President Obama’s recent attack on the Supreme Court seems to be unprecedented.
There have been cases where a president was upset about an opinion after it was issued, but not cases where a president tried to influence a decision in the making. That might be comparable to jury tampering — usually treated as a felony.
The vehemence of Obama’s attacks makes one wonder whether an ally on the Supreme Court has leaked a preliminary, confidential vote against Obamacare.
By trying to bully another branch of our government, Obama appears to be challenging our federal system itself, based as it is on a separation of powers.
Perhaps we need to remind ourselves how hard people struggled and how much they sacrificed to develop this, the most successful political system ever devised for limiting government power and protecting liberty.
The most dramatic struggles took place in England, but the fullest development occurred here in America.
When an independent judiciary first began to develop in England during the early 17th century, European kings were consolidating absolute power, and some even claimed to be divine. England’s King James I (1603-1625) embraced all that. “Monarchy,” he declared, “is the supremest thing upon earth. Kings are not only God’s lieutenants upon earth and sit upon God’s throne, but even by God himself they are called Gods... for they exercise a manner or resemblance of divine power upon earth. Kings make and unmake their subjects; they have power of raising and casting down; of life and death... ”
Edward Coke (pronounced “Cook”), an English judge as well as a member of Parliament, was determined to limit James’ power and give England a rule of law.
He mastered English common law that applied to everyone. It was a vast hodgepodge that included Saxon legal customs, standard commercial practices for resolving disputes, Parliamentary statutes, judicial decisions and some royal decrees. In addition, there were treatises going back several hundred years, written by respected judges like Henry Bracton, Anthony Fitzherbert, John Fortesque, John Glanville and Thomas Littleton.
Coke began issuing an annual Report on common law cases in 1600, and he continued until 1616. “The books became an authority in the courts of justice,” noted Coke’s biographer Catherine Drinker Bowen.”
Coke extracted legal principles from the common law and expressed them in unforgettable ways.
“The common law,” he wrote, “is the best and most common birth-right that the subject hath for the safeguard and defense, not merely of his goods, lands and revenues, but of his wife and children, his body, fame and life... No man ecclesiastical or temporal shall be examined upon secret thoughts of his heart... the house of an Englishman is to him as his castle.”
Coke hailed Magna Carta (1215) that imposed limitations on the king’s power. “Magna Carta is such a fellow as will have no sovereign,” he explained. “From the time of Magna Carta the liberties, franchises, privileges and jurisdiction of Parliament are the ancient and undoubted birthright and inheritance of the subjects of England.”
This charter had been forced upon King John by rebellious barons, but soon he renounced it. Later kings confirmed watered-down versions of Magna Carter, the last time by Henry VI in 1423. So when Coke began his pioneering work, Magna Carta had been a dead letter for almost two centuries.
King James I repeatedly tried to expand his power. He issued proclamations that he claimed had the force of law, but Coke insisted “the King by his proclamation cannot create any offense which was not an offence before. The law of England is divided into three Parts: Common Law, Statute Law, and Custom. The King’s Proclamation is none of them.”
The outraged king subjected Coke to a three-day interrogation. Coke remarked, “I think this to be the first time any judges of the realm have been questioned for delivering their opinions in a matter of law according to their consciences.”
James had Coke charged with treason and imprisoned in a damp, bitter cold, urine-soaked cell at the Tower of London. Officials spent seven months going through Coke’s personal papers and couldn’t find any evidence of wrongdoing, so he was released. No charges were ever filed.
James died on March 27, 1625, leaving the government deep in debt. His 24-year-old son became King Charles I, and he escalated reckless spending. When he couldn’t pay people to do his work, he resorted to conscription. Desperate, he summoned Parliament, hoping to browbeat the members into raising more money for him. Wrangling between king and Parliament dragged on for three years, as the government’s financial situation deteriorated.
Winston Churchill pointed out that “At the back of the Parliamentary movement in all its expressions lay a deep fear. Everywhere in Europe they saw the monarchies becoming more autocratic.”
In 1628, Coke drafted the Petition of Right that aimed to limit the king’s power: (1) taxes couldn’t be imposed without Parliament’s consent; (2) citizens couldn’t be forced to provide food and shelter for soldiers; (3) individuals could be imprisoned only upon the order of a judge; (4) the king couldn’t arbitrarily declare martial law. Charles approved the Petition of Right to gain Parliament’s cooperation in raising money.
Charles disregarded the Petition of Right, and he didn’t summon Parliament for another 11 years, when he was broke, and England was on the brink of civil war that led to his execution.
Coke died in 1634, but fortunately a younger generation stepped forward to continue the constitutional struggle. One of the most steadfast was John Lilburne. He was the first person to challenge the legitimacy of the Star Chamber, the English royal court that had become a notorious instrument for suppressing dissent. He was the first to challenge Parliament’s prerogative as a law court for imprisoning adversaries. He was the first to challenge the prosecution tactic of extracting confessions until defendants incriminated themselves. He challenged the standard practice of imprisoning people without filing formal charges. He challenged judges who tried to intimidate juries. Four times he faced the death penalty. He endured brutal beatings. He was imprisoned most of his adult life.
Historian Leonard Levy tried to describe this larger-than-life character: “Such men as Lilburne who make civil disobedience a way of life are admirable but quite impossible. He was far too demanding and uncompromising, never yielding an inch to his ideals. He was ostreperous, fearless, indomitable, and cantankerous, one of the most flinty, contentious men who ever lived... No one in England could outtalk him, no one was a greater political pamphleteer... Had Lilburne been the creation of some novelist’s imagination, one might scoff at so far-fetched a character. He was, or became, a radical in everything — in religion, in politics, in economics, in social reform, in criminal justice...”
Then there was William Penn. Before he conceived the idea of Pennsylvania, a diverse society based on religious toleration, he became the leading defender of religious toleration in England. He was imprisoned six times for speaking out courageously. While in prison, he wrote one pamphlet after another that gave Quakers a literature and attacked intolerance. He alone proved capable of challenging oppressive government policies in court. One of his cases helped secure the right to trial by jury. In 1670, as a young lawyer, he decided to challenge the Conventicle Act that Parliament had passed to suppress “seditious conventicles” (as assemblies of religious dissidents were called). Many Quakers were imprisoned.
The jury acquitted the Quakers, but the Lord Mayor of London refused to accept the verdict. He fined the jury members and ordered that they be held in Newgate Prison until they came back with a guilty verdict. Still, they affirmed their acquittal. After the jury had been imprisoned for about two months, England’s Court of Common Pleas issued a writ of habeas corpus to set those people free. Then they sued the Lord Mayor of London for false arrest. The Lord Chief Justice of England, together with his 11 associates, ruled unanimously that juries must not be coerced or punished for their verdicts.
By the time of England’s Glorious Revolution (1688), long-standing grievances had been resolved. People were protected from arbitrary search and seizure. They couldn’t be unreasonably detained unless formal charges were filed, alleging violation of a law. There was a remarkable degree of religious toleration. Above all, the power of the monarch was limited by Parliament that had achieved supremacy. Ironically, this meant judges couldn’t overturn an act of Parliament. Judges could only rule that the government exceeded the powers granted by a statute.
So, the English political system combined legislative and executive powers. The majority party in Parliament formed the cabinet that performed executive functions. Consequently, the freedom of minorities was protected not by the structure of England’s national government but rather by common law traditions. When England’s parliamentary system was adopted by other countries, especially former colonies, major political factions controlled both legislative and executive powers, which made it possible to crush their political rivals.
In America, after the Revolution, the Articles of Confederation had a single branch — a unicameral assembly — that combined legislative and executive functions. There didn’t seem to be a problem protecting the rights of minorities, because this government had little power. It had a hard time getting anything done.
A major aim of the constitutional convention was to devise a political system with a separation of powers. There would be distinct executive and legislative branches plus a “National Judiciary.” As with state courts, there would be lower federal courts where cases originate. A “supreme” court would issue final decisions.
The whole point of the Supreme Court is judicial review — to determine whether the legislative or executive branches exceeded limitations on power specified by the Constitution. As Alexander Hamilton wrote in Federalist No. 78, “Limitations of this kind can be preserved in no other way than through the medium of the courts of justice, whose duty it must be to declare [as void] all acts contrary to the manifest tenor of the constitution.”
Madison shared this view: “A law violating a constitution established by the people themselves, would be considered by the Judges as null and void.”
Chief Justice John Marshall’s opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) confirmed the principle of judicial review. It was also reported to be the first time in the Western world that judges overturned a law because it violated a Constitution.
Thomas Jefferson won the presidential election that was decided on February 17, 1801, but he wasn’t scheduled to take office until March 4, 1801. During the interim, Federalists passed the Judiciary Act of 1801 that increased the number of circuit courts and judges. Until the last minute of his term, President John Adams appointed men who became known as “Midnight Judges.” Jefferson was outraged. As soon as he was inaugurated, he began terminating many of the judges. In 1803, Federalist Samuel Chase, an Associate Justice of the Supreme Court, denounced Jefferson’s efforts. The following year, Jefferson’s allies in the House voted eight articles of impeachment, generally charging Chase with biased opinions, but the Senate voted to acquit him. Chase was the only Supreme Court justice ever impeached. Since then, justices have been more careful to avoid the appearance of bias, and the prevailing view has been that impeachment is justified by legal or ethical misconduct rather than opinions.
President Andrew Jackson seemed to express defiance against the Supreme Court when he allegedly remarked: “[Chief Justice] John Marshall has made his decision, now let him enforce it.” This was said to have been linked with Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), in which Marshall wrote the majority opinion asserting that the federal government, not the states, had authority to negotiate treaties with Indians. However, there are doubts that Jackson ever made the remark, even though he didn’t like Marshall. The quotation was first published much later, in Horace Greeley’s The American Conflict (1864).
There was an entirely different kind of squabble between President Abraham Lincoln and Supreme Court Chief Justice Roger Tawney. Lincoln ordered the arrest of thousands of political dissenters and suspended habeas corpus, which meant that those arrested could be detained for an extended period without the government having to file charges and proceed with a trial in a timely way. In the case Ex Parte Merryman (May 1861), Tawney delivered an opinion that under the Constitution, only Congress — and not the president — is empowered “to suspend the privilege of the writ of habeas corpus.” Lincoln issued an arrest warrant for Tawney, but there wasn’t anybody willing to serve it, since that would have involved escorting the 84-year Chief Justice to the military prison at Fort McHenry, Baltimore. This was certainly a challenge to the Constitution’s separation of powers! In February 1862, Lincoln issued an order releasing almost all of the political prisoners, and the conflict subsided.
The closest case to Obama’s situation is probably President Franklin Delano Roosevelt’s effort to pack the Supreme Court.
In 1935, the Supreme Court unanimously struck down the National Industrial Recovery Act that was a hallmark of the New Deal. It empowered the president to issue executive orders authorizing industrial cartels for fixing prices, wages and output, a variety of economic fascism fashionable at the time. The following year, by a 6 to 3 vote, the Supreme Court struck down the Agricultural Adjustment Act that provided the basis for Agriculture Secretary Henry Wallace’s program to create food shortages in an effort to raise farm prices, by plowing under some 10 million acres of farmland and destroying some 6 million pigs. This law made food more costly for the three-quarters of Americans who weren’t farmers.
FDR was furious. He complained that the justices were dragging Americans back to “horse and buggy days.” He fumed, “Are the people of this country going to decide that their Federal Government shall in the future have no right under any implied power or any court-approved power to enter into a national economic problem?”
FDR didn’t take action against the Supreme Court until after his overwhelming win in the 1936 presidential election (the electoral college vote was 523 to 8). Then FDR urged Congress to take up Supreme Court “reform.” This meant giving him the power to appoint one new judge for each judge who didn’t retire at a legally mandated age — 70. There wasn’t a law requiring Supreme Court justices to retire at a particular age. If Congress passed this reform, FDR figured he could appoint a half-dozen justices to his liking, and there wouldn’t be any more successful legal challenges to the New Deal. FDR’s court reform was broadened to include lower courts with three-judge panels, because more than a hundred lower court federal judges had ruled that various New Deal measures were unconstitutional.
FDR unveiled his court reform on February 5, 1937. He started selling it in his “Fireside Chat” of March 9, 1937. Among other things, he suggested the justices were so decrepit, they couldn’t fulfill their responsibilities. FDR claimed that his aim was “to save the Constitution from the Court and the Court from itself.”
Despite FDR’s popularity, most people didn’t seem to believe him. There was widespread skepticism about FDR’s claim that he was only trying to help aged justices do their job. Admirers of 81-year-old liberal justice Louis Brandeis were offended. Soon increasing numbers of New Deal supporters were expressing opposition to FDR’s plan that was derided as “court packing.” Historian Frank Freidel observed, “Indignant though many of them had been over the anti-New Deal decisions, a considerable part of the liberals viewed the court as the bulwark of American liberties. At that very time, when European dictators were stripping people of their liberties, they were especially sensitive to the danger that the United States might suffer the same malign fate.” Americans were concerned that court reform would set a precedent that might be exploited by an unscrupulous successor.
On Capitol Hill, many members of the president’s own party became alarmed by his over-reach. For them, the issue wasn’t the future of the New Deal, which is what FDR was thinking about. The issue was the importance of defending the separation of powers in the U.S. Constitution. Virginia’s Democratic Senator Carter Glass denounced FDR’s court packing scheme as “a proposition which appears to me utterly destitute of moral sensibility and without parallel since the foundation of the Republic.” Democrats Burton K. Wheeler, Harry Byrd and Millard Tydings worked with Republicans William E. Borah, Charles L. McNary and Arthur Vandenberg.
Senator Wheeler thundered: “Create now a political Court to echo the ideas of the executive and you have created a weapon which in the hands of another President could... cut down those guarantees of liberty written by the blood of your forefathers.”
The Senate had the votes to defeat FDR’s plan. “Presidential pride was sorely scorched,” recalled James Farley, the Chairman of the Democratic National Committee. “For weeks and months afterward I found him fuming against the members of his own party he blamed for his bucket of bitterness.”
Since President Obama seemed quite agitated about the possibility that the Supreme Court might be focusing on the constitutionality of Obamacare, one wonders whether he might be more comfortable with the situation in Venezuela where President Hugo Chavez has more power. Chavez ordered the arrest of Judge Maria Lourdes Afiuni after she made a decision he didn’t like. Chavez reportedly had called for Afiuni to be given a 30-year prison sentence.
In Pakistan, in 2007, President Pervez Musharraf arranged to have himself elected to a second term, but the Supreme Court determined that there were irregularities. Musharraf ordered Chief Justice Iftikhar Chaudhry to resign and suspended the inconvenient Constitution.
The most disruptive attacks on an independent judiciary involve large-scale firings.
In July 2010, Kyrgyzstan President Roza Otunbayeva fired the deputy chairman and six other judges on his country’s Supreme Court. According to the Carnegie Endowment, Kyrgyzstan officials said the firing was necessary “to remove judges who had been discredited and were no longer independent.”
The entire Argentine Supreme Court has been fired at least six times during the past seven decades. In 1946, President Juan Péron had his Congress do it. In 1957, Péron was overthrown, and the new military regime fired all the judges. There was another military coup in 1966, and everybody on the Supreme Court was gone. Péron came to power again in 1973, and all the Supreme Court judges resigned. Three years later, there was yet another military coup that replaced the entire Supreme Court. The revolving-door Argentine Supreme Court kept going round and round.
Brazil has used a variety of tricks. In 1965, for example, a military government packed the Supreme Court by expanding it from 11 to 16 judges. Later, three excessively independent judges, including the chief justice, were forced to retire. The Supreme Court was subsequently shrunken back to 11 justices, so that five could be given their walking papers.
Elsewhere, excessively independent judges have been transferred to undesirable positions. In El Salvador, judge Bernardo Rauda Murcia gave long prison sentences to politically-connected members of the National Guard. The bosses weren’t pleased, and Murcia was reassigned to a remote location that was a four-hour round trip bus ride from his home, and the route passed through dangerous areas with intense fighting between army units and guerrillas.
Obama’s politics of intimidation suggest that he wants more influence and perhaps control over judges. Hopefully, Americans will realize that’s where our story began — and we don’t want to go back there again. We need to preserve what we have, the separation of powers that helps protect our liberty.