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SUPREME COURT HISTORY
The Court and Democracy
Court History
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Marshall's act of judicial jujitsu neutralized his critics -- Jefferson could hardly object to the immediate result -- while laying the groundwork for the Court to challenge the president and Congress in the future, when the political circumstances were more propitious. And throughout his long and successful tenure, Marshall was similarly cunning, rarely picking battles he knew in advance he could not win. "I am not fond," he wrote to his friend Joseph Story, "of butting against a wall in sport." Not all of his opinions were popular (witness the violent reaction to McCulloch v. Maryland in the South and West, and the repudiation of Worcester v. Georgia in the election of 1832), but most were. While Marshall never again struck down a federal law, he did use judicial review to prevent states from encroaching on national power and the property rights of individuals.

Marshall's political shrewdness and judicial pragmatism neutralized the most serious threats to judicial independence during his tenure. With the tacit encouragement of President Jefferson, Republicans in Congress impeached a Federalist Supreme Court justice, Samuel Chase, for his political harangues from the bench, but he was acquitted by the Senate, establishing a precedent that judges should not be removed from office because of political disagreements. Jefferson also tried to use his power to appoint new justices to change the direction of the Court, but he largely failed: all three of his nominees were moderate Republicans who succumbed, in varying degrees, to Marshall's personal charm and who ultimately embraced his vision of judicial independence and broad national power.

Marshall's successor, Chief Justice Roger Taney, generally continued the policies of defending strong judicial authority while expressing more concern for states' rights. But Taney had a more grandiose vision of judicial power than Marshall, and in the infamous Dred Scott case of 1857, he held that Congress had no power to ban slavery in the federal territories. Although Taney imagined that the decision would help avert the Civil War, it was blamed for helping to precipitate it, and Taney remains best remembered for his poorly conceived and overreaching decision in the case. Dred Scott has come to stand as a cautionary tale about self-inflicted wounds: when the Court heedlessly imagines that it can save the country from its most controversial political debates, it often provokes popular backlashes.

The American people have many direct and indirect ways to curb judicial decisions with which they disagree. They can persuade Congress to propose and the state legislatures to ratify constitutional amendments that overturn unpopular Court decisions -- such as the Fourteenth Amendment, ratified in 1868, which overturned much of the Dred Scott decision. They can demand court-curbing bills of the kind that Congress has proposed during periods of intense disagreement with the Court -- such as during the 1820s, and the progressive and New Deal eras. Or they can elect presidents who promise to change the direction of the Court, as did Andrew Jackson in 1828, Franklin D. Roosevelt in 1936, and Richard M. Nixon in 1968.

By and large, however, the Court throughout its history has reflected national sentiments about constitutional issues more frequently than it has tried (in vain) to check them. For this reason, fears about antidemocratic judicial tyranny have always seemed more urgent to interests on both sides of the political spectrum than to the American people themselves.

About the Author
Jeffrey Rosen is Professor of Law at George Washington University and Legal Affairs Editor of THE NEW REPUBLIC. He is the author of the companion book to the PBS Series, THE SUPREME COURT: THE PERSONALITIES AND RIVALRIES THAT DEFINED AMERICA (Times Books).
Photo of retired Justice Sandra Day O'Connor.
Criticisms of the Court from interests on the Left and the Right are often strident, leading retired Justice Sandra Day O'Connor to express concern about the future of judicial independence.

Reproduction courtesy of the Library of Congress


Did You Know? Justice William Cushing was the only justice to arrive at the Court's first session in 1790 wearing a white wig.  After being teased by men in the street, Cushing removed the wig and never again put one on.