The Myth of the Imperial Judiciary: Why the Right is Wrong about the Courts

3 The Judiciary in History

The Judiciary in History It is a persistent theme of the Imperial Judiciary thesis that the power wielded by American courts over the past forty or so years is orders of magnitude beyond that exercised by courts for any sustained period ever before in our history. Recall Nathan Glazer’s declaration in “Towards an Imperial Judiciary?” on what judicial power has become: “The courts have truly changed their role in American life. . . . [They] are now far more powerful than ever before. . . . [They] now reach into the lives of the people , against the will of the people, deeper than they ever have in American history.”1 Max Boot tells us that, “because the law matters more” today, “what could have been shrugged off as a petty annoyance a hundred years ago—bad judges making bad decisions—today assumes the proportions of a much more substantial problem.”2 Similarly, federal appellate judge James L. Buckley has recently declared that, while “an inclination among federal judges to take policy into account is hardly new,” what is unique about recent decades “is the profound impact that a number of the [Supreme] Court’s more recent decisions have had on the social and political life of this country.”3 Further, when writers of the Imperial Judiciary school acknowledge the existence of judicial power in pre-Warren Court America, they spend a disproportionate amount of time focusing on particular cases that have come to be widely considered improvident or even disastrous exercises of the judicial function. More specifically, they make frequent reference to Dred Scott v. Sandford,4 the 1857 U.S. Supreme Court ruling that held that Congress had no power to halt the territorial expansion of slavery, the effect of which was to hasten, perhaps even guarantee, the outbreak of the Civil War. The ideological utility of this catastrophic ruling for Imperial Judiciary theorists is proved by the manner in which it is reflexively linked to Roe v. Wade,5 a practice begun a few days after the latter decision was issued when William F. Buckley termed Roe “the Dred Scott decision of the twentieth century.”6 The linkage is typically followed by a statement like 3 86 Gary McDowell’s assertion that “Dred Scott did for the moral issue of slavery what Roe did for the moral issue of abortion. Each case sought to cut off public debate once and for all over the vexing moral questions involved .”7 But there is vastly more to the history of American judicial power than Dred Scott. To be sure, thoughtful commentators like Glazer do note that, more than handing down the occasional landmark decision, the judiciary had experienced “activist cycles” prior to the era of the Warren Court.8 But this is still an inadequate expression of the actual record of the exercise of judicial power in the American polity. The fact is that judicial power has never for any sustained period been marginal in American political life. It is the purpose of this chapter to consider three broad instances of judicial dynamism in our history that occurred before the relatively familiar history of the judiciary’s role in the American polity since the New Deal. These are: (1) the role of American courts in shaping a national economic order during the first half of the nineteenth century, (2) the judicial evisceration of the amendments added to the U.S. Constitution in the wake of the Civil War, and (3) the judicial response to the rise of the American labor movement. I have chosen these three instances because, with the arguable exception of the second, they are little discussed outside academic works, which I think is highly unfortunate. Once one comes to understand that courts have often exercised a substantial influence upon great social and political questions, it becomes impossible to hold that judicial power sprang fully grown from the forehead of Chief Justice Warren. The Nineteenth-Century Revolution in the Common Law As already noted, Alexis de Tocqueville expressed the view that American judges wielded “immense political power.”9 In fact, at the time de Tocqueville wrote, courts were one of the few cohesive governmental institutions in an American polity whose most salient feature was institutional minimalism. In their historical contentions regarding judicial power, Imperial Judiciary theorists tend to focus almost exclusively upon the operation of the federal courts, and especially upon their exercise of judicial review . Nineteenth-century judicial power, however, was centered in the state courts, and here, as the current Chief...