By Justin Crowe, an assistant professor of political science at Williams College
Gee, for a one-time constitutional law professor, Barack Obama sure does seem to harbor a lot of hostility for judges. (And, judging [a legal pun — ha!] by Samuel Alito and Jerry Smith, they for him.) Doesn’t he? First there was the broadside at his 2011 State of the Union criticizing the Court's decision in Citizens United, prompting Alito's now-infamous “not true” moment. Next there was his claim that the Court wouldn't dare strike down the Affordable Care Act as unconstitutional, prompting Smith’s surely soon-to-be-infamous order to a DOJ lawyer for a memo outlining the Justice Department’s views on judicial review. For all his claims about “due deference to the separation of powers” and supposed belief in the importance of an independent judiciary to protect the rights of citizens and the rule of law, it appears Obama only likes the Court — only likes the judiciary more broadly — when it agrees with him. And surely that sort of “anti-judgeite” perspective is a terrible one for American constitutionalism and American democracy. Right?
Well, yes — sort of ... and no, not at all. In a sense, Obama only really values judicial power to the extent that its exercise comports with his policy preferences. But, at base, who doesn’t? Presidents always want — have always wanted — courts to bend to their will. And politicians generally always try — have always tried — to shape courts to serve their interests. So what? Does this really “politicize” the judiciary in some needless, inappropriate, and harmful way? Does it really demonstrate that judicial power — that judicial independence, that law itself — is somehow perpetually under political siege? Not even remotely.
As I attempt to show in my recent book, Building the Judiciary: Law, Courts, and the Politics of Institutional Development, any claims that judicial power — that judicial autonomy or judicial independence — has ever been, in any meaningful sense, beyond the sphere of politics are fundamentally incorrect. Indeed, from the very creation of the federal judiciary in the Judiciary Act of 1789 to the present, the institutional judiciary — the complex of functions, individuals, and resources that constitute the federal judicial system — has been distinctly the product of political forces. To the extent that the judiciary has grown powerful, to the extent that it has been given more functions to perform, more individuals to perform them, and more resources to aid those individuals in performing them, it is because elected officials have consistently and continuously wanted it to be so.
Indeed, even as presidents have occasionally attacked the Court with hostile rhetoric and legislators or interest groups proposed Court-curbing measures, congressional legislation has repeatedly not only attended to courts’ institutional needs but also expanded their reach. At certain points, such legislation has been motivated by the desire to harness judicial power in favor of a particular policy or partisan aim, but, at other points, it has simply been a function of the fact that — ideological differences notwithstanding, views on specific constitutional dilemmas notwithstanding — politicians have recognized courts as both an integral part of the political system and as potential partners in regime governance.
Take, for example, any of the transformative moments in the history of the institutional judiciary — the creation of the federal judiciary in the Judiciary Act of 1789, the constellation of Civil War or Reconstruction era measures expanding federal jurisdiction, the creation of the circuit courts of appeals during the Gilded Age, the shift to a predominantly discretionary Supreme Court docket in the Judiciary Act of 1925 — and it is clear that, far from occurring in a world apart from politics, far from happening in courthouses and judges’ chambers, the construction and reconstruction — the making, remaking, and modification — of judicial power that has unfolded over the course of American political development has been the work of elected politicians acting in political forums and upon political interests. In each instance, committee composition was more important than opinion assignment. In each instance, legislative maneuvering was more prevalent than constitutional debate. In each instance, statutes, not case law, effected change. The upshot? Questions of judicial power have never been removed from or contrary to politics but, in fact, always deeply embedded within it.
So what does this historical rule mean for our supposedly “anti-judgeite” president, for our politics, and for our time? For starters, it means all those leveling breathless accusations about how Obama’s supposed aggression and hostility toward the Court represent a disgraceful attack on the constitutional order need, quite simply, to step back and relax. Taken in historical context, nothing the president said — not in his State of the Union a few years ago, not in his more recent comments about the Affordable Care Act litigation — was the least bit remarkable or the least bit problematic. (Whether or not his comments in either instance were strategically wise or not is another question entirely.) He didn’t threaten the Court; he didn’t say he was going to flout its rulings. He merely did what presidents before him have always done — sought to move the Court in his direction publicly while doing absolutely nothing to impede the exercise of its power privately. Whether or not he sounds like he likes judges, the president sure doesn’t act like he hates them.