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Annual B. Kenneth Simon Lecture: The Fragility of Judicial Independence
Cato Institute — 25th Annual Constitution Day Conference
Speaker: Tara Grove, Vinson & Elkins Chair in Law and Professor of Law, University of Texas at Austin School of Law
Introduced by Clark Neily, Senior Vice President for Legal Studies, Cato Institute
Introduction
Clark Neily: Good evening. Good evening. I’m Clark Neily, Senior Vice President for Legal Studies here at the Cato Institute. Appreciate all of you turning out — it’s been a great day of interesting conversation, and we really appreciate your interest. Now it’s my tremendous honor and pleasure to introduce our B. Kenneth Simon lecturer this evening, Tara Grove, professor at the University of Texas School of Law — my alma mater — and holder of the Vinson & Elkins Chair there. Tara is one of the nation’s leading scholars on federal courts, constitutional law, and separation of powers. She clerked for Judge Emilio Garza on the Fifth Circuit Court of Appeals, and was a DOJ appellate lawyer for a number of years as well. I could go on and on, but you’re here to hear her, not me — the less I talk, the more she gets to communicate with you. There’ll be questions at the end, and we’re going to hear about, I believe, judicial independence and the importance of it. Tara.
Lecture
Tara Grove: So thank you so much — thanks very much to Cato for inviting me. I’m delighted to be here on Constitution Day. I love the United States Constitution — I’ve been trying to make Constitution Day happen in my own family. I give my kids ice cream and cookies, I kid you not, on Constitution Day, because I want them to feel this is like Halloween, Christmas — this is great.
So, earlier this week, the Supreme Court weighed in on a case involving mail-in ballots. As you may know, the president had issued an executive order on the topic, and the U.S. Postal Service eventually came up with a plan saying, essentially, “For any mail-in ballots, they need to be in this kind of envelope, and we need information about voters, or we’re not going to deliver the ballots.” A federal district court enjoined that postal service rule. It went up to the U.S. Supreme Court, and the Court left the injunction in place on its emergency docket. Well, the President of the United States did not take kindly to this judicial interference. Just to quote a few of his comments: he called it “a shockingly bad ruling.” He said the Supreme Court had “been bullied and cajoled by the radical left.” He added, referring to his own nominees — Justices Gorsuch, Kavanaugh, and Barrett — “These are not the people I interviewed to serve on the U.S. Supreme Court. They are merely a shadow of their original selves.” And combining that with recent decisions against his administration on tariffs and birthright citizenship, President Trump said, “This is a court that will go down as having rendered some of the most destructive, hurtful, and damaging decisions in our country’s history.”
So that was the president’s reaction earlier this week. But what’s important is not just that reaction, but what Attorney General Todd Blanche said the very next day. He went in front of the press and said, “We disagree with this decision, we think it’s bad” — but, quote, “Of course, we’re going to comply with the Supreme Court’s decision, as we always do.” I’m not going to weigh in on the merits of the mail-in ballots case — I mention this example because it’s an example of judicial independence. The president made clear he despised the Supreme Court’s decision and the district court’s decision, and yet the administration said, “We will comply with it.” That’s a crucial example of judicial independence. But what I want to suggest is that we should not take this kind of independence for granted. You can call my talk today “the fragility of judicial independence,” or you can call it “does the federal judiciary really have any friends left?”
Judicial independence was a big deal to the framers. This is the 250th anniversary of the country, as well as Constitution Day — the Constitution itself isn’t quite 250 years old, but let’s go back to the Declaration of Independence. Thomas Jefferson drafted it to list a bunch of reasons for breaking from Great Britain, and one of them was that the king did not respect judicial independence. Jefferson wrote that the king had “made judges dependent on his will alone for the tenure of their offices, and the amount and payment of their salaries.” That was one of the reasons for the revolution. In a couple of minutes I’ll talk about how much Jefferson actually lived up to those words, but it’s still part of our system, and part of the constitutional scheme that came later.
So what is judicial independence? I’m going to talk about two different parts. The first is the one we think about most: decisional independence — the idea that a court can rule in a case without fear the judge might lose their job, without fear of violence, without fear the court itself will be attacked. The judge can just say, “This is what I think,” and others will listen and obey, not attack. That’s decisional independence. The other part is perceived independence — the faith of the entire community that judges will actually rule on the law, not because a particular political party or figure wants a particular outcome. Judges need decisional independence, but for the judiciary to have legitimacy, it also needs perceived independence. And I want to suggest we have that today, and it comes from a few different places — but it is by no means guaranteed.
So where does our judicial independence come from? One place is Article III of the Constitution — remember Jefferson’s concern about tenure and salaries? Article III seems to take care of that: judges serve during “good behavior,” which we’ve interpreted to mean, over time, for life — I’ll give you an exception later — and their salaries can’t be reduced during their term. Great, judicial independence, awesome. But the Constitution doesn’t say much else. Judicial independence in our country actually depends on a whole bunch of other things. One is norms. The example I mentioned — compliance with federal court orders — is actually a norm of our legal system, not a constitutional command. Another norm: you can’t be removed from office as a federal judge except through impeachment. A third: you can’t be impeached just because you issued a decision somebody doesn’t like. Another: we don’t expand or contract the size of the Supreme Court because of disagreement with its decisions. And judges don’t have to face violence for issuing an unpopular decision. These are crucially important norms, but they’re not the only protection. Another has been what I’ll call the “backup system” — throughout much of our history, some political party has liked the judiciary and defended it. That’s changed a lot over time as the Court’s decisions have changed, but there’s usually been someone in that role. And I’m going to suggest that all of this is potentially in trouble.
So first, let’s talk about how long it actually took for judicial independence to take hold — starting with Mr. Jefferson. For all the Hamilton fans, I’m going to talk about the Federalists and the Democratic-Republicans; for everyone else, I’ll catch you up. The election of 1800 was a highly fraught election — Federalist John Adams against Thomas Jefferson, with Aaron Burr thrown in, a huge mess. The Federalists and Democratic-Republicans hated each other; each was convinced the other side taking power would be the end of the country. I’m sure you can’t imagine that kind of partisan feeling in any world today, but that’s how they felt. In the election of 1800, the Democratic-Republicans trounced the Federalists — Jefferson won, and the Democratic-Republicans were about to take both the House and the Senate. The Federalists, still in power for a couple more months, thought this was the end of the world, so they did a bunch of things. One: they added lots of federal judges. After the election, but before Jefferson and the new Congress took office, they created sixteen new Article III judgeships — basically doubling the size of the federal judiciary. They also said the Supreme Court justices no longer needed to “ride circuit” — back then, justices also served as lower court judges and traveled the country — and if they weren’t doing that, they didn’t need six justices anymore, so they shrank the Court from six to five. And maybe, just maybe, the Federalists were trying to make sure Jefferson would have trouble appointing a Supreme Court justice. The Jeffersonians looked at all this and said, “Are you kidding?”
So when the Democratic-Republicans took over, they made it their mission to undo a good deal of it. In 1802, they enacted the Repeal Act and eliminated those Article III judgeships. Now — something often missed in the history books — there was a full year between the Federalists’ 1801 act and the repeal, and at least fifteen of those sixteen judgeships had actually been filled; those people served as judges for about a year before being repealed out of existence. The Federalists still in Congress said, “You can’t do that — Article III says they serve during good behavior, meaning life tenure, and you’re also taking away their salaries, you can’t do that either.” The Democratic-Republicans responded, I kid you not, on the legislative floor: “Don’t worry, we’re not firing anyone — we’re just abolishing their positions. Totally different.” So remember what Jefferson wrote in the Declaration about the tenure of judicial offices? Apparently, not so much — salaries gone. The judges actually went to the Democratic-Republican Congress and asked at least for the salaries they would have received. Congress said no, too expensive.
So they’d already removed a bunch of Article III judges despite what Article III says — but they didn’t stop there. The Jeffersonians reinstituted circuit riding and put the sixth seat back on the Supreme Court, adjusting its size yet again. And they still weren’t done — they were unhappy with the Federalists remaining on the federal judiciary, and thought, what better way to get rid of them than impeachment? They impeached a district judge in New Hampshire, John Pickering. Pretty much everyone agreed he wasn’t fit to serve — he was known as something of a drunk, not all there — and a lot of people thought he shouldn’t be on the bench. But everyone also agreed he hadn’t committed anything amounting to treason, bribery, or high crimes and misdemeanors, which under the Constitution are supposed to be the only grounds for impeachment and removal. The Democratic-Republicans impeached him anyway, and he was gone — seen as a precedent for going after other Federalists on the bench who’d been annoying them.
The next target was Justice Samuel Chase. One could see Chase as a victim in this story, but from the Democratic-Republicans’ perspective, he wasn’t — he’d engaged in absolutely partisan activity enforcing the Sedition Act, enacted by the Adams administration ostensibly to prevent criticism of the government but enforced specifically against Democratic-Republicans, and Chase seemed eager to enforce it while riding circuit as a lower court judge. They really hated him — but keep in mind, they were impeaching him because of his decisions, because of what he was doing as a judge. The impeachment went through the House, but on a very close Senate vote, Chase was not convicted or removed — which many took as a precedent that you can’t actually impeach a judge just because you don’t like what they’re doing as a judge.
Now, one might ask: why didn’t the Federalists stop all this? They knew firing Article III judges was unconstitutional — it was their own judges being impeached. They couldn’t stop it because there weren’t enough Federalists left in Congress, and the Federalist Party itself dissolved around the War of 1812. We actually had one-party, Democratic-Republican rule for several decades in the early nineteenth century — so there was no one left to defend the courts.
So how did we eventually develop these norms of judicial independence? Slowly, over time. The norm against impeaching judges for their decisions really did take hold after the Chase example. The others took much longer. Abolishing judgeships to get rid of judges was still seen as a viable — if controversial — method: it was used again in 1863, almost used again in 1911, and wasn’t really taken off the table until the 1930s, when people across both parties started to agree you can’t get rid of judges except through impeachment.
What about changing the size of the Supreme Court? That happened throughout the nineteenth century — the Court’s size went up and down quite a bit during the Civil War and Reconstruction — but many people think that by the time of Franklin Roosevelt’s 1937 court-packing plan, it was off the table. In fact, here’s the story usually told about that plan: this extremely popular president proposed it, everyone thought it was crazy and terrible, Democrats and Republicans alike rejected it, it went away, and Roosevelt hung his head. If you go to the Smithsonian’s American History Museum, the presidents section — that’s the story it tells. I saw it with my daughter. By the way, do you know who chairs the Smithsonian’s board? Chief Justice John Roberts. Very convenient story for him. It’s also not true — I wish it were. In 1937, there was some Democratic opposition and a lot of Republican opposition, but also tremendous support, including from people like Senator Hugo Black, who later joined the Supreme Court himself, and a lot of support from Southerners and others who hated the Court at the time for rejecting Roosevelt’s New Deal program. Roosevelt had overwhelming majorities in both chambers — he could lose a few Democrats and still have a majority; many House members owed their seats to the 1936 Roosevelt landslide. So yes, there was opposition, but with a filibuster-proof Senate majority, it could plausibly have passed — and at one point it looked like even adding four justices might get through — until the sudden death of Senator Joe Robinson, one of the plan’s Senate floor leaders, after which support dwindled fast. There was opposition, don’t get me wrong — but one other thing changed in 1937: the Supreme Court’s jurisprudence on the commerce power, the Due Process Clause, and other things completely transformed, and a lot of people doubt Roosevelt’s plan would have failed had the Court not changed course. We’ll come back to that.
After 1937, people got spooked about court packing, and starting in the 1950s, “court packing” became a political epithet used by both parties — anyone proposing a judicial reform you didn’t like, or nominating a judge the other side didn’t like, got accused of “trying to pack the Court,” even when a president was simply filling an existing vacancy. Democrats and Republicans both talked this way — Joe Biden, for instance, referred to Robert Bork’s nomination as an effort to “pack” the Supreme Court. Court packing became a political epithet you just didn’t do — and that held for decades.
What about compliance with federal court orders? Back in the days of the Marshall Court, when Jefferson was president, the Court didn’t assume Jefferson would adhere to everything it said — including in Marbury v. Madison. One reason the Court found it lacked jurisdiction to actually order the Jefferson administration to give William Marbury his job was that the justices assumed the administration would simply ignore any order it issued. So while Marbury is remembered today as this landmark judicial-review decision, the Court, in exercising judicial review, found it had no jurisdiction partly because it knew Jefferson’s administration didn’t care what it said. The reality of executive compliance with court orders came much later.
I expected, by the time I got to the civil rights movement of the 1950s and ’60s, to find a strong norm of compliance already in place. I figured segregationists would oppose Brown v. Board of Education but still say, “Of course you have to comply with federal court orders.” That is not what happened. When segregationists defied desegregation orders, yes, they were criticized by supporters of desegregation — but their defiance was openly supported by fellow segregationists. One example, from the Congressional Record: Senator James Eastland, a powerful Southern Democrat from Mississippi, referring to Governor Ross Barnett’s effort to keep James Meredith out of Ole Miss, said on the floor of Congress that Barnett had “courageously and boldly pressed himself forward, both as governor and as an individual, and obstructed an order of a U.S. court.” That was said approvingly, on the floor of Congress. The norm that we comply with federal court orders actually developed after that — I think in part because of Brown and the era of “massive resistance” to it. After people came to see Brown as one of the most important and revered decisions in American constitutional culture, they no longer wanted to be equated with the villains who’d defied desegregation orders, and so compliance became the norm. Even Nixon, during the tapes litigation, had an attorney who suggested the president might not comply with a Supreme Court decision — and Nixon was told by people in his own party, “If you don’t comply, you will be impeached and removed.” So he complied, and so did every subsequent president: George W. Bush wasn’t happy with the Court’s Guantanamo decisions but said, “I don’t like it, but of course we’ll comply.” Trump, in his first term, complied with injunctions on the travel ban and sanctuary cities. Biden complied on environmental law and student loans. And Trump, in his second term, has complied with most federal court orders — some took a little while, but as Attorney General Blanche says, the DOJ’s position is that we must comply. That’s become a hugely important norm.
Meanwhile, by the late nineteenth century we also had competing political parties, one of which tended to defend the federal judiciary at any given time. In the late nineteenth and early twentieth centuries, populists and progressives, mostly in the Democratic Party, hated what they saw as a pro-business federal judiciary and proposed all sorts of ways to strip its jurisdiction — while pro-business conservatives, mostly Republicans, said no. Fast-forward several decades, and it was social conservatives from both parties attacking judicial decisions in the wake of Brown, and on abortion and school prayer, while social progressives, again from both parties, said no, not acceptable. The courts, in other words, always had defenders somewhere.
So what about now? I mentioned court packing was a political epithet — until 2018. Starting then, more and more political leaders began saying, actually, expanding the Supreme Court might be a good idea. And notice: if you support it, it’s “expanding” the Court; if you don’t, it’s “packing” it — you can tell how people feel by which term they use. I served on President Biden’s presidential commission in 2021, so I’ve heard a lot of these debates. So — that norm is at least in trouble. Based on a poll I saw just this year, half the country is now at least open to expanding or packing the Supreme Court. I want to underscore what a stunning figure that is — it would have been tiny just a few decades ago.
What about impeachment for decisions? That norm is in trouble too. In 2025, after a federal district court issued an order in one of the many immigration cases, President Trump said the judge should be impeached and removed. Chief Justice Roberts actually responded, in a rare moment of public speaking for a Chief Justice, saying, no — for over 200 years we’ve said impeachment isn’t for this. But apparently no one listened, because in January 2026 there was a congressional hearing about impeaching “rogue judges.” And after the birthright citizenship case, a prominent member of Congress posted on social media something like, “We need to get rid of rogue activist judges — I’m looking at you, Justice Barrett.” People are now talking about impeaching judges not for treason, bribery, or high crimes and misdemeanors, but simply because of the decisions they issue.
What about compliance with orders? I’ve heard the sighs already about the current administration, and there have been real questions about compliance in immigration cases — but it’s not just this administration. After a federal district court issued an injunction against the use of mifepristone during the Biden administration, the decision was called “egregious” and issued by “an extremist judge,” and members of Congress said the Biden administration had the authority to simply ignore the ruling — even if the Supreme Court let it stand. (The Court ultimately rejected the case on jurisdictional grounds.) This is coming from both sides — people saying we can just defy federal court orders we don’t like.
And what about violence and threats? Those are way up too, by orders of magnitude. Many of you have probably heard that after the Dobbs draft opinion leaked, there was an assassination attempt on Justice Kavanaugh — it was thwarted, didn’t get far, but it happened. There’s also “doxing” — posting judges’ personal information online so people can find their kids, their homes. A number of judges, after hearing cases involving the executive branch, have reported receiving pizza deliveries they never ordered — “pizza doxing.” Why is that a problem? Free pizza, right? What the delivery is actually communicating is, “We know where you live.” In several of these cases, the delivery is placed in the name of a specific family member. Many of you may remember that in 2020, someone went to New Jersey District Judge Esther Salas’s house and murdered her son. In these pizza-doxing cases, whoever orders the pizza puts it in the name of that judge’s own son. It’s clearly meant to send that exact message. There’s also “swatting” — falsely reporting a crime at someone’s home to send police there. Justice Barrett has recounted this happening to her family: someone reported a crime at her house, and her teenage son opened the door to find a wall of police officers. Judges are terrified. This didn’t used to happen on any regular basis, and it seems to be increasing.
Meanwhile — which political party is defending the federal judiciary today? I’m looking. When I see criticism of Justice Barrett now, I actually have to read further to figure out whether it’s coming from the right or the left, because everyone’s angry. People used to say, “We don’t like some of the decisions, but overall the judiciary looks fine.” Now, many politicians are essentially saying, “If you don’t rule our way every single time, you don’t deserve to be part of the federal judiciary.” That is an extreme danger to judicial independence.
Now, when I talk about this, people often say, “What’s the big deal — they won’t actually remove judges, won’t actually impeach and remove them, won’t actually disobey a court order, won’t actually pack the Court. This is just a warning: ‘we’re watching you, we want good decisions.’ ” And people tend to say that’s fine, as long as they’re happy with the outcome. Remember Roosevelt’s court-packing plan — Roosevelt himself said he lost the fight but won the war, because in 1937 the Supreme Court’s commerce-power and due-process jurisprudence completely transformed and remains transformed to this day. Chief Justice Roberts is said to have switched his vote in NFIB v. Sebelius, the Affordable Care Act case, partly out of concern about repercussions. I know plenty of progressives who say, “Great, that’s exactly the kind of pressure we need.” What I want to suggest is that this kind of pressure, whatever your politics, can be deeply dangerous — because it can lead courts to balk exactly in the cases where we most need them to stand firm.
Back to the civil rights era: people celebrate Brown v. Board of Education, and they should — it held that segregated schools are inherently unequal. But look at what happened the next year. The Court in Brown didn’t issue a remedy; it scheduled reargument on remedy for the following year. In 1955, Thurgood Marshall, then an NAACP attorney, went back to the Court and argued for a firm desegregation deadline — September 1955, or September 1956 at the very latest — warning that anything mushier would let segregationists fight desegregation tooth and nail. He got some arguable support for that warning from, of all people, the attorney general of South Carolina, who argued the opposite — that desegregation couldn’t happen for decades, maybe not until 2045, ninety years out. So the Court got the message that setting a firm deadline risked outright disobedience. Instead of a firm date, it ordered desegregation “with all deliberate speed.” When I teach Brown, I tell my students: imagine I assign a paper due May 24th versus a paper due “with all deliberate speed” — when would you turn it in? The answer I get is usually “never,” which is roughly how desegregation actually proceeded until the Civil Rights Act of 1964.
Another example, also from 1955: the Court took up a challenge to Virginia’s ban on interracial marriage — the ban eventually struck down in 1967’s famous Loving v. Virginia. But this challenge came in 1955, and the lawyer argued that a ban on interracial marriage was obviously unconstitutional just one year after Brown. I think the Court actually agreed — but was terrified to say so that soon after Brown. We know this because we’ve seen the justices’ internal papers: Justice Frankfurter circulated a memo saying essentially, “We cannot rule on this while the Brown decision is still being fought over.” So the Court first dismissed the case by saying it couldn’t tell what the Virginia Supreme Court had actually ruled — and the Virginia Supreme Court essentially said, “Uh, yes you can” — and when it came back up, the Court dismissed it again, this time saying it didn’t present “a substantial federal question.” I want to underscore: at that point in its history, the Court didn’t have the broad discretion over its docket it has today — it was actually required to hear and decide that case, and it refused anyway, because it was afraid of the reaction.
So, yes, threats work — but maybe that’s not how we want an independent federal judiciary to operate. I’d rather it be independent. So how do we get there? Obviously there’s a lot working against the judiciary right now, just as there is against institutions generally — trust in institutions is way down, and we’re in a much more divided political moment, though we’ve had other periods of deep partisanship, so that alone doesn’t preclude judicial independence. But I do think we need to tone down the rhetoric. The Brennan Center, Berkeley Law’s Center on Justice, and the NYU Rule of Law Institute have all recently issued really important, deliberately bipartisan reports on threats to the federal judiciary — I recommend reading them — and they all say we need to tone down the rhetoric. I agree, and not just about violent threats. All the norms I’ve named — compliance with court orders, restraint on expanding the Court, restraint on threatening judges, restraint on calling for impeachment over decisions — are being tested right now, by rhetoric from both sides of the aisle. No matter what a judge does, someone will not just criticize the decision but call the judge an extremist, a rogue judge, and demand “we need to do something.”
So here’s what I want to suggest: turn down all of the rhetoric. No one should ever call for impeaching a judge, no matter how bad you think their decision or track record is. No one should ever call for or threaten violence against a federal judge. And — more controversially — no one should ever call for packing the Supreme Court just because you don’t like a decision.
But here’s the last thing I’ll say. We talk about judicial independence because it’s so important to our democracy and constitutional system — it is important, and today I’ve heard people talk about really important cases where they went to the federal judiciary saying, “Please check the executive branch,” or “check Congress,” or “check the states.” All very important. But here’s the thing — and I hope, if nothing else, I’ve convinced you of this — judicial independence rests on a whole bunch of political realities: whether we have a functioning two-party system, and norms that don’t come from the judiciary itself, but from the political branches. So I want to suggest to you: the judiciary can’t save our democracy. The judiciary can’t save our political system. Judicial independence can only exist — judges can only really issue decisions they know will be complied with, that they know won’t lead to sanctions — if we already have a reasonably well-functioning democracy and political system. I’ll stop there.
Q&A
Tara Grove: Yes — either one of you.
Audience member (Roger Pilon): Thank you very much.
Tara Grove: Yep.
Audience member (Roger Pilon): I’m Roger Pilon. I wonder how much of what you’re talking about is a function of the judges and justices themselves. Let’s go back to the court-packing era — is it your view that the “switch in time that saved nine” was itself a function of the Court responding to the landslide election of 1936, when all but two states, Maine and Vermont, went for Roosevelt, and the House was four-to-one Democrat? Is it conceivable that the Court made that switch because it realized that ruling otherwise would produce such a reaction in the country that it would give credence to court packing? We see this in other areas too — I’ll give one example: the Wisconsin Supreme Court election last cycle was an extraordinarily expensive race, and the Democratic nominee was right out in the open telling people, “This is what I will vote for once I’m on the court” — which of course raises judicial ethics questions of its own.
Tara Grove: So, on the history — this takes us back to 1936 and ’37. There’s a case, West Coast Hotel v. Parrish, that’s called “the switch in time” case. It’s not actually clear it deserves that label, because the Court had voted privately to uphold the state law at issue back in December 1936 — possibly influenced by the election, possibly not; maybe the lawyers’ briefs were just good. So I don’t personally assume that particular decision was caused by the court-packing plan. What’s much harder to ignore is the rest of what the Court did in the spring of 1937 — decisions from the very same justices that were just very different from what they’d been issuing barely a year before, suddenly quite favorable to Congress’s Commerce Clause power. Maybe it was better briefing, maybe better lawyers, that’s all possible — but when you look at the overall sea change, it’s hard not to think the justices were influenced. I’d add: when judges are influenced by external forces, I don’t assume it’s conscious. It’s genuinely hard for judges to admit to themselves that they’re deciding a certain way because of outside pressure. They clearly knew it, in the interracial marriage case in 1955. But in other cases, I think they just convince themselves “the law must be X” — and it sure feels convenient when X also happens to mean the Court won’t be attacked.
Tara Grove: Yes — J.B. Hogan.
Audience member (J.B. Hogan): You started out talking about the Democratic-Republicans trouncing the Federalists — but you didn’t mention that there had also been late-term appointments that ran contrary to the public will after the people had spoken. You mentioned it wasn’t treason — but if you’re asking judges to violate their oath to the Constitution through some interpretation, isn’t there some argument that violating your oath to the actual Constitution is itself grounds that need addressing? So — more on that point — were those Federalist appointments themselves late-term appointments violating the spirit of the republic? And today, we actually have people proudly saying they’re anti-Constitution — shouldn’t the bar be: if you’re against the Constitution, amend it, rather than getting elected to a job whose oath is to defend the Constitution?
Tara Grove: So — one of the things I was trying to point out about the Democratic-Republicans is that they had reason to be angry. They’d won the election, and suddenly the Federalists were packing the federal judiciary with appointees on their way out. Justice Chase was not exactly an ideal member of the federal judiciary. They had real reason to be angry — and I think it’s an important precedent, because people today think they have very good reasons to be angry too. If you talk to progressives who support court reform, they’ll say Merrick Garland should be on the Supreme Court and was denied even a Senate vote; that Justice Gorsuch sits in what they call a “stolen seat”; that Justice Barrett was confirmed at the last minute after both parties had said they wouldn’t do last-minute appointments — and they say that justifies their proposed remedies. One of my points is: I don’t think however badly you believe the other side has acted, that justifies eviscerating the judicial independence I think our courts should have. But it’s absolutely true that everyone believes the other side was so awful that it justifies extreme action in response — and that’s not unique to 2026, it was just as true in 1801 and 1802.
Tara Grove: Are there other questions? Am I missing anyone? All right — in the back, toward the front of the back.
Audience member (Molly Nixon): Thank you — that was fantastic. This is Molly Nixon, from Cato. I had a question about your research on executive branch compliance with judicial orders — whether you found compliance with the order itself tracking with compliance with the reasoning of the order, over time. Do those run in parallel? And do you think the latter is a norm now, and if so, is it as valuable a norm as compliance with the order itself?
Tara Grove: Right — so what I was trying to figure out historically was when there was a norm of complying with the orders themselves, not the reasoning. I gave “norm” a pretty high bar — if you violate it, people from your own political side need to actually criticize you for it, which, as I said, really didn’t start happening until the 1970s or so, even though most of the time people abided by federal court orders anyway, for lots of other reasons. You’re also asking about judicial supremacy — the idea that you have to accept not just the decision but all the reasoning within it. I think that’s a pretty broadly accepted notion in our country, though I don’t treat it as a “norm” in the same sense, because on both sides of the aisle, people say, “I have to obey the result of the Court’s decision, but I don’t have to agree with anything it says.” So I don’t think that’s developed into a norm — and personally, I hope it doesn’t, because I think each branch of government, and the states too, has an independent obligation to interpret the Constitution, and I think that’s a good thing. When I have students feeling pretty discouraged about our constitutional system — which varies depending on the political moment — they’re often reassured when I tell them, “I love the Constitution no matter what.” Some ask how, and I say: because I’ve never equated the Constitution with whatever the Supreme Court happens to say it means. In my mind those are two separate things. I believe in judicial independence, but that doesn’t mean I agree with everything the judiciary does — honestly, over the course of our history, I’d probably give it a B‑minus. But I still think having the judiciary, and listening to it, is crucially important, even when I don’t like much of what it says.
Tara Grove: Yes, in the front.
Audience member: I don’t think you can gloss over what Mitch McConnell did in terms of politicizing the Supreme Court, and why there’s so much popular support for — or, let’s say, lack of respect for — the Court’s independence. You’re asking for the Court’s independence — we’d love to have it, I personally would love to have it — but when you get a five-to-four decision on birthright citizenship, how does that comport with defending the Constitution?
Tara Grove: I think it’s always hard to think clearly about judicial independence when you’re upset about a particular decision. Did I think it was good that Merrick Garland never got a Senate hearing? No. And at the time, I’d already been researching court-curbing and judicial independence for a while, and I remember thinking this was going to be terrible for the federal courts, no matter what you think of any particular appointment — and indeed, it has been very bad for the judiciary. Did I think birthright citizenship would come out differently? Yes, I did. Though I’d point out something often overlooked: if you read Justices Thomas and Gorsuch’s dissents — especially Gorsuch’s — what they’re actually saying is that an undocumented immigrant is domiciled in the United States and therefore a birthright citizen. So it’s not quite five-to-four, or even six-to-three, as people describe it — arguably it’s seven-to-two on the underlying question of undocumented immigrants specifically. But does that mean I’m always happy with what the Supreme Court says? No. Here’s the thing about our constitutional system, though, and I’ll probably end on this: we have a separation of powers precisely so that Congress isn’t always in charge, the president isn’t always in charge, and the judiciary isn’t always in charge. Do I think there’s sometimes too much presidential power in our system? Yes. Would I like to see Congress doing more? Yes. Would I sometimes like the Supreme Court to do less? Yes. But I want to keep all these powers in place, checking each other — I think that was part of the framers’ design, and I’m grateful for it, and I want to keep faith that we have a constitutional system worth preserving and defending. Thank you.
Closing
Clark Neily: That was wonderful. Thank you, Tara. Let’s give a big round of applause for all of our panelists today, and all the Cato employees who made today happen. If you want to stay involved — if you want to keep coming to Cato events — our new project, Your Verdict Counts, will be holding an event on October 8th, from 6:00 to 8:30 PM, in Richmond, Virginia. You can get more information online at yourverdictcounts.org. For those of you joining us here in person, you can pick up an informational flyer out in the lobby — registration for that event is live now at yourverdictcounts.org. We invite everyone here in the auditorium to join us right now for a light reception out in the Winter Garden — that’s the space you’ve all been in during breaks. Thank you all again, both here and online, for joining us for the 25th Annual Cato Constitution Day.
