftsm flict over the Supreme Court," Western Political Quarterly 1 Lytle, "Congressional Response to Supreme Court Decisio the School Segregation Cases," Journal of Public Law 12 (1 42. For a fascinating account of the bill's history, see Mu Court. 43. 360 U.S. 72 (1959). 44. 360 U.S. 109 (1959). 45. Adam Breckenridge, Congress and the Court (Linco Nebraska Press, 1970), p. 15. 46. C. Herman Pritchett, Congress Versus the Supreme Co University of Minnesota Press, 1961), p. 49. This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms JUDICIAL INDEPENDENCE 391 pletely reversed" Watkins.7 While there are di Sweezy and Uphaus in terms of the alleged politi the type of activity involved, and attempts h distinguish Watkins and Barenblatt, too much sh of them. The bottom line was that in respons preferences the Court effectively reversed its ea In the areas of employment, legislative invest exclusions, the Court retreated from its earlier p New York Times editorialized, "what Senator Jen achieve the Supreme Court has now virtually own."" In the area of free speech and subvers period shows the success of congressional atte independence of the Court.49 In the area of desegregation, however, the sto different. What started with great fanfare in 19 Board of Education5"petered out under intense c sure. The political response to the decision was n Congress, the "Southern Manifesto" pledged fight against desegregation, and governors and throughout the South lashed out at the Court profession, the American Bar Association and Association of State Attorneys General and the C Chief Justices criticized the Court.51 The Court heeded these attacks by avoiding m decisions until well into the 1960s. In education, 47. Roy M. Cohn and Thomas A. Bolan, "The Supreme C Report and Resolutions," Fordham Law Review 28 (1959): 23 48. Editorial, "A Regrettable Decision," New York Times, 49. Breckenridge, Congressand the Court;Harold W. Chase and Congress," Minnesota Law Review 44 (1960): 595; Roger F. Hill, "Court-Curbing, CourtReversals, andJudicial Revie Versus Congress," Law and Society Review 14 (1980): 309; M preme Court; Murphy, Congress and the Court; Pritchett, Congr Court; Bernard Schwartz, "The Supreme Court-October 195 Michigan Law Review 58 (1959): 165; Steamer, Supreme Cour Wasby, Anthony A. D'Amato, and Rosemary Metrailer, Deseg to Alexander (Carbondale, IL: Southern Illinois University P 50. 347 U.S. 483 (1954). 51. Louis H. Pollak, "The Supreme Court Under Fire," Jo (1957). 428. This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms 392 THE REVIEW OF POLITICS full opinion from Brown until the Little Rock cr the crisis passed, there was silence again until 1 Brown, public schools in the South remained pr barely one in a hundred African-American chil and secondary school with whites by 1964, ruling.4 Only after there was a major change in climate with the passage of the 1964 Civil Righ reenter the field.ss As Wasby et al. put it, af overreacting or feeling badly burned by the less an unseemly retreat from the public school edu was to last, with a few exceptions, over a dozen same pattern appeared in other civil rights are public facilities to anti-miscegenation laws.57 The point this history makes is, I think, acce of congressional hostility the Court did not power of Brown. In the civil rights area it avoi stepped issues. Only after the passage of the 19 did the Court reenter the field with vigor. Yet 52. Cooper v. Aaron, 358 U.S. 1 (1958). 53. Goss v. Board of Education of Knoxville, 371 U.S. 683 54. Southern Education Reporting Service, A Statistic Segregation--Desegregation in the Southern and Border Sta ern Education Reporting Service, 1967), pp. 40-44. 55. For full developmentof this argument, seeGerald N. Hope: Can Courts Bring About Social Change? (Chicago: Uni 1991), chap. 3. 56. Wasby et al., Desegration from Brown to Alexander, 57. The Court declined to hear any housing cases from its refusals had the effect of upholding segregation (e.g. Authority, 358 U.S. 928 [19591; Barnes v. City of Gadsden, generally, the refusal to hear Rice v. Sioux City Memorial Par (1954), after Brown, effectively upheld a cemetery's restri burial to Caucasians. In Dawly v. City ofNorfolk, Virginia, 3 to hear the case left restrooms in a state courthouse segre certiorari, In re Girard College Trusteeship, 357 U.S. 570 allowing a segregated school administered by the state to in Naim v. Naim, 350 U.S. 891 (1955), 350 U.S. 985 (1956), th an attack on state laws prohibiting inter-racial marriage. W numerous per curiam opinions striking down segregation ignored. This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms JUDICIAL INDEPENDENCE 393 speech and subversion, the Court did not rev that created the opposition. The final area where some congressional involved criminal law. Decisions like Jenck ordering a new trial for a 19-year-old Africa of rape, brought congressional ire. While it i definitively the effect of the congressional u rights area, the major decisions reforming cr Mapp v. Ohio," Gideon v. Wainwright,60 and M not come until the early and mid 1960s. T congressional hostility to tentative steps a procedure and the Court did not continue th Jencks and Mallory until the political climate The characteristics of the 1955-1959 per gam of factors associated with Court indep ence. As with periods of Court subservienc sition was both intense and numerous. Yet, independence, no single group of opponents to curb the Court. And, like the preceding action lay somewhere between the two extre period, for the most part, did not squarely a Court. Given these circumstances, it appears that things: it held off from further developi created opposition until political support other; and, it astutely picked apart the co acquiescing to the views of one faction. By ef free speech and subversion decisions, the C able to protect itself in civil rights and refo dure. By satisfying one part of its opposition less likely that bills curbing its other activiti Like its opponents, the Court appeared to politics. Yet, unlike them, it was able to keep 58. 59. 60. 61. 354 367 372 384 U.S. 449 (1957). U.S. 643 (1961). U.S. 335 (1963). U.S. 436 (1966). This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms 394 THE REVIEW OF POLITICS Thus, when the political climate changed in th was able to move ahead62 Conclusion This article set out to test the hypothesis of judicial independence, that courts are free to reach decisions without regard to the political preferences of elected officials. Nine periods of inten Court-curbing activity were identified and Court decisions during these periods were examined. In contrast to the hypothesis o judicial independence, in only three of the nine periods was th Supreme Court dearly independent of congressional preference In the remaining six periods, the Court either acquiesced to th Congress and reversed decisions, or backed-off to some extent to mollify congressional opposition. In times of opposition to Cou opinion, when the need for judicial independence is at is heigh such independence is seldom found. The hypothesis of judicia independence must be rejected.6 On the other hand, the news is not all bad. Even in three of th periods of intense congressional hostility to the Court, it did preserve its independence. Further, since only nine periods o intense congressional anger with the Court were identified, most of the time the Court appears free of political pressure. While th findings suggest that judicial independence is least likely to b found when it is the most necessary, most of the time the Court i not under pressure to reach decisions preferred by members of th other branches. Both critics and supporters of judicial indepen dence have grounds for celebration. The analysis allows for further refinement of this conclusion. At first glance the refinement may appear obvious. Judicial independence is most likely to be found the more prevalent are fou 62. By 1959, decisions supporting the government had risen 14 percent ove the lowest figure in the 1955-1959 Court-attack period. See supra, note 30, pa ticularly the caveat on interpreting this data. 63. Cf., William Lasser, The Limits of Judicial Power: The Supreme Court i American Politics (Chapel Hill, NC: University of North Carolina Press, 1988), p 262, who argues that the Supreme Court has "always been largely invulnerable political assault." However, he never offers a definition of judicial independenc and at times his argument is contradictory. This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms JUDICIAL INDEPENDENCE 395 conditions. When congressional and presidenti a Court component and result in defeat for oppon when opponents are few in number and unabl others, and when opposition to the Court is n judicial independence is most likely. On the ot independence is least likely to occur when ele and the presidency bring Court opponents to o nents are many in number and/or able to coalesc when opposition is intensely felt. Table II highligh Taking the indicators one at a time, it has been election occurs within or just before a Court-attac the election results may determine the Court's r the periods 1802-1804,1858-1869, and 1935-193 brought politicians hostile to the Court to pow successfully dominated. On the other hand, in 1897, 1922-1924, and 1963-1965, elections weak Court, lessening the threat of successful action. I Court maintained its independent course. An 1823-1831,1955-1959, and 1977-1982, when electio squarely respond to the issue of the Court, the C congressional opposition by taking a middle cour pendence and subservience. Interestingly, it does not appear necessary for be an issue in election campaigns for elections to role. Changes in the ideological make-up of th Executive appear sufficient. In part, this may cans know little about the Court. Thus, for exam ire over the reapportionment decisions was no sentiment since it turned out that the genera unaware of the decisions. However, where pub the Court and/or recent decisions is strong, e take on added importance. With number of opponents, as Table II summa ous seems to be the case. When faced with m 1802-1804, 1858-1869, and 1935-1937, the Cour When opponents were few, as in 1893-1897 an pendence was maintained. And, when the num was somewhere in between, other variables cam Variance in the intensity of opposition play role. To start, there are no instances on the This content downloaded from 134.74.20.15 on Tue, 03 Jul 2018 14:20:12 UTC All use subject to http://about.jstor.org/terms 396 THE REVIEW OF POLITICS TABLE II A. Court Response to Court-Curbing Periods Independence Subservience 1893-1897 1823-1831 1802-1804 1922-1924 1955-1959 1858-1869 1963-1965 1977-1982 1935-1937 B. Court-Curbing Periods by Presence Indicator Range Election of Court Opponents No Unclear Yes 1893-1897 1823-1831 1802-1804 1922-1924 1955-1959 1858-1869 1963-1965 1977-1982 1935-1937 Number of Opponents Few < > Many 1893-1897 1823-1831 1802-1804 1922-1924 1955-1959 1858-1869 1963-1965 1935-1937 1977-1982 Intensity Low < > High 1823-1831 1802- 1893-1897 1858-1869 1922-1924 1935-1937 1963-1965 1955-1959 1977-1982 Likelihood of Coalitions forming Low < > Hi...
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