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The Resilience of MARBURY v. MADISON:

Why Judicial Review Has Survived So Many Attacks

William G. Ross*
TABLE OF CONTENTS
I. INTRODUCTION .......................................................................................... 733
II. A BRIEF HISTORICAL SURVEY OF ATTACKS ON JUDICIAL REVIEW............ 735
III. REASONS FOR THE FAILURE OF ATTACKS ON JUDICIAL REVIEW................ 746
A. Institutional Obstacles ...................................................................... 746
B. Divisions Among Critics of Judicial Review that Preclude
Agreement on Remedies .................................................................... 753
C. Reluctance of the Court’s Critics to Transfer Power to Congress,
the President, or the States................................................................ 757
D. Organized Defenses of Judicial Review by Elites ............................. 762
E. Broad Harmony Between the Court’s Decisions and Public
Opinion.............................................................................................. 766
F. The Court’s Flexibility in Transforming or Adapting its
Decisions to Conform to Public Opinion .......................................... 768
G. Availability of Viable Alternatives to Curbing Judicial Review........ 774
H. Recognition by the Court’s Critics that the Court can be an Ally..... 778
I. Dearth of Principled Opposition to Judicial Review......................... 784
J. The Widespread, Profound, and Enduring Public Respect for the
Court ................................................................................................. 787
IV. CONCLUSION ............................................................................................. 791
I. INTRODUCTION
Few features of the American constitutional system have received such
perennial and persistent vituperation as judicial review.1 Although the doctrine
of Marbury v. Madison2 has survived for two centuries and continues to
flourish, its detractors have been numerous, vocal, and prolific in their
proposals to curtail the Court’s powers. This perpetual controversy over
judicial review is inevitable insofar as the United States is the only nation
which has ever extended such significant power to its judiciary.3 The Court’s
* Professor of Law, Cumberland School of Law of Samford University. A.B.,
Stanford, 1976; J.D., Harvard, 1979.
1. As Professor Freund observed in 1958, “[r]esistance to the court has been a
persistent strain in American life from the beginning.” Paul A. Freund, Storm Over the
American Supreme Court, 21 MOD. L. REV. 345, 346 (1958).
2. 5 U.S. (1 Cranch) 137 (1803).
3. As Clarence Darrow once remarked in defending Senator Robert M. La Follette’s
proposal to curtail judicial review, “there is no other great government in the world where a
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734 WAKE FOREST LAW REVIEW [Vol. 38
power of judicial review is particularly contentious insofar as the Court’s
power to review the constitutionality of state legislation, developed by other
Marshall Court decisions,4 is even more sweeping than is its power to review
federal legislation since it implicates not only separation of powers but also
federalism.5
Of course, the Court’s power of judicial review is exaggerated in the
minds of many Americans (particularly lawyers and law students) since the
Court is not really the final arbiter of the Constitution but rather merely part of
what Louis Fisher has so felicitously described as an ongoing “constitutional
dialogue[]”6 among the three branches of federal and state governments,
special interest groups, voters, and all citizens.7 Judicial review
nevertheless looms large in this process insofar as it can alter, interrupt, stall,
and in some instances virtually terminate the dialogue. While the actual
number of federal and state statutes that the Court has nullified has been an
almost microscopic proportion of all legislation,8 the impact of judicial review
far exceeds the actual number of statutes nullified since the Court has
invalidated many high profile statutes, most recently the Violence Against
court is vested with the power to abrogate the laws of the legislative branch.” Press Release,
La Follette-Wheeler National Committee, Publicity Bureau (undated, 1924) (on file with the
Library of Congress, Manuscript Division as La Follette Family Papers, Series B, Box 205).
4. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 375-76, 442-43 (1821) (upholding
the constitutionality of a state criminal statute, and striking down a state supreme court
decision that had denied its validity); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 128, 136-39
(1810) (striking down state civil statute). Although these were the first decisions in which
the Court considered the constitutionality of state statutes, the pre-Marshall Court had struck
down a state law as violative of a treaty. Ware v. Hylton, 3 U.S. (3 Dall.) 199, 271-72, 277,
281, 284 (1796). Moreover, Justices Jay and Cushing, sitting in their capacity as circuit
court judges, had joined with a third judge in ruling as early as 1792 that a state law
impairing an obligation arising under a contract violated the Contract Clause. Champion v.
Casey (Cir. Ct. R.I. 1792).
5. As Oliver Wendell Holmes, Jr., famously remarked, “I do not think the United
States would come to an end if we [the Supreme Court] lost our power to declare an act of
Congress void. I do think the Union would be imperiled if we could not make that
declaration as to the laws of the several States.” OLIVER WENDELL HOLMES, JR.,
COLLECTED LEGAL PAPERS 295-96 (1920).
6. LOUIS FISHER, CONSTITUTIONAL DIALOGUES: INTERPRETATION AS POLITICAL
PROCESS 7 (1988).
7. Id. at 8.
8. The Supreme Court did not nullify any federal statute from Marbury until Dred
Scott, fifty-four years later. By 1920, it had invalidated only forty-one statutes. See ROBERT
H. JACKSON, THE STRUGGLE FOR JUDICIAL SUPREMACY: A STUDY OF A CRISIS IN AMERICAN
POWER POLITICS 40 (1949). The pace picked up during the 1920s, when the Court, under
the chief justiceship of William Howard Taft, nullified nineteen federal statutes. Id.
Nullification of state statutes has been more common, although the Court may have struck
down an even smaller percentage of these far more numerous laws. During the first 135
years of the Republic, the Court invalidated approximately 300 state statutes and a few
dozen municipal ordinances, among the hundreds of thousands enacted. See William
Marshall Bullitt, The Supreme Court and Unconstitutional Legislation, 10 A.B.A. J. 419,
419 (1924); Robert von Moschzisker, Judicial Review of Legislation by the Supreme Court,
9 CONST. REV. 67, 71 (1925).
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Women Act,9 which have had immense practical or symbolic importance to
persons who often have arduously labored for their enactment. Moreover, the
specter of judicial nullification can chill the enactment of state or federal
legislation, and the invalidation of one state law can effectively smother
similar statutes in other states. Therefore, as Felix Frankfurter pointed out in
1924 in lamenting the Court’s nullification of economic regulatory legislation,
“[a] numerical tally of the cases” in which the Court has exercised judicial
review “does not tell the tale.”10 Moreover, even decisions upholding the
constitutionality of federal and state legislation may provoke controversy
among critics of judicial review, who sometimes have found the Court’s role as
a “yea-sayer” no less presumptuous than its role as a “nay-sayer.”11 It is thus
not surprising that so many persons have proposed such a multitude of
methods for curtailing the power that the Court propounded (or at least is said
to have propounded) in Marbury.
II. A BRIEF HISTORICAL SURVEY OF ATTACKS ON JUDICIAL REVIEW
Although antagonism toward judicial review—or at least the manner in
which the Court exercises that review—has been a constant throughout the
Republic’s history, hostility has erupted at very different points along the
political spectrum. During the debates on ratification of the Constitution,
many anti-Federalists were proponents of a powerful judiciary since they
hoped that judges would help to prevent tyranny by the legislative and
executive branches of the new federal government.12 Similarly, Republicans
during the 1790s tended to favor judicial review since they opposed many of
the Federalist-inspired statutes which expanded federal power,13 including the
charter of the Bank of the United States,14 the Post Office Bill,15 the Carriage
Tax,16 and the Alien and Sedition Laws.17
The decisions of the Marshall Court expanding federal power and
protecting property rights transformed Jeffersonian Republicans and their
political descendants into prolific proponents of Court-curbing measures for
several decades until Dred Scott’s18 defense of slavery and its limitations on
federal power cast the Court in a new light. Dred Scott produced a suspicion
of the Court among advocates of federal power that lingered throughout
Reconstruction and generated some of the most significant efforts to reduce
9. See United States v. Morrison, 529 U.S. 598, 605, 617-18, 654-55 (2000)
(invalidating the Violence Against Women Act).
10. Felix Frankfurter, The Red Terror of Judicial Reform, NEW REPUBLIC, Oct. 1,
1924, at 112, reprinted in FELIX FRANKFURTER ON THE SUPREME COURT: EXTRAJUDICIAL
ESSAYS ON THE COURT AND THE CONSTITUTION 164 (Philip B. Kurland ed., 1970).
11. See ROBERT H. WIEBE, THE SEARCH FOR ORDER, 1877-1920, at 107 (1967).
12. ROBERT LOWRY CLINTON, MARBURY V. MADISON AND JUDICIAL REVIEW 73 (1989).
13. Id.
14. Acts to Charter the Bank of the United States, chs. X-XI, 1 Stat. 191, 196 (1791).
15. H.R. 245, 2d Cong. (1791).
16. Carriage Tax Act, 1 Stat. 373 (1794).
17. Sedition Act, ch. 73, 1 Stat. 596 (1798); Naturalization Act, ch. 54, 1 Stat. 566
(1798); Alien Act, ch. 58, 1 Stat. 570 (1798); Alien Enemies Act, ch. 66, 1 Stat. 577 (1798).
18. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
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736 WAKE FOREST LAW REVIEW [Vol. 38
federal judicial power. During the six decades following Reconstruction, when
the Court sometimes struck down federal and state economic regulatory
legislation, the Court acquired a new host of antagonists among populists,
progressives, and trade unions, who proposed an immense array of measures to
curtail judicial review. Hostility toward the Court quickly shifted to the right
end of the political pole after 1937, first because of the Court’s deference to
New Deal legislation, and later because of the Court’s decisions on school
desegregation, political subversion, reapportionment, criminal procedure, and
school prayer, making the Warren Court the target of some of history’s most
spirited efforts to curb judicial review. During the blurry period of the Burger
and Rehnquist Courts, hostility toward the Court has surfaced at various points
along the political spectrum, but the right-end has tended to produce most of
the Court-curbing measures.
Although relatively few of even the Court’s most ferocious critics have
ever dared to advocate the complete abolition of judicial review, a few
prominent Americans have frontally assaulted the doctrine. In reaction to a
Supreme Court decision invoking the Contracts Clause to strike down an
Illinois statute protecting debtors from land foreclosures,19 an Illinois senator
in 1846 proposed an amendment to prohibit the Court from invalidating any
state or federal law.20 During the late nineteenth century, populist leader
James B. Weaver and Oregon Governor Sylvester Pennoyer attacked judicial
review as an usurpation of power.21 In the wake of Lochner,22 a number of
progressives, socialists, and labor leaders revived the usurpation theme.23 At
its conventions in 1919 and 1921, the American Federation of Labor (“AFL”)
advocated outright abolition of the Supreme Court’s power to review the
constitutionality of any state or federal legislation.24 In 1912, the platform of
the Socialist Party, which won six percent of the presidential vote, advocated
19. Bronson v. Kinzie, 42 U.S. 311, 312-13, 321-22 (1843).
20. 2 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 105 (1926).
21. See JAMES B. WEAVER, A CALL TO ACTION: AN INTERPRETATION OF THE GREAT
UPRISING, ITS SOURCE AND CAUSES 67, 74-75, 132-35 (1892) (calling for abolition of
judicial review or at least its significant modification); Sylvester Pennoyer, The Case of
Marbury v. Madison, 30 AM. L. REV. 188, 197-201 (1896); Sylvester Pennoyer, The Income
Tax Decision, and the Power of the Supreme Court to Nullify Acts of Congress, 29 AM. L.
REV. 550, 551-52 (1895).
22. Lochner v. New York, 198 U.S. 45, 63-64 (1905) (striking down New York statute
limiting hours of bakers), overruled in part by Ferguson v. Skrupa, 372 U.S. 726 (1963);
Day-Bright Lighting Inc. v. Missouri, 342 U.S. 421 (1952).
23. See, e.g., GUSTAVUS MYERS, HISTORY OF THE SUPREME COURT OF THE UNITED
STATES passim (1918); J. ALLEN SMITH, THE SPIRIT OF AMERICAN GOVERNMENT: A STUDY
OF THE CONSTITUTION: ITS ORIGIN, INFLUENCE AND RELATION TO DEMOCRACY 89-124
(1911); L.B. Boudin, Government by Judiciary, 26 POL. SCI. Q. 238, 248, 264 (1911);
William Trickett, The Great Usurpation, 40 AM. L. REV. 356, 368-76 (1906).
24. REPORT OF PROCEEDINGS OF THE FORTY-FIRST ANNUAL CONVENTION OF THE
AMERICAN FEDERATION OF LABOR 125 (1921); REPORT OF THE PROCEEDINGS OF THE THIRTYNINTH
ANNUAL CONVENTION OF THE AMERICAN FEDERATION OF LABOR 97 (1919). For
discussion of these proposals, see WILLIAM G. ROSS, A MUTED FURY: POPULISTS,
PROGRESSIVES, AND LABOR UNIONS CONFRONT THE COURTS, 1890-1937, at 171-72, 182
(1994).
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abolition of the Court’s power to review federal legislation.25 Similarly, Chief
Justice Walter Clark of North Carolina, a longtime scourge of the federal
judiciary, publicly advocated abolition of the Court’s power of judicial review
in a series of speeches and articles between 1914 and his death in 1924.26
Influenced by Clark, Senator Robert L. Owen of Oklahoma introduced two
joint resolutions in 1917 forbidding federal judges from declaring any act of
Congress unconstitutional and providing that any judge who presumed to
exercise judicial review would forfeit his office pursuant to the constitutional
requirement of judicial “good behavior.”27
A few critics of judicial review have advocated restrictions only on lower
courts. In 1907, the AFL adopted a resolution to deny lower state and federal
courts the power to review state and federal legislation and to exclusively vest
judicial review in state supreme courts and in the U.S. Supreme Court.28
Between 1907 and 1909, four bills were introduced in Congress to deny the
lower federal courts power to invalidate an act of Congress,29 three of which
also would have deprived the lower federal courts the power to nullify state
legislation.30
Since the Court’s power to review the constitutionality of state statutes
implicates both judicial power and federalism, it is not surprising that efforts to
abolish the Court’s review of state legislation have been more common, at least
during the early years of the Republic. The preferred method was repeal of
section 25 of the Judiciary Act of 1789, permitting the Court to hear appeals
from state cases in which a federal right had been denied.31 In 1914, however,
discontent among progressives over nullification of state regulatory legislation
by state courts pursuant to the Fourteenth Amendment’s due process clause
generated a successful movement to expand the Court’s power by permitting it
to hear appeals from state decisions that upheld federal rights.32
25. 1 NATIONAL PARTY PLATFORMS, 1840-1956, at 188-90 (Donald Bruce Johnson &
Kirk H. Porter eds., 1956).
26. See, e.g., 2 THE PAPERS OF WALTER CLARK, 1902-1924, at 576-92 (Aubrey Lee
Brooks & Hugh Talmage Lefler eds., 1950); Walter Clark, Back to the Constitution, 50 AM.
L. REV. 1, 13-14 (1916); Walter Clark, Back to the Constitution, 3 VA. L. REV. 214, 225-26
(1915). Clark did not oppose judicial review by state judges and indeed exercised this
power himself on some occasions during his long tenure on the Supreme Court of North
Carolina, although he urged judicial restraint in various dissents from opinions striking
down progressive legislation. See William G. Ross, Walter Clark of North Carolina:
Antagonist of the Federal Judiciary, 3 J. S. LEGAL HIST. 1, 17-21 (1994).
27. S.J. Res. 195, 64th Cong. (1916); S.J. Res. 193, 64th Cong. (1916).
28. The Right to Declare Laws Unconstitutional, AM. FEDERATIONIST, Jan. 1908, at
28.
29. H.R. 4324, 61st Cong. (1909); H.R. 10479, 60th Cong. (1907); H.R. 4917, 60th
Cong. (1907); H.R. 3926, 60th Cong. (1907).
30. H.R. 4324; H.R. 10479; H.R. 4917; see also ROSS, supra note 24, at 80-84.
31. See Maurice S. Culp, A Survey of the Proposals to Limit or Deny the Power of
Judicial Review by the Supreme Court of the United States—II, 4 IND. L.J. 474, 483 (1929);
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 (pts. 1-2), 47 AM. L. REV.
1, 2-4, 163-65 (1913).
32. See ROSS, supra note 24, at 80-81. For a discussion of the history of the Judiciary
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Hardly less radical than proposals for abolition of judicial review have
been proposals to permit some type of appeal from the Court’s decisions.
Even before the Supreme Court was constituted, the ratifying conventions of
Massachusetts and New York adopted resolutions to permit persons aggrieved
by Supreme Court decisions to petition the President for the appointment of a
commission to review the Court’s decision.33 Although these resolutions did
not specifically mention judicial review, they may have reflected a fear of
judicial tyranny arising out of the Court’s power to review the constitutionality
of legislation, a power that was widely discussed during the ratification period
and anticipated by The Federalist.34 Similarly, the Supreme Court’s
nationalizing decisions, particularly McCulloch v. Maryland,35 provoked
Senator Richard M. Johnson of Kentucky in 1821 to propose a constitutional
amendment to confer appellate jurisdiction on the U.S. Senate in any case in
which the Court had questioned the laws or constitution of a state.36
In the wake of Dred Scott, an abolitionist senator urged Congress to
consider abolishing the Court and replacing it with a new Court tailored to
Congress’s specifications.37 Later, during Reconstruction, Senator Davis of
Kentucky proposed an amendment to create a new tribunal to decide
constitutional issues involving both the federal government itself and the
relationship between the federal government and the states.38 The new court
would have consisted of one member from each state, appointed by the state,
and the court would have made decisions by majority vote.39 It is ironic that
Congress’s most successful effort to abolish part of the federal judiciary—its
abolition of circuit courts in its repeal of the Judiciary Act of 1801—occurred
before Marbury.40
Several prominent antagonists of the Court have advocated plans to
Act of 1914, see Edward Hartnett, Why Is the Supreme Court of the United States Protecting
State Judges from Popular Democracy?, 75 TEX. L. REV. 907 (1997).
33. Maurice S. Culp, A Survey of the Proposals to Limit or Deny the Power of Judicial
Review by the Supreme Court of the United States (pt. 1), 4 IND. L.J. 386, 387-88 (1929).
34. Id. at 387-89; see also THE FEDERALIST NO. 78, at 401, 403 (Alexander Hamilton)
(George W. Carey & James McClellan eds., 2001) (stating that the independence of the
courts to declare legislation void is essential in a “limited constitution”); THE FEDERALIST
NO. 80, at 411-12 (Alexander Hamilton) (George W. Carey & James McClellan eds., 2001)
(claiming that the judicial authority ought to extend to cases arising out of legislation passed
pursuant to the Constitution).
35. 17 U.S. (4 Wheat.) 316, 421 (1819) (holding that federal legislative authority
extends to matters necessary to fulfill its enumerated powers).
36. Culp, supra note 33, at 388-89. Similar proposals were made in Congress again in
1822 and 1826. Id. at 389.
37. CONG. GLOBE, 37th Cong., 2d Sess. 26 (1861).
38. Culp, supra note 33, at 390.
39. Id.
40. The 1802 Amendatory Act abolished the newly created circuit courts, forcing the
Justices to resume their onerous circuit-riding duties, and postponed the Court’s convocation
for six months, effectively abolishing the 1802 term. See 2 GEORGE LEE HASKINS &
HERBERT A. JOHNSON, THE OLIVER WENDELL HOLMES DEVISE: HISTORY OF THE SUPREME
COURT OF THE UNITED STATES, FOUNDATIONS OF POWER: JOHN MARSHALL, 1801-15, at 163-
68 (1981).
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permit Congress to override Supreme Court decisions.41 The most widelydiscussed
proposal, propounded in June 1922 by Senator Robert M. La Follette
of Wisconsin, would have enabled Congress to reverse by a two-thirds vote
any Supreme Court decision that invalidated a federal statute.42 La Follette’s
proposed amendment received the overwhelming endorsement of the nation’s
largest labor organization, the AFL,43 and inspired a plethora of commentary
among lawyers and politicians. La Follette’s failure ever to embody his
proposal in actual legislation for an amendment suggests that he recognized its
impracticability.44 Although La Follette at first highlighted this proposal in his
third-party bid for the presidency in 1924, sharp attacks by his Republican and
Democratic opponents caused him to increasingly soft-pedal the plan as his
campaign progressed.45 A bill introduced in the House in 1923 by a Wisconsin
congressman that embodied La Follette’s proposal and that also would have
permitted a two-thirds vote to override Supreme Court decisions striking down
state legislation never was reported out of committee.46
Another perennially favorite proposal has been the requirement of a
concurrence of a super-majority of Justices in any decision invalidating an act
of Congress. A spate of such measures was proposed during 1823-24. Senator
Richard M. Johnson of Kentucky sponsored a bill to require unanimity in
judicial review of federal or state statutes,47 and Senator Martin Van Buren of
New York and other critics of the Court favored legislation to require the
concurrence of five of the seven Justices in decisions striking down state
legislation.48 The idea was revived during Reconstruction, when the House
actually passed a bill, subsequently rejected by the Senate, which would have
required a two-thirds majority to nullify an act of Congress.49 In the wake of
the Court’s five-to-four decisions nullifying the federal income tax, a bill was
introduced in Congress in 1896 to require unanimity in any decision
invalidating a federal statute. Several super-majoritarian bills were introduced
between 1911 and 1923.50 The most widely discussed proposal was advanced
41. In 1895, for example, a former congressman called for a constitutional amendment
to permit Congress to reenact federal statutes that the Supreme Court had invalidated.
James M. Ashley, Should the Supreme Court Be Reorganized?, THE ARENA, Oct. 1895, at
221-22.
42. ROSS, supra note 24, at 196. For a detailed discussion of La Follette’s proposal
and the reaction to it, see id. at 193-217.
43. REPORT OF PROCEEDINGS OF THE FORTY-SECOND ANNUAL CONVENTION OF THE
AMERICAN FEDERATION OF LABOR 241-42 (1922). The AFL endorsed the amendment again
at its next convention. REPORT OF PROCEEDINGS OF THE FORTY-THIRD ANNUAL CONVENTION
OF THE AMERICAN FEDERATION OF LABOR 35-36, 265 (1923).
44. ROSS, supra note 24, at 197.
45. See id. at 260-84.
46. H.R.J. Res. 436, 67th Cong. (1923). The resolution, introduced by Republican
James A. Frear, also would have granted Congress the power to enact a statute for the recall
of federal judges and would have given Congress the power to impose supermajoritarian
requirements on Supreme Court decisions.
47. Culp, supra note 33, at 392.
48. Id.
49. Id. at 395.
50. In 1911, Senator Jonathan Bourne, Jr., introduced a bill to require unanimity in any
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740 WAKE FOREST LAW REVIEW [Vol. 38
in 1922 by Senator William E. Borah of Idaho, who introduced legislation to
require the concurrence of at least seven members of the Court in the exercise
of judicial review of federal legislation.51 Representative Fiorello LaGuardia
of New York introduced Borah’s bill in the House52 and was one of the few
members of Congress to actively work for a supermajoritarian requirement.53
During the early twentieth century, some critics of the federal courts
advocated constitutional amendments to permit Congress to recall Supreme
Court Justices and other federal judges.54 In contrast to the parallel movement
for recall of state judges by popular vote, which resulted in the enactment of
recall statutes in several states, federal judicial recall proposals never received
serious consideration.55
Critics of judicial review also have frequently advocated constitutional
amendments to limit federal judicial tenure, or even to permit the election of
federal judges.56 Although these amendments would not curtail judicial
review, hostility toward the manner in which federal judges have exercised
their power of judicial review nearly always appears to have been the principal
factor motivating these proposals. Proponents of limitations on judicial tenure
and judicial election regularly have explained their belief that judges who
served for limited terms or were elected would be more responsive to the
public will and therefore would not be so inclined to nullify legislation enacted
by the popularly elected members of Congress or state legislatures.
One of the most eccentric proposals for curtailment of judicial review was
advanced in 1912 by former President Theodore Roosevelt, who argued that
voters should be permitted to reverse state court decisions that held statutes
unconstitutional under the state or federal constitutions.57 Roosevelt’s
Supreme Court decision involving the constitutionality of federal or state legislation. S.
3222, 62d Cong. (1911); see also W. Trickett, Judicial Nullification of Acts of Congress 185
N. AM. REV. 848, 848-52 (1907) (advocating unanimity in decisions nullifying federal
legislation); The Right to Declare Laws Unconstitutional, supra note 28 (advocating
unanimity on behalf of the AFL in any decision invalidating a state or federal statute).
51. See S. 4483, 67th Cong. (1923). For a detailed discussion of this proposal, see
ROSS, supra note 24, at 218-32.
52. H.R.J. Res. 721, 68th Cong. (1923). Republican Roy O. Woodruff introduced a
virtually identical bill at the same time. H.R. 697, 68th Cong. (1923).
53. See ROSS, supra note 24, at 231-32.
54. H.R.J. Res. 26, 63d Cong. (1913) (permitting recall of inferior federal judges); S.J.
Res. 130, 62d Cong. (1912) (permitting recall of inferior federal judges); S. 3112, 62d Cong.
(1911) (permitting recall of judges of Supreme Court and inferior federal courts). Under
Senator Owen’s proposal, S. 3112, Congress would not need to offer any reason for the
removal because, as Owen explained, to “assign reasons is to discredit the incumbent, while
removal without assignment of reasons is the mildest method of dealing with a public
servant whose service is no longer desired.” 47 CONG. REC. 3359 (1911) (statement of Sen.
Owen). Asserting that free citizens should “govern themselves without apology,” Owen
declared that “[t]he mere fact that the people do not like a judge and do not desire him to
serve them justifie[d] recall.” Id.
55. See ROSS, supra note 24, at 114-15.
56. For a discussion of the history of these proposals, see William G. Ross, The
Hazards of Proposals to Limit the Tenure of Federal Judges and to Permit Judicial Removal
Without Impeachment, 35 VILL. L. REV. 1063, 1066-77 (1990).
57. For a detailed discussion of the proposal and reactions to it, see ROSS, supra note
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proposal produced a paroxysm of obloquy from conservatives and troubled
even many of his fellow progressives.
In reaction to the Court’s use of substantive due process to nullify
regulatory legislation, a number of progressives and liberals during the early
twentieth century advocated the repeal of the Fifth and/or Fourteenth
Amendments.58
Although most attacks on judicial review have originated in Congress, a
coalition of state officials during the 1960s proposed a constitutional
amendment for the creation of a so-called “Court of the Union” composed of
chief justices of the fifty states, which could have reviewed any Supreme Court
decision affecting the states.59
Perhaps the most durable and formidable method of curbing judicial
review is limitation of the Court’s jurisdiction over discrete subjects. The most
notable example occurred during Reconstruction, when Congress limited the
Court’s power to consider habeas corpus petitions, which legislation the Court
upheld in McCardle.60 Since 1937, limitation of jurisdiction over specific
issues has been the most favored method of court-curbing among critics of the
Court.61 This may be attributable to the growth of respect for the Court and the
consolidation of judicial power, which has made judicial review too sacrosanct
and prescriptive for frontal attack by all but the most intrepid—and marginal—
members of Congress.62 Accordingly, the failure of comprehensive attacks on
judicial review may have convinced members of Congress that incremental
efforts to curb the Court’s power over specific subjects is more likely to be
24, at 130-54. Although Roosevelt emphasized that the plan was not intended to extend to
federal judicial decisions, he privately expressed his belief that the people would eventually
obtain the power to interpret even the federal Constitution. Letter from Theodore Roosevelt
to Herbert Croly (Feb. 29, 1912) (on file with the Library of Congress, Theodore Roosevelt
Papers, Series 3A, Reel 374).
58. See ROSS, supra note 24, at 66; Walter Clark, Some Defects in the Constitution of
the United States, 54 AM. L. REG. 263, 277-82 (1906). Writing in 1924, Felix Frankfurter
declared that the “due process clauses ought to go.” Frankfurter, supra note 10, at 167.
Frankfurter asserted that elimination of the due process clauses would relieve the Court of a
“contentiously political burden” and would free the Court “to meet more adequately the
jurisdiction which would remain and which ought to remain.” Id.
59. For a detailed discussion of this proposal, see William G. Ross, Attacks on the
Warren Court by State Officials: A Case Study of Why Court-Curbing Movements Fail, 50
BUFF. L. REV. 483, 529-62, 570-612 (2002).
60. Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514-15 (1868).
61. As one commentator observed in 1965, “[t]he broad historic trend has been away
from bills which would remove or circumscribe a broad area of the Court’s power and
toward those bills which would limit a small, more specific part of the Court’s functions.”
Stuart S. Nagel, Court-Curbing Periods in American History, 18 VAND. L. REV. 925, 941
(1965).
62. As Professor Nagel aptly explained:
More extreme bills in the earlier years may be attributable to the fact that in the
early nineteenth century, the role of the judicial branch of the government was
not yet established, and the obvious partisanship of some justices during the very
early years was a hindrance to the growth of the judicial myth.
Id. at 942.
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effective.63
The most significant efforts at jurisdiction-stripping were made during the
late 1950s in the wake of hostility toward the Court’s decisions on
desegregation and the rights of criminals and political subversives.64 Although
the Court’s critics did not dare mount any serious challenge to the Court’s
jurisdiction over segregation issues, they sponsored numerous bills to deprive
the Court of jurisdiction over cases involving the rights of political radicals and
criminal defendants. The most prominent of these measures, the Jenner-Butler
bill, which would have deprived the Court of jurisdiction over a broad range of
cases,65 came perilously close to success, going down to defeat in a forty-nine
to forty-one vote in the Senate in August 1958.66
While these bills did not seek any general curtailment of judicial review,
imposition of limitations on the Court’s jurisdiction may function as an ad hoc
curtailment of judicial review. Moreover, the threat of further limitations
could chill the Court’s exercise of judicial review even in those areas in which
it retained jurisdiction. New York bar leader Whitney North Seymour warned
that the Jenner bill “would ultimately destroy the integrity of judicial review”
since “no court can be completely independent if it is forced to feel that, when
its decisions are unpopular, it may be stripped of its right to hear and decide
similar cases.”67
Although the constitutionality of legislation to remove jurisdiction from
the Court pursuant to the Exceptions Clause of Article III remains a source of
intense controversy about which case law and scholarly commentary are in
conflict,68 Congress has continued to threaten the Court with deprivation of
63. Nagel has pointed out that “history has shown that bills removing comparatively
smaller amounts of the Court’s power have the greatest prospect of success. Astute
congressmen may well have taken note of this fact.” Id.
64. For studies of these bills, see CLIFFORD M. LYTLE, THE WARREN COURT AND ITS
CRITICS 24 (1968); WALTER F. MURPHY, CONGRESS AND THE COURT: AN ASSESSMENT OF
THE DELICATE BALANCE OF POWER BETWEEN CONGRESS AND THE SUPREME COURT AS IT
AFFECTS THE AMERICAN POLITICAL PROCESS 127-35 (1962); LUCAS A. POWE, JR., THE
WARREN COURT AND AMERICAN POLITICS 127-34 (2000); C. HERMAN PRITCHETT, CONGRESS
VERSUS THE SUPREME COURT 1957-1960 (1961).
65. As introduced in July, 1957, the Jenner bill would have deprived the Court of
appellate jurisdiction in cases involving the acts of congressional committees; the federal
employees loyalty program; state anti-subversion laws; action by state school boards
involving subversives; and state bar examinations. See LYTLE, supra note 64, at 24. These
areas had been the subject of controversial Supreme Court decisions. Id.
66. 104 CONG. REC. 18,687 (daily ed. Aug. 20, 1958). As Professor Murphy pointed
out, the opposition of forty-one senators to the motion to table the bill “was an impressive
demonstration of anti-Court strength,” especially considering that Roosevelt’s Courtpacking
plan in 1937 “had never been sure of more than thirty Senate votes.” MURPHY,
supra note 64, at 208.
67. Limitation of Appellate Jurisdiction of the U.S. Supreme Court, Hearing Before the
Subcomm. to Investigate the Admin. of the Internal Sec. Act and Other Internal Sec. Laws of
the Comm. on the Judiciary, U.S. Senate on S. 2646, 85th Cong. 353 (1958) [hereinafter
Hearing] (testimony of Whitney North Seymour).
68. See, e.g., Kline v. Burke Constr. Co., 260 U.S. 226, 233-34 (1922); The Francis
Wright, 105 U.S. 381, 385-87 (1881); United States v. Klein, 80 U.S. (13 Wall.) 128, 143-
48 (1871); Ex parte McCardle, 74 U.S. (7 Wall.) 506, 512-15 (1868); John Harrison, The
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jurisdiction over various subjects in a broad range of cases. During the first
session of the 98th Congress in 1986, for example, there were eleven bills to
curb federal court jurisdiction, including measures to remove or limit the
courts’ power to hear cases involving school desegregation, school prayer, and
abortion.69
Critics of the Court also have sometimes preferred to advocate more
histrionic measures which are calculated to capture the public imagination.
One favorite during the Warren Court period was impeachment of the Justices.
Although numerous critics of the Warren Court conceded that impeachment
was impracticable, calls for impeachment, particularly for the impeachment of
Warren himself, were more likely to draw mass attention to the grievances of
the Court’s critics than was opposition to the abstract doctrine of judicial
review. The preference for impeachment also demonstrates again that even
most critics of the Court since the New Deal have preferred to alter the
composition of the Court rather than curtail its power.
Even though nearly all legislation to curtail judicial review has perished in
the hopper or has been choked in committee, Congress has at least tacitly
overturned or at least modified some of the Court’s decisions. As one study
has aptly pointed out, “the Congress can and does attempt to reverse Supreme
Court rulings. Judicial review does not appear to be equivalent to judicial
finality.”70 A 1997 analysis found that either the House or Senate voted on
legislation to modify 125 of the 569 decisions in which the Court had
invalidated a federal law, state law, or executive order, and that Congress
successfully enacted legislation to reverse forty-one of these decisions.71
Congress also has regularly overturned or modified the Court’s statutory
interpretation decisions.72 If one counts this legislation, Congress by 1991 had
Power of Congress to Limit the Jurisdiction of Federal Courts and the Text of Article III, 64
U. CHI. L. REV. 203, 205 (1997); Ira Mickenberg, Abusing the Exceptions and Regulations
Clause: Legislative Attempts to Divest the Supreme Court of Appellate Jurisdiction, 32 AM.
U. L. REV. 497, 497-516 (1983); Robert J. Pushaw, Jr., Congressional Power Over Federal
Court Jurisdiction: A Defense of the Neo-Federalist Interpretation of Article III, 1997 BYU
L. REV. 847, 893 (1997).
69. Eugene Gressman & Eric K. Gressman, Necessary and Proper Roots of Exceptions
to Federal Jurisdiction, 51 GEO. WASH. L. REV. 495, 497 n.6 (1983). Commenting on these
and similar proposals, the authors aptly remarked that “[i]t is anomalous that, nearly two
hundred years after the ratification of the Constitution, the nation is threatened with
insidious attempts to unglue the supremacy that holds together this great charter of
government.” Id. at 530.
70. James Meernik & Joseph Ignagni, Judicial Review and Coordinate Construction of
the Constitution, 41 AM. J. POL. SCI. 447, 458 (1997).
71. Id. Similarly, Professor Monaghan once observed that “a wide variety of Supreme
Court pronouncements are subject to modification and even reversal through ordinary
political processes.” Henry P. Monaghan, The Supreme Court 1974 Term–Foreword:
Constitutional Common Law, 89 HARV. L. REV. 1, 2 (1975).
72. William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation
Decisions, 101 YALE L.J. 331, 332-33 (1991). As one study has aptly observed,
[C]ongressional response to Supreme Court [statutory] decisions is
healthy for both institutions and for democracy, as a whole . . . . A
responsive legislature means that the most democratically selected
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744 WAKE FOREST LAW REVIEW [Vol. 38
enacted more than 120 such statutes overriding Supreme Court decisions.73
Legislation overriding Supreme Court decisions, however, has usually
been enacted in a manner to avoid explicit confrontation with the Court, and
Congress has never directly nullified any significant exercise of judicial
review. After two centuries of persistent complaints and occasional fury,
Marbury therefore remains alive and well. The remainder of this Article will
consider why this is so.
III. REASONS FOR THE FAILURE OF ATTACKS ON JUDICIAL
REVIEW
A. Institutional Obstacles
Institutional obstacles have seriously impeded all efforts to curtail judicial
review. As Professor Choper once explained,
[A]ll the dominant forces of inertia—of maintenance of the status quo,
of inaction due to the frequent absence of cohesive majorities and to the
fragmentation of power—that are present in the national political
process work to safeguard the Court, and indeed are magnified in the
case of an attack on the Court’s historic independence.74
Recognizing that they would face an arduous and probably futile struggle,75
even the most ardent opponents of judicial review have generally recoiled from
active efforts to overturn or significantly abridge Marbury. Moreover, the
history of failed assaults on judicial power has increasingly chilled Courtcurbing
plans. Since the failure of Roosevelt’s Court-packing plan,76
antagonists of the Court have at least tacitly abandoned serious efforts to
directly confront Marbury.
institution is attentive to one that is less so. The judiciary can interpret
statutes, confident that their decisions are not frozen for all time, but are
subject to modification (or correction, if you will) by other branches of
government. In this way, the last word in statutory interpretation
belongs to no one institution or individual, which is as it should be.
Michael E. Solimine & James L. Walker, The Next Word: Congressional Response to
Supreme Court Statutory Decisions, 65 TEMP. L. REV. 425, 453 (1992).
73. Richard A. Paschal, The Continuing Colloquy: Congress and the Finality of the
Supreme Court, 8 J.L. & POL. 143, 203, 217-25 (1991).
74. JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS: A
FUNCTIONAL RECONSIDERATION OF THE ROLE OF THE SUPREME COURT 55 (1980).
75. As Senator Norris told Felix Frankfurter in explaining the persistent failure of his
proposals to abolish diversity jurisdiction, “victory comes only after long, strenuous effort.”
Letter from George Norris to Felix Frankfurter (Feb. 22, 1936) (on file with the Library of
Congress, Manuscript Division, Papers of George Norris, Box 119). Since even persistent
and significant efforts to abolish diversity jurisdiction have come to naught, opponents of
judicial review must recognize that they would face a Sisyphean task in trying to abolish or
curtail judicial review.
76. Michael Comiskey, Can a President Pack—or Draft—the Supreme Court? FDR
and the Court in the Great Depression and World War II, 57 ALB. L. REV. 1043, 1043
(1994).
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The Court’s modern antagonists therefore have conducted less ambitious
assaults on judicial power. Their favorite weapons have been constitutional
amendments to overturn judicial decisions and bills to curtail the Court’s
jurisdiction over specific subjects, both of which have sometimes come
perilously close to success. Since even these efforts have generally failed, the
Court’s critics have increasingly tried to change the Court’s decision without
altering its powers. As described in Section G infra, the favorite device
increasingly has been efforts to influence the appointment of federal judges.
The constitutional amendment process provides the most durable means
of curtailing the Court’s power or overturning specific decisions. As Professor
Lasser has explained, “the amendment process remains an attractive route for
the Court’s opponents [since] . . . amendments are dramatic, and they are sure
. . . . They can be justified as involving no affront to the Court, being merely an
expression of the popular will.”77
The amendment process, however, is also perhaps the most difficult
means of curtailing judicial review since Article V erects substantial hurdles
for any amendment, requiring an amendment to receive the concurrence of
two-thirds of the members of both houses of Congress and the approval of
three-quarters of the states.78 Not one of the many proposed amendments to
curb federal judicial power has ever made any significant progress, and few
amendments have nullified decisions of the Court. The amendment process
was successfully invoked early in the Republic’s history to overturn the very
first of the Court’s controversial decisions, which permitted states to be sued
by citizens of diverse states.79 The amendment process has subsequently
clearly reversed only three more of the Court’s decisions: Dred Scott,80 the
Court’s 1895 nullification of the federal income tax,81 and the Court’s
disapproval of federal legislation to require states to permit eighteen-year olds
77. WILLIAM LASSER, THE LIMITS OF JUDICIAL POWER: THE SUPREME COURT IN
AMERICAN POLITICS 236 (1988). As Lasser has explained, “[a]mending the Constitution is,
in this sense, a conservative gesture, since it recognizes the primacy of the Constitution and
tacitly acknowledges the legitimacy of judicial interpretation.” Id.
78. U.S. CONST. art. V also provides that Congress “shall call a Convention for
proposing Amendments,” upon application of the legislatures of two-thirds of the states, a
process that never has been used.
79. The Eleventh Amendment, added to the Constitution in 1798, overturned the
Court’s decision in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), a case which outraged
proponents of states’ rights by interpreting federal diversity jurisdiction to extend to lawsuits
against states by citizens of foreign states. Id. at 430-32, 448-49, 452-53, 465-67, 479-80.
80. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). The Fourteenth
Amendment in 1868 nullified Dred Scott by extending citizenship to African-Americans.
See U.S. CONST. amend. XIV. One could also argue that the Thirteenth Amendment’s
abolition of slavery and the Fifteenth Amendment’s extension of the franchise to African-
Americans also nullified Dred Scott. See U.S. CONST. amend. XIII; U.S. CONST. amend.
XV.
81. The Sixteenth Amendment of 1913 circumvented Pollock v. Farmers’ Loan &
Trust Co., 157 U.S. 429, 553, 586 (1895) and on rehearing, Pollock v. Farmers’ Loan &
Trust Co., 158 U.S. 601, 637 (1895), which held that a federal income tax was
unconstitutional. See U.S. CONST. amend. XVI.
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746 WAKE FOREST LAW REVIEW [Vol. 38
to vote,82 although one can argue that several other amendments also had the
effect of overruling Supreme Court decisions.83
The difficulty of the amendment process has therefore inspired at least as
much frustration as hope among the Court’s critics. As the social reformer and
Court critic Herbert Croly complained in 1914, the amendment process had
converted democracy into “a golden hoard, to which access could be obtained
only at rare intervals and after an heroic effort.”84 In our own time, Louis
Fisher has pointed out that “[a] successful amendment process requires an
extraordinary combination of social, economic, and political forces.”85
In several instances, the high hurdles of the constitutional amendment
process prevented the nullification of highly controversial decisions even
though opponents of the decisions were well organized and might well have
succeeded in enacting an amendment if the amendment process required
approval only by majority vote in Congress and a majority of the states.
The first major example was the movement for a child labor amendment
following the Court’s 1918 and 1922 decisions invalidating federal legislation
discouraging child labor. When the Court in Hammer v. Dagenhart86 in 1918
held that the first child labor statute exceeded Congress’s power to regulate
interstate commerce,87 some opponents of child labor accelerated their support
for a pending child labor amendment. Recognizing the obstacles of the
amendment process, however, the National Child Labor Committee and other
prominent forces in the child labor movement preferred to work for legislation
that was based on the taxing power,88 which opponents of child labor hoped
the Court would find more palatable. When the Court nullified the second
child labor law in Bailey v. Drexel Furniture Co.89 in 1922 because the tax was
not primarily intended to raise revenue,90 “advocates of federal child labor
reform lacked any practical alternative to a constitutional amendment.”91
During the spring of 1924, the House of Representatives approved a child labor
amendment by a vote of 297 to 69, and the Senate approved it by a vote of 61
to 23. A fierce series of campaigns waged at the state level by manufacturing
82. The Twenty-Sixth Amendment in 1971 overturned the Court’s decision in Oregon
v. Mitchell, 400 U.S. 112, 117-18 (1970). See U.S. CONST. amend. XXVI.
83. See HENRY J. ABRAHAM, THE JUDICIAL PROCESS: AN INTRODUCTORY ANALYSIS OF
THE COURTS OF THE UNITED STATES, ENGLAND, AND FRANCE 351-58 (4th ed. 1980) (arguing
that the Seventeenth, Nineteenth, and Twenty-Fourth Amendments may be construed as
negations of Supreme Court decisions).
84. HERBERT CROLY, PROGRESSIVE DEMOCRACY 237 (1914).
85. FISHER, supra note 6, at 204.
86. 247 U.S. 251 (1918).
87. Id. at 268, 277.
88. As an official of the Committee acknowledged, Americans were “not disposed to
change their Constitution unless they feel themselves forced to do it.” STEPHEN B. WOOD,
CONSTITUTIONAL POLITICS IN THE PROGRESSIVE ERA: CHILD LABOR AND THE LAW 187
(1968) (quoting Raymond G. Fuller, A Quest of Constitutionality, CHILD LAB. BULL., Nov.
1918, at 207).
89. 259 U.S. 20 (1922).
90. Id. at 34-44.
91. DAVID E. KYVIG, EXPLICIT AND AUTHENTIC ACTS: AMENDING THE U.S.
CONSTITUTION, 1776-1995, at 256 (1996).
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interests and conservatives prevented ratification of the amendment by more
than a handful of states.92 Another significant example of the arduousness of
the amendment process is the attempt to overturn the Supreme Court’s 1964
decision in Reynolds v. Sims93 through a constitutional amendment to permit
one house of state legislatures to be apportioned on a basis other than
population. The amendment twice received a majority vote in the Senate,94
falling several votes short of the requisite two-thirds approval. The
amendment’s failure underscored the harsh fact that a constitutional
amendment cannot succeed even when it enjoys the support of a substantial
majority of U.S. senators.
An even more dramatic example of the obstacles of the amendment
process is the persistent failure of school prayer amendments during the past
four decades. Widespread and highly emotional opposition to the Supreme
Court’s 1962 decision prohibiting state-sponsored prayer in public schools95
generated a plethora of proposals for constitutional amendments to overturn
the decision.96 An amendment to permit school administrators to allow
voluntary prayer in forms not prescribed by the state received the support of a
substantial plurality of the Senate in 1966, but fell a dozen votes short of the
requisite two-thirds majority in a 49 to 37 vote.97 A later movement for an
amendment failed when the House in 1971 voted by a margin of 240 to 162 to
discharge an amendment resolution from committee.98 Although the motion
carried by a large majority, its failure to attract the votes of two-thirds of the
House members caused the movement for the amendment to collapse.99
During the 1980s, a renewed movement for a school prayer amendment came
to naught even though it received at least rhetorical support from President
Reagan.100 The failure of the school prayer amendments is particularly
revealing of the difficulties of the amendment process because public opinion
polls indicate that a clear majority of Americans regularly have opposed the
school prayer decision.
Movements to overturn Roe v. Wade101 by constitutional amendment
likewise have failed. Although these have enjoyed considerable public
92. See id. at 257-59.
93. 377 U.S. 533 (1964).
94. In 1965, the Senate voted for the amendment by vote of 57 to 39. 111 CONG. REC.
19,373 (daily ed. Aug. 4, 1965). In 1966, the Senate voted for the amendment by a vote of
55 to 38. 112 CONG. REC. 8583 (daily ed. Apr. 20, 1966).
95. Engel v. Vitale, 370 U.S. 421 (1962).
96. See, e.g., JOHN HERBERT LAUBACH, SCHOOL PRAYERS: CONGRESS, THE COURTS,
AND THE PUBLIC 47-97, 141-54 (1969); Michal R. Belknap, God and the Warren Court: The
Quest for “A Wholesome Neutrality,” 9 SETON HALL CONST. L.J. 401, 444-50 (1999).
97. 112 CONG. REC. 23,556 (daily ed. Sept. 21, 1966). Among the fourteen senators
who did not vote, six announced that they would have supported the amendment if they had
been present and four said that they would have opposed it. LAUBACH, supra note 96, at
149.
98. KYVIG, supra note 91, at 385.
99. Id.
100. See id. at 451.
101. 410 U.S. 113 (1973).
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748 WAKE FOREST LAW REVIEW [Vol. 38
support, they also have encountered determined opposition, for Roe is more
popular than are the Court’s school prayer decisions. As Professor Kyvig has
pointed out, “[t]he requirements of Article V rendered constitutional
amendment impossible without a national consensus that did not exist on the
abortion issue.”102 Accordingly, as is explained in more detail in sub-section
G, opponents of abortion have concentrated their efforts on more practical, and
often successful, attempts to impose statutory limitations on the availability of
abortion.
Daunted by the hurdles of the constitutional amendment process, various
critics of judicial review early in the twentieth century advocated an
amendment to relax the process. In 1913, for example, La Follette proposed an
amendment to initiate the amendment process by majority vote of both houses
of Congress or the application of ten states and to permit ratification by a
majority of the electorate in the majority of states.103 Other similar bills, aimed
primarily or in part against judicial review, were introduced in Congress during
the height of the Progressive Era104 and again during the renewed controversy
over judicial review after the First World War.105 In an apparent effort to
ameliorate the effects of judicial review of regulatory legislation, the 1912
Progressive platform on which Theodore Roosevelt ran for president vaguely
advocated “a more easy and expeditious method of amending the Federal
Constitution.”106 With similar vagueness, the AFL at its 1922 convention
called for relaxation of the amendment process.107
When antagonism against judicial review flared up on a different point
along the political spectrum during the Warren Era, a well-organized group of
state officials proposed a constitutional amendment to permit two-thirds of the
state legislatures to amend the Constitution without participation by Congress
or any other agency.108 The amendment was intended in large part to enable
states to overturn Supreme Court decisions that nullified state laws. During a
102. KYVIG, supra note 91, at 450.
103. S.J. Res. 24, 63d Cong. (1913).
104. In 1912, a Kansas congressman sponsored legislation to permit automatic
consideration by Congress of a constitutional amendment to override any Supreme Court
decision that invalidated a federal law. H.R.J. Res. 351, 62d Cong. (1912). In 1912 and
again in 1914, bills were introduced to permit state legislatures to immediately consider
amendments to override any federal judicial decision that nullified a federal statute. Id.;
H.R.J. Res. 221, 63d Cong. (1914); S.J. Res. 142, 62d Cong. (1912); see also S.J. Res. 26,
63d Cong. (1913); S.J. Res. 20, 63d Cong. (1913); H.J. Res. 60, 63d Cong. (1913); H.J. Res.
375, 62d Cong., 49 CONG. REC. 941 (1913); H.R.J. Res. 350, 62d Cong. (1912); S.J. Res.
138, 61st Cong., 46 CONG. REC. 1631 (1911).
105. See, e.g., S.J. Res. 17, 68th Cong., 65 CONG. REC. 91 (1923); H.J. Res. 34, 68th
Cong. (1923); S.J. Res. 271, 67th Cong. (1923); S.J. Res. 14, 67th Cong. (1921); H.R.J. Res.
21, 67th Cong. (1921); H.R.J. Res. 12, 67th Cong. (1921); H.J. Res. 162, 67th Cong., 65
CONG. REC. 43 (1921); H.J. Res. 118, 67th Cong. (1921); H.J. Res. 29, 67th Cong. (1921);
H.J. Res. 306, 66th Cong. (1920); H.J. Res. 12, 66th Cong. (1919); S.J. Res. 8, 65th Cong.
(1917); H.R.J. Res. 315, 64th Cong. (1916).
106. 1 NATIONAL PARTY PLATFORMS, 1840-1956, supra note 25, at 175-76.
107. REPORT OF PROCEEDINGS OF THE FORTY-SECOND ANNUAL CONVENTION OF THE
AMERICAN FEDERATION OF LABOR, supra note 43, at 372-73.
108. See Ross, supra note 59, at 531-32, 534.
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period of only a few months in 1963, the amendment received the speedy
approval of both houses of the legislature in thirteen states and one house in
another four states before defenders of the Court sounded alarms that brought
the anti-Court juggernaut to an abrupt halt.109
Recognizing the difficulties of using the constitutional amendment
process to overturn judicial decisions, some critics of judicial review have
sought to circumvent the amendment process. Clark advocated abolition of
judicial review by congressional legislation rather than by the “slow process of
constitutional amendment,”110 which he believed that special interests would
thwart through opposition in the state legislatures.111 One of the reasons why
some critics of judicial review during the 1920s favored Borah’s supermajoritarian
plan over La Follette’s congressional override proposal was
because they believed that the former would not require a constitutional
amendment.112 As attacks on La Follette’s proposed amendment mounted
during the 1924 presidential campaign and La Follette attempted to distance
himself from it, he was reduced to assuring audiences that the rigors of the
amendment process made its enactment unlikely.113
Franklin Roosevelt’s choice of Court-packing rather than a remedy that
more fundamentally would have affected judicial power was based partly on
his pessimism about the viability of the amendment process, which he regarded
as intolerably slow and likely to be thwarted by business interests.114 Since
Congress clearly had the power to prescribe the number of Justices, no
amendment would be necessary. The myopia of Roosevelt’s proposal was
evident to many of the Court’s critics. As Interior Secretary Harold Ickes
observed, “in the end we must have an amendment. We can’t depend upon a
liberal majority of the Court in the future any more than we can now . . . [I]n
the long run there must be a clarification of constitutional powers in the
instrument itself.”115
In addition to the impediments of the constitutional amendment process,
critics of judicial review face formidable institutional obstacles in attempting
to enact ordinary legislation. Powerful committee chairs, for example, have
bottled up countless Court-curbing measures, and the danger of a presidential
veto always is a possibility even if the legislation somehow passes both houses
109. Id. at 547-49, 576-85.
110. 2 THE PAPERS OF WALTER CLARK, 1902-1924, supra note 26, at 592.
111. Id.
112. ROSS, supra note 24, at 222. Some critics of the Borah plan contended, however,
that section 2 of Article III does not permit Congress to interfere with the Court’s manner of
exercising its appellate jurisdiction once Congress confers that jurisdiction. Id. at 222-23.
113. Id. at 275-77.
114. WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL
REVOLUTION IN THE AGE OF ROOSEVELT 109-11, 123 (1995). Professor Leuchtenburg
explains that Roosevelt “was especially influenced by the tiresomely long, unsuccessful
saga of attempting to win ratification for the child-labor amendment.” Id. at 110; see also
JOSEPH ALSOP & TURNER CATLEDGE, THE 168 DAYS 28-29, 58 (1973) (noting that Roosevelt
held Court-packing to be the only immediate solution).
115. HAROLD L. ICKES, 2 THE SECRET DIARY OF HAROLD L. ICKES, THE INSIDE
STRUGGLE 1936-1939, at 65 (1954).
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750 WAKE FOREST LAW REVIEW [Vol. 38
of Congress.
The institutional obstacles that impede Court-curbing by the states are
even greater than those that hinder Congress. Although Article V provides that
two-thirds of the state legislatures can require Congress to call a convention for
proposal of constitutional amendments, this method of amending the
Constitution never has been used. Moreover, the states cannot curb federal
jurisdiction or limit judicial salaries or budgets. As Professor Cross has
pointed, “[t]he Court assumes few institutional risks when striking down state
legislation. State governments cannot directly punish or reward the Court.” 116
B. Divisions Among Critics of Judicial Review that Preclude Agreement on
Remedies
Opponents of judicial review have suffered from internal divisions which
have prevented them from uniting in support of a particular method of curbing
federal judicial power.
Such fissures were particularly apparent during the five decades of anti-
Court agitation that preceded Roosevelt’s 1937 Court-packing proposal.
Divisions within and between the labor and progressive movements hindered
unified strategies which would have posed more of a threat to the federal
judiciary than did the torrent of anti-Court rhetoric that generally substituted
for action among both movements.117
It was therefore not only wishful thinking that made Taft optimistic that
both political and personal divisions among the Court’s critics would fatally
weaken the anti-Court movement of the 1920s. Although both farmers and
organized labor were intensely critical of the Court, Taft privately observed
that “[t]he farmers really have no use for the labor unions, and the labor unions
have no use for the farmers.”118 As for the most vocal congressional critics of
judicial review, Taft perceived that “one of the safeguards of the existing status
is the personal ambition of the various would-be leaders of radicalism.
LaFollette must be first or he will not play at all. [Hiram] Johnson has the
same feeling, and hates LaFollette . . . and Borah is disgusted with both.”119
Opposition to Roosevelt’s proposal among many longtime critics of the
Court provides a classic illustration of the divisions that beset any movement
to tamper with judicial review. Rather than rallying around Roosevelt’s plan,
many liberals and the remnants of the Progressive movement proposed a
bewildering array of alternative proposals. Senator Norris, for example,
introduced legislation to require a two-thirds majority of the Court to invalidate
federal legislation,120 to limit judicial tenure,121 and to permit a direct vote on
116. Frank B. Cross, Essay, Realism About Federalism, 74 N.Y.U. L. REV. 1304, 1319
(1999).
117. ROSS, supra note 24, at 10-15.
118. Letter from William Howard Taft to Charles P. Taft (Sept. 10, 1922) (on file with
the Library of Congress, microformed on Taft Papers, Series 3, Reel 245).
119. Id.
120. S. Res. 1890, 75th Cong. (1937). Other members of Congress introduced similar
legislation. See, e.g., S.J. Res. 98, 75th Cong. (1937); H.R.J. Res. 496, 75th Cong. (1937);
H.R.J. Res. 372, 75th Cong. (1937); H.R.J. Res. 303, 75th Cong. (1937); H.R. Res. 5172,
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constitutional amendments.122 Meanwhile, Senator Borah proposed a
constitutional amendment to provide that due process restraints on the states
applied only to procedural issues.123 Other bills would have permitted
Congress to re-enact statutes that the Court had nullified124 and deprived lower
federal courts of jurisdiction over cases involving taxation, the general welfare,
or interstate commerce.125 Appalled at the refusal of longtime critics of the
Court to unite behind the first plan to enjoy presidential support, Ickes
complained that a “liberal is a man who wants what is unattainable or who
wants to reach his objective by methods that are so impracticable as to be selfdefeating.”
126 As discussed below in the next section, however, progressives
who opposed aggrandizement of presidential power had sound reasons for
opposing Roosevelt’s plan.
Divisions among critics of the Court were perhaps less pronounced during
the Warren Court era. In the 1950s, antagonism toward the Court among
segregationists at first represented no threat to the Court’s powers since
Brown127 and its progeny enjoyed widespread support outside the South.
When the Court began to hand down decisions that expanded the constitutional
rights of political subversives and common criminals, however, a formidable
anti-Court coalition was forged between northern conservatives and southern
segregationists.128 Attacks on the Court for its allegedly pro-Communist
decisions also provided “cover” for northern politicians who did not dare to
publicly express their misgivings about the Court’s desegregation decisions.129
Likewise, the Court’s decisions on subversives and criminals enabled southern
segregationists to sanitize their hostility toward the Court by basing it on
patriotism and “law and order” rather than on race.130
One interesting and often overlooked division among critics of the
Warren Court was the divergence of opinion between traditional statist
conservatives and libertarians. It is a curious fact that the Warren Court’s
restraints on governmental power appealed in many ways to the instincts of a
burgeoning libertarian movement that tended to identify itself more with the
right than the left. The differences between the statist conservatives and
libertarian conservatives were illustrated by reactions toward the Court’s 1958
decision prohibiting the State Department from denying passports to
75th Cong. (1937); H.R. 7154, 75th Cong. (1937).
121. S.J. Res. 103, 75th Cong. (1937). Similar bills included H.R.J. Res. 496, 75th
Cong. (1937), and H.R.J. Res. 393, 75th Cong. (1937).
122. S.J. Res. 134, 75th Cong. (1937).
123. S.J. Res. 92, 75th Cong. (1937).
124. S.J. Res. 80, 75th Cong. (1937); H.R.J. Res. 250, 75th Cong. (1937).
125. H.R. 4900, 75th Cong. (1937).
126. ICKES, supra note 115, at 74-77.
127. Brown v. Bd. of Educ., 347 U.S. 483 (1954).
128. See POWE, supra note 64, at 84-85.
129. See “Curbing” the Court, NATION, June 9, 1956, at 481-82.
130. Id.; see also POWE, supra note 64, at 85. Ultimately, however, the prominence of
segregationists in the anti-Court movement may have helped to ensure the defeat of efforts
to curb the Court’s jurisdiction. See infra sub-section I.
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Communists.131 While U.S. News & World Report editor David Lawrence
fumed that “[i]f the Supreme Court had ruled that treason now is lawful, it
could not have dealt a more devastating blow to the safety of the people of
America,”132 the Wall Street Journal applauded the decision for striking a blow
against “government by bureaucratic whim.”133 While few libertarian
conservatives may have had much natural solicitude for the racial minorities,
poor persons, left-wing activists, or criminal defendants who so often benefited
from the Court’s limitations on governmental power, libertarians instinctively
welcomed decisions that expanded personal liberties. Libertarian
conservatives, however, could find common cause with more traditional
conservatives in criticizing Warren Court decisions that expanded federal
power to protect citizens against abuse by state and local officials, particularly
those in which the Court applied federal standards to law enforcement. As
Barry Goldwater declared during the 1964 presidential campaign, “we don’t
want a Federal police force.”134
Like earlier anti-Court movements, Court-curbing efforts by critics of the
Warren Court tended to be diffuse, although the Court’s antagonists during this
period appear to have made conscious efforts to concentrate their energies on
specific plans. For example, the states’ rights organizations that sponsored the
proposed states’ rights amendments of 1963 urged state legislatures to adopt
the proposed amendments “without change and in a uniform manner which
will leave no question as to the intent of the several states.”135 Similarly, the
131. Kent v. Dulles, 357 U.S. 116, 117, 129-30 (1958).
132. David Lawrence, Editorial, Legalizing Treason?, U.S. NEWS & WORLD REP., July
18, 1958, at 100.
133. The Passport Decision, Editorial, WALL ST. J., June 18, 1958, at 12.
134. BARRY M. GOLDWATER, THE SPEECHES, REMARKS, PRESS CONFERENCES, AND
RELATED PAPERS OF SENATOR BARRY M. GOLDWATER, JULY 16-NOVEMBER 4, 1964, at 397
(1965). In some instances, however, fear of rapidly rising crime may have caused even
many libertarian conservatives to make common cause with “law and order” conservatives
in opposition to Warren Court decisions that were perceived as hobbling the police, even if
such decisions also helped to curb criminal investigations by federal agencies. Dan Smoot,
for example, acknowledged that
[c]onstitutionalists have long resented the federal government’s violations of
their Fourth Amendment protections against illegal searches and seizures—by
federal agents who (without any legal process) often rummage through a
taxpayer’s records, and disrupt the operations of his business, while on fishing
expeditions to discover some possible violation of a bureaucratic regulation.
Dan Smoot, The Forked Tongue, DAN SMOOT REP., July 14, 1969, at 111. Smoot
contended, however, that “constitutionalists” were “outraged” because the courts freed
“known criminals” who were prosecuted for serious crimes on the basis of evidence
accidentally discovered and seized without a warrant during legal searches for evidence of
less serious crimes. Id. Smoot likewise claimed that “constitutionalists” opposed forced
confessions, but were furious because the Court had freed criminals who “willingly and
voluntarily confessed their crimes.” Id.
135. Amending the Constitution to Strengthen the States in the Federal System, 36 ST.
GOV’T 10, 11 (1963) (emphasis in original) [hereinafter Amending the Constitution]. The
advocates of the amendments apparently emphasized the importance of uniformity because
previous attempts to call a constitutional convention “invariably foundered because the texts
of the proposed amendments were not uniform.” Walter Dean Burnham, Hobbling the
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Jenner-Butler bill represented an attempt by a broad spectrum of Court-curbing
advocates to unite behind a single piece of legislation.136 These sporadic
efforts at unity, however, did not prevent critics of judicial review from
continuing to advocate a plethora of other nostrums for reining in the Court.
Divisions among the Court’s critics likewise emerged during the early
1980s, when various conservative senators, particularly Jesse Helms and Orrin
Hatch, introduced bills to strip the Court of jurisdiction over various
controversial subjects such as school prayer and busing.137 These proposals
went too far even for Goldwater, who declared in 1982 that Court-curbing “is
not a conservative concept”138 and later complained that “[t]here is no clear
and coherent standard to define why we shall control the Court in one area but
not another.”139 Some of the most vigorous opponents of abortion opposed
Senator Hatch’s amendment to permit states to forbid abortion because they
favored an amendment to require states to prohibit it and feared that the
amendment would divide the anti-abortion movement.140
Divisions among critics of judicial review about both grievances and
remedies have also helped deprive anti-Court movements of the broad-based
leadership that they would need to succeed. Leadership alone, however, would
not necessarily guarantee success, as evidenced by the failure of Roosevelt’s
Court-packing plan, which Roosevelt presented when he was at the very height
of his political power.
C. Reluctance of the Court’s Critics to Transfer Power to Congress, the
President, or the States
The resilience of support for judicial review also reflects a reluctance to
transfer power from the Court to Congress, the President, or the states.
Various opinion polls during the past several decades have consistently
indicated that Americans have markedly greater respect for the Court than for
Congress, and generally more respect for the Court than for the Presidency.141
This is no new phenomenon. As the New York World observed in defense of
judicial review in 1924, “the American people have had, as a rule, more
confidence in their Supreme Court than in their average Congress.”142 At the
same time the Outlook remarked that “[i]t is a curious anomaly of popular
government that the representative branch should so often have failed in
reputation as compared with the judicial branch.”143 Even those Americans
Constitution, COMMONWEAL, Sept. 6, 1963, at 532.
136. S. R. 2646, 85th Cong. (1957).
137. MICHAEL KAMMEN, A MACHINE THAT WOULD GO OF ITSELF: THE CONSTITUTION IN
AMERICAN CULTURE 392 (1986).
138. Id.
139. Id.
140. KYVIG, supra note 91, at 450.
141. See JOHN R. HIBBING & ELIZABETH THEISS-MORSE, CONGRESS AS PUBLIC ENEMY:
PUBLIC ATTITUDES TOWARD AMERICAN POLITICAL INSTITUTIONS 31-33 (1995).
142. Is the Supreme Court Too Supreme?, LITERARY DIG., July 1, 1922, at 21.
143. The Attack of Senator La Follette on the Supreme Court, OUTLOOK, June 28, 1922,
at 368.
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who may trust Congress more than the Court do not necessarily trust Congress
so much more that they would be willing to transfer power from the Court to
Congress.
The use of Congress as a foil for Court-curbing efforts was particularly
evident during the attacks on judicial power during the Progressive Era, when
the Court’s defenders often warned that the danger of congressional tyranny
exceeded the threat of judicial abuse of power.144 Although critics of judicial
review argued that members of Congress were held in check by electoral
accountability,145 many opponents of curtailment of judicial review contended
that Congress was more accountable to special interests than to rank and file
voters. As one constitutional scholar argued in 1923, a “Congress dominated
by agricultural and industrial groups cannot be expected to consider
profoundly the Constitutional bearings of a bill” since so much legislation was
crafted to “to aid a ‘bloc’ or to curry favor with a highly-organized minority
which is powerful and often insolently dominating as a lobbyist.”146 Similarly,
while advocates of curtailment of judicial review contended that members of
Congress were as conscientious as judges and had better means of acquiring
relevant information about great public issues,147 conservatives argued that
politicians naturally were more sensitive to what Pennsylvania Chief Justice
Robert von Moschzisker described as the political “expediencies of the
moment.”148
Conservative defenders of the Court during the 1920s emphasized that the
Court was the ultimate guardian of personal liberties. In a widely-reprinted
1923 Saturday Evening Post article, Charles Warren listed twenty-five ways in
which Congress could disregard rights if La Follette’s plan were adopted,
including violation of all of the guarantees of the Bill of Rights and the
prohibitions against involuntary servitude, the taking of property for public use
without just compensation, and ex post facto laws.149 Conservatives insisted
that misuse of congressional power in the absence of judicial review was more
144. As Charles Warren concluded in his 1922 history of the Court, the liberties of
Americans were
[s]afer in the hands of the Judiciary than in those of the Legislature, and that if
either body is to possess uncontrolled omnipotence, it should be reposed in the
Court rather than in Congress, and in independent Judges rather than in Judges
dependent on election by the people in passionate party campaigns and on
partisan political issues.
3 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 476-77 (1924).
145. 66 CONG. REC. 7433 (1918) (statement of Sen. Owen).
146. Thomas J. Norton, The Supreme Court’s Five to Four Decisions, 9 A.B.A. J. 417,
418 (1923).
147. John J. Lentz, Leaflet 15, La Follette-Wheeler National Committee, Publicity
Bureau (undated, 1924) (on file with the Library of Congress, Manuscript Division as La
Follette Family Papers, Series B, Box 205). Lentz, a former member of Congress from
Ohio, supported La Follette’s proposal to permit Congress to override Supreme Court
decisions by a two-thirds vote.
148. Robert von Moschzisker, Judicial Review of Legislation by the Supreme Court, 9
CONST. REV. 67, 80 (1925).
149. Charles Warren, Borah and La Follette vs. the Supreme Court, NAT’L SEC.
LEAGUE, 1923, at 15, reprinted from SATURDAY EVENING POST, Oct. 13, 1923.
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than theoretical. “Congress would pass Acts it would not now attempt,”
warned one opponent of Court-curbing.150
A few opponents of curtailment of judicial review during this period
warned that Congress would trample upon economic freedom as well as
personal liberty. In 1923, for example, H.L. Mencken expressed revulsion
toward the Court’s renewed hostility toward regulatory legislation, but
cautioned with deliberate hyperbole that “a Congress free to work its wicked
will upon the Treasury and the people, absolutely unimpeded by checks or
balances, would be a curse almost too horrible to contemplate. In ten years
every citizen who was not a Government spy and licensed blackmailer would
be bankrupt and in jail.”151
Opponents of curtailment of judicial review during the 1920s often
expressed confidence that public distrust of Congress would doom proposals to
permit Congress to override Supreme Court decisions. As one writer observed,
“[a]ny citizen whose life, liberty and property were in jeopardy would rather
have his case tried before nine lawyer-judges whom he could look in the eye,
than before that vast, miscellaneous, political throng at Congress.”152 As
Court-curbing movements gathered momentum during 1923, Elihu Root
assured an increasingly fretful Chief Justice Taft that the Court’s “impregnable
defense” was “that it furnishes the only agency through which limitations can
be imposed on the power of Congress and state legislatures, all of which are
more unpopular than the court.”153
Republicans were so confident of the electorate’s faith that the Court
could protect liberty more effectively than Congress that they made attacks on
La Follette’s Court-curbing proposal the centerpiece of their 1924 presidential
campaign, when La Follette’s third-party Progressive candidacy threatened to
throw the election into the House of Representatives. As President Coolidge
warned in one of his rare campaign addresses, “[i]f the Supreme Court’s
authority should be broken down and its powers lodged with Congress, every
minority body that may be weak in resources or unpopular in the public
estimation, also every race and religious belief, would find themselves
practically without protection.”154 Similarly, Secretary of State Charles Evans
Hughes cautioned that if judicial review were curtailed, “everything you have,
the security of your person and life, would be held at the mercy of
Congress.”155 Concerted Republican attacks on La Follette’s proposal were
widely credited with helping to ensure Coolidge’s landslide election.156
150. Frank R. Savidge, Five to Four Supreme Court Decisions, 219 N. AM. REV. 460,
471 (1924).
151. H.L. Mencken, The Supreme Court, BALT. EVENING SUN, Nov. 19, 1923, at 17.
152. Robert E. Shortall, The Supreme Court and Congress, AMERICAN, Nov. 8, 1924, at
95.
153. Letter from Elihu Root, Jr. to William Howard Taft (Nov. 5, 1923) (on file with
the Library of Congress, Papers of William Howard Taft, Series 3, Reel 258).
154. Coolidge Assails La Follette Views on Supreme Court, N.Y. TIMES, Sept. 7, 1924,
at 1.
155. Hughes Answers Critics of Party, N.Y. TIMES, Oct. 5, 1924, § 2, at 1.
156. See KENNETH CAMPBELL MAC KAY, THE PROGRESSIVE MOVEMENT OF 1924, at 163
(1947) (“[T]he Supreme Court issue, more than anything else, was responsible for the ease
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Although conservatives sounded most of the alarms about congressional
tyranny during the anti-Marbury agitation of the 1920s, even many leftists
warned that curtailment of judicial review could threaten liberty. The Socialist
Call of New York predicted that removal of judicial restraints would aggravate
Congress’s reactionary tendencies.157 Similarly, an article in The Nation
warned that curbing judicial review would “remove a desirable check on the
domination of Congress by special interests, whether they be Agricultural
blocs, American Legions, or Anti-Saloon Leagues.”158
Similarly, many liberal academics and attorneys who deplored the Court’s
nullification of regulatory legislation expressed misgivings about transferring
power to Congress. Professor Edwin M. Bouchard of Yale Law School told La
Follette that “the breadth of your proposal has frightened many lawyers, and I
think perhaps justly so, for as between the competing claims of State and
Federal government in the exercise of power, it is proper that an umpire
determine the line between them and not leave this determination to one of the
parties to the issue.”159
Although few Court-curbing proposals would transfer power to the
President, the most notable anti-Court measure—Roosevelt’s Court-packing
plan—would have enhanced presidential power by allowing the President to
nominate six more Supreme Court Justices and forty-four lower federal judges.
This aggrandizement of the executive cost the proposal much support.
Progressive senators, who already were alarmed about the growing
concentration of executive power, found the plan offensive even though they
were among the most vocal critics of the Court’s exercise of judicial review.
As Kansas Senator Arthur Capper explained, “a Supreme Court subservient to
the Executive means the beginning of the end of democratic government.”160
In addition to reflecting unwillingness to tamper with the separation of
powers within the federal government, the failure of Court-curbing movements
also may reflect opposition to altering the balance of federalism. Accordingly,
many critics of the Court’s exercise of judicial review over state legislation
likewise often have expressed reluctance to transfer power from the Court to
the states. Although members of Congress frequently express resentment over
the Court’s alleged intrusion on states’ rights, it is noteworthy that virtually
every Court-curbing proposal which has simmered in Congress during the past
two centuries would have enhanced the power of Congress or the President
rather than the power of the states. Virtually the only Court-curbing proposals
which would have returned power from the Court to the states were the three
with which the Republicans convinced a large segment of the American voting population
of the imminent danger to the Constitution.”); ROSS, supra note 24, at 282-84.
157. Is the Supreme Court Too Supreme?, supra note 142, at 21.
158. Raymond Leslie Buell, Reforming the Supreme Court, NATION, June 14, 1922, at
715.
159. Letter from Edwin M. Borchard to Robert M. La Follette (Oct. 30, 1924) (on file
with the Library of Congress, Manuscript Division, People’s Legislative Service Papers,
Box 1).
160. Opposed to Judiciary Change, N.Y. TIMES, Feb. 22, 1937, at 1. Senators Borah,
Hiram W. Johnson, and Wheeler expressed similar concerns. See ROSS, supra note 24, at
305.
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states’ rights amendments which were proposed by state officials during the
early 1960s.161
The Court’s more temperate critics have acknowledged that transfer of
power from the federal courts to the states could upset the delicate balance of
federalism and that state officials could abuse power as easily as federal
judges. In opposing the states’ rights amendments, for example, the Wall
Street Journal warned against making the “political frustration of the moment
an excuse for tinkering with the forms of government that have served us so
long so well.”162 With regard to the proposed Court of the Union, the Journal
pointed out that “the failings of the Supreme Court are the failings of men.
And the judges of any new ‘Court of the Union’ would be no less men, no less
politically chosen.”163
Reluctance to meddle with federalism likewise reflects dependence upon
the federal government for economic favors and protection of personal
liberties. Even though Americans tend to extol the virtues of states’ rights,
they are increasingly dependent upon the multitude of economic benefits
provided by the federal government, which may make them more favorably
disposed toward federal power in general, including judicial power.
Moveover, Americans have become increasingly reliant upon federal courts in
their exercise of expanded constitutional liberties involving speech, religion,
and sexual behavior. Americans may recognize, however inchoately, that a
powerful federal judiciary is a superior mediator of the exigencies of pluralism
in an increasingly diverse society, and that transfer of power to state officials
would permit more parochial authorities to prescribe the scope of their
liberties.
Similarly, it is not surprising that members of Congress are reluctant to
transfer power from the Court to the states. Notwithstanding their ritual
invocations of the benefits of states’ rights, most members of Congress are
deeply imbued with the federal mentality that comes from living and working
in the nation’s capital. Since any practicable movement to diminish judicial
review must originate with Congress rather than state officials, the fate of
Court-curbing efforts rests with persons who tend to be broadly sympathetic to
federal power, even if many are loath to admit it. Accordingly, Congress is
naturally reluctant to diminish the powers of a coordinate branch of the federal
government. Although members of Congress may resent many federal court
decisions, they seem to recognize that they have more control over the federal
courts than over the states and that maintenance of the federal judiciary’s
power therefore helps Congress to exercise more control over the legal system.
The Senate’s power to confirm or reject federal court nominees and Congress’s
power to regulate judicial compensation and prescribe rules for the federal
judiciary allow Congress to retain a leverage over the federal courts that has no
parallel at the state level.
161. See Amending the Constitution, supra note 135, at 10-15.
162. Tampering With the Form of Government, WALL ST. J., June 25, 1963, at 14.
163. Id.
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D. Organized Defenses of Judicial Review by Elites
Organized activities by elite lawyers, judges, academicians, and
journalists also have helped to frustrate Court-curbing movements. Support for
the Court by such elites is consistent with empirical surveys, which indicate
that elites tend to have a higher regard for the Court than do other Americans.
One study has explained that “[t]his is normally taken to reflect a social
learning process in which greater exposure to dominant cultural norms leads to
greater support for the institutions and values of the polity.”164 As the
journalist Max Lerner observed in 1937, champions of the Court
have used every material at the command of minorities of privilege
when such minorities seek to protect their threatened dominance.
They have controlled the newspapers, dictated the editorials,
contrived the slogans, selected the text books, approved the lectures,
filled the pulpits, guarded the microphones, [and] spoken with
learning and authority through their proper oracles, the lawyers.165
Throughout much of the past century, the American Bar Association
(“ABA”) has worked aggressively to defend the Court’s powers. The ABA
formally opposed Roosevelt’s Court-packing plan, and an ABA poll in April
1937 indicated that the proposal was overwhelmingly unpopular among
lawyers, including those who were not ABA members.166
The ABA’s public pronouncements concerning the Court in the face of
early attacks during the Warren Era were mixed.167 During the following
decade, however, the ABA was more forthright in its opposition to the states’
rights amendments. In 1963, the ABA’s House of Delegates rejected the Court
of the Union and Article V amendments by overwhelming voice vote, and
objected to a reapportionment amendment by a vote of 136 to 74.168 Many
state and local bar associations also opposed the amendments.169
Numerous chief justices have participated in extra-judicial actions to
protect judicial review. John Marshall, for example, was so distressed by the
prospect of Court-curbing agitation among states’ rights advocates in the wake
of McCulloch v. Maryland that he published nine pseudonymous essays in the
Alexandria Gazette defending the Court’s decision.170 In 1937, Charles Evans
164. Gregory A. Caldeira & James L. Gibson, The Etiology of Public Support for the
Supreme Court, 36 AM. J. POL. SCI. 635, 649 (1992). This study, however, found that
diffuse support for the Court among elites often is closely correlated with support for
specific decisions, which casts “doubt on the idea of elites as single-minded pillars of
commitment to the Court.” Id. at 660.
165. Max Lerner, Constitution and Court as Symbols, 46 YALE L.J. 1290, 1312 (1937).
166. ABA, Summary of Referendum Vote by States of Members of the Bar Upon the
Various Proposals Affecting the Courts of the United States (1937).
167. See WALTER F. MURPHY, CONGRESS AND THE COURT: A CASE STUDY IN THE
AMERICAN POLITICAL PROCESS 95-96, 118-19, 225-27, 255 (1962).
168. Bar Blocks Plea for State Rights, N.Y. TIMES, Aug. 13, 1963, at 19.
169. C. Brewster Rhoads, Three Proposed Amendments to the United States
Constitution—A Challenge to Our Form of Government, 35 PA. B. A’SSN. Q. 8, 9 (1963).
170. See Gerald Gunther, Introduction to JOHN MARSHALL’S DEFENSE OF MCCULLOCH V.
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Hughes helped to derail Roosevelt’s Court-packing plan by sending a letter to
the Senate Judiciary Committee denying that the Court was behind in its work
and asserting that an increase in the number of Justices would actually impair
the Court’s efficiency.171
During the 1920s, Chief Justice Taft used his office as a virtual nerve
center of pro-Court propaganda. Taft worked with ABA officials, state bar
associations, scholars, newspaper editors, and sundry other conservatives to
generate and coordinate favorable publicity for the Court.172 Although Taft
generally refrained from public defenses of the Court, he defended judicial
review in a speech unveiling a monument to Chief Justice Chase in May
1923,173 when attacks on the Court had reached a high pitch in the wake of the
Court’s decision striking down the District of Columbia’s minimum wage law
for women.174 Recalling that efforts were made to curtail or abolish judicial
review during Chase’s tenure, Taft observed that “the Court’s duty to ignore
the acts of Congress or of the State Legislatures, if out of line with the
fundamental law of the Nation, inevitably throws it as an obstruction across the
path of the then majority who have enacted the invalid legislation.”175 Taft
explained, however, that “[i]t is convincing evidence of the sound sense of the
American People in the long run and their love of civil liberty and its
constitutional guarant[ies], that, in spite of hostility thus frequently
engendered, the Court has lived with its powers unimpaired until the present
day.”176
In 1963, Chief Justice Warren helped to stall the burgeoning movement
for the states’ rights amendments when he tacitly denounced the proposed
amendments in speeches at Duke University and before the American Law
Institute (“ALI”). At Duke, Warren warned that the proposed Court of the
MARYLAND (Gerald Gunther ed., 1969). Marshall found attacks on the Court “impossible to
bear in silence,” fearing that “[i]f they went unchallenged, their surface plausibility would
help spread the states’ rights virus throughout the land.” Id. at 13. Marshall explained to
Bushrod Washington that he expected a “‘very serious’” attack on the Court in the next
session of the Virginia legislature, at which there would be efforts to pass measures similar
to the Kentucky and Virginia Resolutions of 1798. Id. at 15. Although the legislature
indeed adopted resolutions attacking McCulloch and the Court at its next session,
antagonism against the Court was distracted by the dispute over the Missouri Compromise.
Id. at 17.
171. See 2 MERLO J. PUSEY, CHARLES EVANS HUGHES 754-56 (1951). As Pusey wrote,
In spite of its dispassionate tone, the letter blasted the court bill with
bombshell effect. Its sincere recital of facts stood out in damning contrast to the
transparent pretense of the President’s message. Its restraint threw the dignity of
the court into the balance against the bombastic charges in the President’s recent
speeches.
Id. at 756-57.
172. See ROSS, supra note 24, at 234-44.
173. Chief Justice William Howard Taft, Address at Dedication of Memorial to Salmon
P. Chase, 9 A.B.A. J. 348, 352 (1923); see also Taft Lauds Record of Supreme Court, N.Y.
TIMES, May 31, 1923, at 14.
174. Adkins v. Children’s Hosp., 261 U.S. 525, 539-41, 559 (1923).
175. Taft, supra note 173, at 352.
176. Id.
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Union “would make profound changes in the judiciary, the relationship
between the Federal and state Governments, and even the stability of the
United States Constitution.”177 In his ALI address, Warren urged attorneys to
speak out on the amendments in a “great national debate” in order to prevent
the Constitution from being altered “unwittingly.”178 As one scholar has noted,
Warren “effectively blew the whistle” on the amendments.179
Elites may be particularly inclined to champion judicial review insofar as
they regard the Court as a potent buffer against the excesses of popular
passion. Support for the Court from elites has therefore emanated from both
the left and the right over the years, with conservatives regarding the Court as a
bulwark of property rights endangered by collectivist tendencies among the
masses and liberals perceiving the Court as the most effective defender of
racial, religious, and political minorities. Moreover, there may be subjects,
such as constitutional protection of private sexual conduct, about which both
liberal and conservative elites may tend to wish to maintain the Court’s
power.180
Both liberal and conservative elites, who tend to be economically secure,
also may believe that a strong judiciary protects economic stability. Although
conservatives naturally have regularly invoked property rights as an argument
for protecting judicial review, liberals during the Warren Court era argued that
defiance of the Court’s desegregation decisions could generate political chaos
that would disrupt the post-war economic boom.181
E. Broad Harmony Between the Court’s Decisions and Public Opinion
Support for judicial review likewise has remained resilient because of the
broad harmony between the Court’s decisions and public opinion. As
Professor Pritchett once observed, public support for judicial power has
remained resilient because “the Court has generally told the country what it
wanted to hear, and provided a constitutional case for what the dominant
interests in the nation wanted to do.”182 Despite the intensity of opposition to
many of the Court’s decisions, the Court has never strayed far from the
mainstream of public opinion on any issue. A substantial body of scholarship
indicates that, while the Court has sometimes played a critical countermajoritarian
role, its decisions generally are consistent with prevailing national
consensuses. As Robert Dahl stated in his path-breaking 1957 study, “[e]xcept
for short-lived transitional periods when the old alliance is disintegrating and
the new one is struggling to take control of political institutions, the Supreme
177. Warren Is Critical of Lawyer Silence, N.Y. TIMES, Apr. 28, 1963, at L44 (quoting
Chief Justice Earl Warren).
178. Warren Cautions on Amendments, N.Y. TIMES, May 23, 1963, at 1 (quoting Chief
Justice Earl Warren).
179. PAUL L. MURPHY, THE CONSTITUTION IN CRISIS TIMES: 1918-1969, at 479 (1972).
180. See POWE, supra note 64, at 356-57.
181. See Ross, supra note 59, at 602.
182. C. Herman Pritchett, Judicial Supremacy from Marshall to Burger, in ESSAYS ON
THE CONSTITUTION OF THE UNITED STATES 99, 108 (M. Judd Harmon ed., 1978).
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2003] RESILIENCE OF MARBURY v. MADISON 761
Court is inevitably a part of the dominant national alliance.”183 A 1989 book
concluded that “[m]ost modern Supreme Court rulings reflect public opinion,
and overall, the modern Court has been roughly as majoritarian as other
American policy makers,”184 and an empirical study for the period from 1956
to 1989 found that “[f]or most of the period since 1956, a reciprocal
relationship appears to have existed between the ideology of the public mood
in the United States and the broad ideological tenor of Supreme Court
decisions.”185
Even on the relatively rare occasions when the Court’s opinions may lack
the support of a clear majority of Americans, its decisions never have been
bereft of substantial and broad-based public support. As Professor Graber has
observed, “[w]ith rare exception, justices exercise their power to declare laws
unconstitutional only when no national majority exists for any position or
when the actual dispute is between two institutions, each with legitimate
majoritarian credentials.”186 Accordingly, Judge Lively has observed that
“[c]haracterization of the judiciary as an antidemocratic institution is
mystifying insofar as its performance repeatedly has demonstrated how attuned
and responsive the Court is to majoritarian preferences.”187
For example, a general harmony between public opinion and the Warren
Court’s decisions may go far toward explaining the failure of efforts to curb
the Court during the 1950s and 1960s, even though the Court provoked so
much controversy and protest. As Michael Klarman has demonstrated, the
predicate for Brown and the Warren Court’s other major civil liberties
decisions was established by the profound demographic and cultural
transformation of the nation during preceding decades.188 During the Warren
183. Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a
National Policy-Maker, 6 J. PUB. L. 279, 293 (1957). For a recent analysis and reaffirmation
of Dahl’s essay, see Gerald N. Rosenberg, The Road Taken: Robert A. Dahl’s
Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 50
EMORY L.J. 613 (2001). Similarly, William Allen White remarked to Felix Frankfurter in
the wake of the Judicial Revolution of 1937 that “the Supreme Court, not only now with its
nine old men, but always, has lagged too far but not so terribly far behind Public Opinion as
manifested in Congressional majorities.” Letter from William Allen White to Felix
Frankfurter (Oct. 11, 1937) (on file with the Library of Congress, Manuscript Division,
William Allen White, A Register and Index of his Papers in the Library of Congress, Series
C, Box 267).
184. THOMAS R. MARSHALL, PUBLIC OPINION AND THE SUPREME COURT ix (1989);
accord David G. Barnum, The Supreme Court and Public Opinion: Judicial Decision
Making in the Post-New Deal Period, 47 J. POL. 652 (1985).
185. William Mishler & Reginald S. Sheehan, The Supreme Court as a
Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court
Decisions, 87 AM. POL. SCI. REV. 87, 96 (1993).
186. Mark A. Graber, Constitutional Politics and Constitutional Theory: A
Misunderstood and Neglected Relationship, 27 LAW & SOC. INQUIRY 309, 320 (2002).
187. DONALD E. LIVELY, JUDICIAL REVIEW AND THE CONSENT OF THE GOVERNED:
ACTIVIST WAYS AND POPULAR ENDS 75 (1990).
188. Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement, 80
VA. L. REV. 7 (1994); Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties
Revolutions, 82 VA. L. REV. 1 (1996).
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762 WAKE FOREST LAW REVIEW [Vol. 38
Court period, for example, public opinion polls indicated that the Court’s
controversial opinions on desegregation and reapportionment enjoyed the
support of a large majority of Americans.189
Likewise, the Court’s 1950s decisions protecting the rights of political
radicals were rendered at a time when fear of domestic subversion was on the
wane.190 For example, Lively has pointed out that “[c]riticism that the right of
privacy suddenly materialized as a matter of judicial whim disregards its
gradual seepage into the nation’s value system.”191 Public opinion polls have
demonstrated that public sentiment usually favored even the Court’s most
politically controversial decisions, including its decisions on school
desegregation, reapportionment, and abortion. The general congruence
between the Warren Court’s decisions and the temper of the times is a
principal theme of Professor Powe’s study of the Warren Court.192 What
Arthur Selwyn Miller wrote during the heyday of the Warren Court remains
true