Presidential Challenges to Judicial Supremacy and the Politics of Constitutional Meaning Author(S): Keith E

Northeastern Political Science Association

Presidential Challenges to Judicial Supremacy and the Politics of Constitutional Meaning Author(s): Keith E. Whittington Reviewed work(s): Source: Polity, Vol. 33, No. 3 (Spring, 2001), pp. 365-395 Published by: Palgrave Macmillan Journals Stable URL: http://www.jstor.org/stable/3235440 . Accessed: 09/08/2012 15:06

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp

. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].

Palgrave Macmillan Journals and Northeastern Political Science Association are collaborating with JSTOR to digitize, preserve and extend access to Polity.

http://www.jstor.org Polity * Volume XXXIII,Number 3 * Spring 2001

Presidential Challenges to Judicial Supremacy and the Politics of Constitutional Meaning*

KeithE. Whittington PrincetonUniversity

Conflictsbetween the Supreme Court and thepresident are usuallyregarded as grave challengesto the Constitutionand a threatto judicial independence.Such claimsmisrepresent the nature of these presidential challenges, however. In doing so, theypaint an unflatteringand inaccurateportrait of Americanpolitics and underestimatethe strength of American constitutionalism. This article reexamines historicalpresidential challenges to thejudicial authorityto interpretconstitutional meaning.It argues thatrather than being unprincipledattacks on judicial independence, such challenges are best regarded as historicallyspecific efforts to reconsiderthe meaning and futureof American constitutional traditions in timesof politicalcrisis and constitutionaluncertainty.

Keith E. Whittingtonis assistantprofessor of politicsand JohnMaclean Jr. PresidentialPreceptor at PrincetonUniversity. He is the authorof Constitutional Construction:Divided Powers and ConstitutionalMeaning (Harvard University Press, 1999), ConstitutionalInterpretation: Textual Meaning, Original Intent, and JudicialReview (University Press of Kansas, 1999),and articleson Americancon- stitutionaltheory and development,federalism, the presidency, and thejudiciary.

In 1803,Chief Justice John Marshall declared that "it is emphaticallythe province and dutyof the judicial department to saywhat the law is,"and thusclaimed for the SupremeCourt the right to determinethe meaningof the Constitutionand to hold theactions of theother branches of governmentnull and void.,Just over a century and a half laterin Cooper v. Aaron, ChiefJustice Earl Warrensomewhat con- tentiouslyinterpreted Marshall's claim as establishing"the basic principlethat the federaljudiciary is supremein the exposition of the law ofthe Constitution, and that principlehas eversince been respectedby thisCourt and the Countryas a perma- nentand indispensablefeature of our constitutional system." As a consequence,the constitutionalinterpretation "enunciated by this Court ... is thesupreme law ofthe land."2Despite Warren's assertion, judicial supremacy in constitutional interpretation

*The helpfulcomments of BarryFriedman, Howard Gillman,Mark Graber, Fred Greenstein, Stephen Griffin,Stephen Skowronek, and TraceyStorey, and thefinancial assistance of theJohn M. Olin Foundation and AmericanCouncil of LearnedSocieties are gratefullyacknowledged. 1. Marburyv. Madison,5 U.S. 177 (1803). 2. Cooperv. Aaron,358 U.S. 18 (1958). 366 PRESIDENTIAL CHALLENGES TO JUDICIAL SUPREMACY

has notalways been respectedby "the Country," even if it had been assumedby the Court.Throughout American history, numerous writers, political activists, legislators, stateofficials, and evenjudges have questionedthe Court's monopoly over interpre- tiveauthority." Perhaps most significantly, several presidents have deniedthe authorityof the Courtto settledisputed constitutional meanings. In doingso, theyhave challengeda basic assumptionof American constitutional theory. PresidentFranklin Roosevelt's showdown with the Court has been paradigmatic in thisregard. The climacticmoment of the "switchin time"has helpeddefine our understandingof presidentialattacks on the Court,suggesting the limitsof judicial independenceand ofAmerican constitutionalism. To theextent that the judiciary is identifiedwith the Constitution, as ChiefJustice Warren and othershave argued that itshould be, thenchallenges to judicialauthority are easilytaken to be tantamount to challengesto constitutionalismitself. Following his mentorFelix Frankfurter, AlexanderBickel famously concluded that whenever possible the Court should hus- band itsresources by avoiding such confrontations.4Some scholarssuch as Gerald Rosenberg find such judicial retreatsinevitable, if regrettable.5Others have denouncedsuch passivityas contraryto thevery purpose of constitutionalism.6 The activeexercise of judicial supremacy is oftenregarded as vitalif "principle" is to tri- umphover "politics," "justice" over the "majority'swill."7 A closer look at the historicinstances of presidentialchallenges to judicial supremacysuggests that the stakesof such interbranchconflicts are substantially more ambiguousthan is normallyassumed. In the UnitedStates, presidents and otherpublic figures have been essentialplayers in redefininghow the Constitution is understoodand operatesin practice.Such politicalreconsideration of founda- tionalelements of Americangovernance has been centralto sustainingthe vitality of theConstitution over time. A preoccupationwith the autonomy of theCourt has directedus away fromthe constitutional purposes that motivated these presidents to take on the Courtand thatwere advanced by themin theirstruggle with the Court.This article cannot provide a completedefense or elaborationof extrajudicial constitutionalinterpretation, but through a specificexploration of a certainkind of presidentialpolitics it indicatesthe dynamic and politicalcharacter of theConstitu- tion.The pointis not thatjudicial review is expendablein a constitutionalsystem, butsimply that the political supports for judicial independence need furtherexam-

3. In makinghis assertion in 1958,Warren himself was respondingto justsuch a challengeby local governmentofficials in Arkansaswho were resistingthe Court's desegregation efforts. 4. AlexanderM. Bickel,77te Least DangerousBranch (Indianapolis: Bobbs-Merrill, 1962) 5. GeraldN. Rosenberg,"Judicial Independence and the Realityof PoliticalPower," Review of Politics 54 (1992): 394. 6. GeraldGunther, "The SubtleVices of the 'Passive Virtues'-A Comment on Principleand Expediency in JudicialReview," Columbia Law Review 64 (1964): 1; WilliamLasser, 77Te Limits of JudicialPower (Chapel Hill:University of NorthCarolina Press, 1988). 7. RonaldDworkin, A Matterof Principle(Cambridge: Harvard University Press, 1985), 71. Keith E. Whittington 367

inationand thatthe foundationsof judicialreview are farmore complicated than the mythicnarrative of judicial supremacy asserts. Specifically,by reconsideringpresidential challenges to judicial interpretive authoritythe article suggests four things. First, it seeks to contributeto therecovery ofthe legitimacy of extrajudicial constitutional discourse and interpretation.In keep- ingwith a growingbody of work, this article further explores the empiricalsignifi- cance and normativevalue of constitutionaldiscourse outside the judiciary.8 Second, itemphasizes the need to situatejudicial authority, as well as judicialdeci- sion-making,within the politicalsystem as a whole.9Third, the particularcase of presidentialchallenges to judicialsupremacy points to the need to transcendthe commonopposition between constitutionalism and democracyin orderto explore the fluidityof and interconnectionsbetween the two.10Finally, the articlesuggests thatchallenges to judicialauthority are partof a politicalcycle, and thusto some degree self-limiting."The boundariesof extrajudicialconstitutional interpretation are best foundin realpolitical dynamics, rather than in formalline drawing. Fora handfulof presidents, the definition of constitutional meaning is a crucial partof theirpolitical task. These presidentsmust engage in a struggleto deter- mine not onlywhat the Constitutionwill mean, but also who will decide what it means. In such contexts,presidents contend for the institutionalauthority to interpretthe politicalorder, in order to reconstructthat political order on new grounds.Conflict between the presidentand the judiciaryis a by-productof their competingclaims to authorityand relativeposition in the overallconstitutional scheme. The articlebegins with an examinationof the problemof judicial independence and itsrelationship to constitutionalpolitics. The second sectionintro- duces a theoreticalframework of politicaltime, which emphasizes the importance to governmentofficials of securing political authority.This framework providesa largerpolitical context within which presidentialattacks on judicial supremacyshould be placed. The thirdsection applies thatframework to the par-

8. E.g., Bruce Ackerman,We the People. Transformations(Cambridge: Harvard Uniiversity Press, 1998); KeithE. Whittington,Constitutional Construction (Cambridge: Harvard University Press, 199)). 9. See also, CornellW Clayton,"The SupremeCourt and PoliticalJurisprudence: New and Old Insti- tutionalisms,"in Supreme CourtDecision-Making, edited by Cornell Claytonand Howard Gillman (Chicago: Universityof ChicagoPress, 1999); Lucas A. Powe, Jr.,The WarrenW. Court and AmericanPolitics (Cambridge:Harvard University Press, 2000). 10. See also, AndrewMoravcsik, "The Originsof Human RightsRegimes: Democratic Delegation in PostwarEurope," International Organization 54 (2000): 217; Ran Hirschl,"The PoliticalOrigins of Judicial Empowermentthrough Constitutionalization: Lessons fromFour ConstitutionalRevolutions," Law and Social Inquiry25 (2000): 91. 11. In part,this article provides more systematic historical and politicalcontent to MarkTushnet's sug- gestionthat political leaders may legitimately "provoke a majorconstitutional crisis ... when theyare faced withan issuecrucial to theirpolitical program." Mark Tushnet, "Marbury v. Madisonand theTheory of Judi- cial Supremacy,"in GreatCases in ConstitutionalLaw, editedby RobertP. George(Princeton: Princeton UniversityPress, 2000), 38. 368 PRESIDENTIAL CHALLENGES TO JUDICIALSUPREMACY

ticularproblem of presidentialattacks on the judiciary,clarifying why presidents enterinto such conflicts.Several historical cases are consideredin orderto illus- tratethe recurrenceand dimensionsof presidential-judicialconflict. The fourth sectionconsiders the role of the Courtin creatingand respondingto thispolitics of reconstruction.The finalsection elaborates the significance of these particular cases forour understandingof constitutionaltheory and developmentand their implicationsfor future research.

I. The Problemof JudicialSupremacy and Constitutional Politics

In Cooper,Warren not onlyasserted the historicalreality of judicialsupremacy buthe also articulatedanother common assumption of constitutional scholars, that judicialsupremacy is "an indispensablefeature of our constitutionalsystem." The defenseof the Court goes farbeyond arguments on behalfof judicial review or judicial independenceand extendsto claimsthat the Court must be theultimate inter- preterof the Constitutionand thatother political actors and governmentofficials mustaccept that for practical purposes the Constitution is whatthe justices say itis. A varietyof rationaleslie behindsuch arguments,from the beliefthat only the judi- ciarywill act as a faithfulinterpreter of theConstitution to theexpectation that the judiciaryis more likelyto reach substantivelydesirable results to the fearof the chaos thatwould resultwithout an ultimateconstitutional interpreter to impose order.12Such assumptionshave unavoidablycolored our impressionof historical challengesto judicialinterpretive authority. The theorythat presidents,and other governmentofficials, can and should engage in independentconstitutional reasoning is knownas "departmentalism,"or "coordinateconstruction."13 Thomas Jeffersonwas the firstpresident to explicitly embrace thistheory, arguing that each departmentof governmentmust be "co- ordinateand independentof one another."The Constitutionhas given"no control to anotherbranch" of the decisions of one branch,and ultimatelyeach branch"has an equal rightto decide foritself what is the meaningof the Constitution."4 In its mildestform, coordinate construction can refersimply to the "dialogue"that natu- rallyoccurs between the branchesas each takesaction consistent with its view of theConstitution and as theywork together to come to a commonunderstanding of

12. E.g.,Larry Alexander and FrederickSchauer, "On ExtrajudicialConstitutional Interpretation," Har- vard(Law Review 110 (1997): 1359. 13. EdwardS. Corwin,Court Over Constitution(Gloucester, MA: PeterSmith, 1957), 6-7; WalterE Murphy,"Who Shall Interpret?The Quest forthe UltimateConstitutional Interpreter," Review of Politics 48 (1986): 406. 14. Thomas Jefferson,The Writingsof Thomas Jefferson,ed. AndrewA. Lipscomb,20 vols. (Wash- ington,D.C.: ThomasJefferson Memorial Association), 11:214; Thomas Jefferson, The Writingsof Thomas Jefferson,ed. Paul LeicesterFord, 10 vols. (New York:G.P. Putnam's Sons, 1892-1899),10:141. KeithE. Whittington369

whatthe Constitution requires." The Department ofJustice, for example, routinely submitsbriefs to theCourt urging it to adoptparticular interpretations ofthe con- stitutionaltext, and Congressmust either implicitly or explicitlyassume that its statutesare consistentwith the properly interpreted Constitution. Ingeneral, such dialoguescause little consternation, forthey do notreally challenge judicial authorityto resolve constitutional meaning. Far more threatening isthe stronger claim that iftwo branches come into conflict, the judiciary's interpretation does not necessar- ilytrump the president's. Thereis little disagreement as to which presidents have advocated coordinate con- structioninthis strong form.16 Traditionally, thislist includes Jefferson, Andrew Jack- son,Abraham Lincoln, and FranklinRoosevelt. More recently, Ronald Reagan and membersof hisadministration have also struckdepartmentalist themes. Although thesepresidents are among our most celebrated, their particular embrace of depart- mentalistrhetoric has often been regarded as dangerous,borne of hostility tothe judi- ciaryand partisan excess. Often these presidential attacks on theCourt are written off as theresult of personal animosities toward the judiciary or irrationaloverreactions to pastjudicial slights, or perhapsmore threateningly an underlying American intoler- anceof constitutional limits on politicalpower.17 Placing departmentalism within the largercontext of presidential politics, however, can clarify why these presidents, and onlythese presidents, have chosen to challenge judicial authority. Ifwe areto evalu- ate theextent of the threat to judicialindependence in Americanpolitics, then we needto better understand the political rationale for advancing such claims. Thisdepartmentalist framework provides a usefulway of thinkingabout the extremesof extrajudicial constitutional interpretation andconnects to a well-estab- lishednormative/legal debate. It also readilyrelates to an empiricalliterature that analyzescourt-curbing as an elementof political realignments. From this perspective,the judiciary is bestunderstood as a policymakerand a partnerin a national policymakingcoalition.18 Challenges to theCourt arise when the judiciary falls out ofstep with that coalition, as inperiods of rapid electoral change, and blocksthe favoredpolicies of legislative majorities. Court-curbing is one mechanismfor over- comingthe judicial veto and bringing the branches back into alignment. Presiden-

15. LouisFisher, Constitutional Dialogues (Princeton: Princeton University Press, 1988); Neal Devins, ShapingConstitutional Values (Baltimore: Johns Hopkins University Press, 1996); Barry Friedman, "Dia- logueand Judicial Review," Michigan Law Review91 (1993):577. 16. E.g.,Fisher, Constitutional Dialogues, 238-246;Susan Burgess,Contest for Constitutional Authority (Lawrence:University Press of Kansas, 1992), 77-95; Robert Scigliano, The Supreme Court and thePresi- dency (New York:Free Press, 1971),23-60; John Agresto, The Supreme Courtand ConstitutionalDemoc- racy(Ithaca: Cornell University Press, 1984), 77-95. 17. DavidAdamany, "The Supreme Court's Role in Critical Elections," inRealignment inAmerican Pol- itics,edited by Bruce Campbell and Richard Trilling (Austin: University ofTexas Press, 1980), 244-246. 18. RobertA. Dahl, "Decision-Making ina Democracy: The Supreme Court as a NationalPolicy-Maker," Journalof PublicLaw 6 (1957): 279; Powe, The WarrenCourt, 485-501. 370 PRESIDENTIALCHALLENGES TO JUDICIALSUPREMACY

tialattacks on theCourt reflect the divergent policy preferences ofthe two branches, andthe success of such attacks can be takento demonstrate that "the hypothesis of judicialindependence is wrong," which has bothempirical and normativesignifi- cance.19The concernof thisarticle is lesswith the "hypothesis of judicialindependence"than with an understandingofthe presidential challenges themselves, whichhave been commonly framed within this literature as majoritarian rejections ofconstitutionalism and hysterical overreactions to past grievances.20 Thisarticle offers a corrective tosuch approaches to understandingpresidential challengesto judicial interpretive authority. Departmentalist presidents are substan- tivelyimportant intheir own right and significantfor normative theories of constitutionalinterpretation, though for empirical theorizing about presidential-judicial relationsthey are somewhat sui generis. It should be notedthat these cases of pres- identialassertion of independent authority tointerpret the Constitution are directed towardthe Court. This focus does notcover cases of executivedepartmentalism aimedat Congress,as whenAndrew Johnson asserted the right to disobeythe Tenureof Office Act, in order to bringthe constitutional dispute into the courts, or the practiceof Bill Clintonand otherrecent presidents of issuingstatements expressingconstitutional doubts about legislation and pledgingto administerthe law accordingly.Likewise, Richard Nixon is traditionallynot included in the list of departmentalistpresidents. Though critical of various court decisions and aggres- sivein litigation,Nixon did not claim the authority to act contraryto theCourt's interpretationofconstitutional meaning. Notably, Nixon quickly complied with the Court'sruling to turnover subpoenaed documents to the specialprosecutor, despitehis attorney's equivocation at oralarguments.21 Such cases, however, are usefulin indicatingthat presidential challenges to judicialauthority are best regardedas existingat one endof a continuum,along which lesser assertions of presidentialconstitutional authority can be arrayed.

19. Rosenberg,"Judicial Independence," 398. 20. The"majoritarian rejection of constitutionalism" isa natural outgrowth ofDahl's analysis of elected policymakersencountering the obstruction ofunelected (judicial) policymakers. Subsequent analysis has calledinto question Dahl's contention that an activejudicial veto of legislation coincides with electoral realignments.E.g., Jonathan D. Casper,"The Supreme Court and National Policy Making," American Politi- cal ScienceReview 70 (1976):50; GregoryA. Caldeiraand DonaldJ. McCrone, "Of Time and Judicial Activism:A Study of the U.S. Supreme Court, 1800-1973," inSupreme Court Activism and Restraint, edited The by StephenHalpern and CharlesLamb (Lexington, MA: Lexington Books, 1982); John B. Gates, SupremeCourt and PartisanRealignment (Boulder, CO: WestviewPress, 1992). In addition to complicat- ingDahlian analysis of judicial behavior, such arguments also undermine the motive for political attacks on theCourt. In theabsence of contemporary obstruction by the Court of politically favored policies, such attacksmay seem more like an emotionalrelease than a rationalpolitical strategy. 21. Duringthe oral arguments for United States v. Nixon,Justice Thurgood Marshall asked "Well, do youagree that [the issue of executive privilege] is before this Court, and you are submitting itto this Court fordecision?" Nixon's attorney, James St. Clair responded, "This is being submitted tothis court for its guid- anceand judgment with respect to the law. The President, on theother hand, has his obligations under the Constitution."Quoted in Alexander and Schauer, "Extrajudicial Interpretation," 1364n22. KeithE. Whittington371

II. ConstitutionalAuthority in PoliticalTime Thesepresidential challenges to the judicial authority todetermine constitutional meaningcan be betterunderstood ifthey are placed within their particular political contextand the political tasks that these presidents have faced. Since constitutional theoryhas generallyproceeded on theassumption that constitutional meaning, includingthe determinationof the institutionalauthority to settleconstitutional meaning,is a matterof abstractreasoning, departmentalist claims have been treatedas logicalconclusions from fundamental postulates about constitutional text and structure.22The correctness of that reasoning can thenbe readilyabstracted fromany immediate political context. The developmental approach would suggest thatclaims about constitutional meaning arise out of particular political contexts andare only comprehensible when considered in that context. The central question to be answeredis whythese presidents made such challengesand whythey attractedsubstantial political support in so doing. Thetraditionally recognized departmentalist presidents are notable for the ambi- tionof their political projects, as wellas fortheir conflicts with the courts. These presidentsare distinctivein their authority to act to remakethe inherited political system.In his examinationof presidentialleadership, Stephen Skowronek has emphasizedthe extent to which presidential action depends upon a priorclaim to authority.23Before an individualoccupies the presidency, the political agenda is alreadypartially determined through commitments previously made by the candi- date,the president's party, and the president's predecessors. Inaddition, presidents arenot free to act as theychoose on theagenda that they do face.Skowronek sug- geststhat the authority toact is derived from the political regime, the "commitments ofideology and interest embodied in the preexisting institutional arrangements."24 Dependingon howthe president relates to thislarger political order-his claim to politicalauthority tosupplement his claim on theinherent resources of his office- some strategicoptions become easier,while others become more difficult to pursue.The concept of political time describes the pattern formed by the presiden- tialrelationship topolitical authority, the intersection ofthe vitality ofthe regime and thepresident's relationship toit. Reconstructivepresidents periodically emerge in oppositionto weak regimes. Theirauthority in officeis rootedin theirantagonism to existingcommitments, allowingthem to gain prestige precisely through their efforts toshatter the inherited constitutionalorder. Presidents such as AbrahamLincoln and FranklinRoosevelt achieve"greatness" through their ability to teardown the inherited but discredited

22. E.g.,Michael Stokes Paulsen, "The Most Dangerous Branch: Executive Power to Say What the Law Is," GeorgetownLaw Journal83 (1994): 217. 23. StephenSkowronek, The Politics Presidents Make (Cambridge: Harvard University Press, 1993). 24. Skowronek,The PoliticsPresidents Make, 34. 372 PRESIDENTIALCHALLENGES TO JUDICIALSUPREMACY

regimeand raise up a newone in their own image. They "reconstruct" thenation by reinterpretingitsfundamental commitments. Because their leadership task is foun- dational,they are calledupon to reconsiderbasic substantive political values and reconfigureexisting institutional arrangements. The political strength of thesesub- stantiveclaims enhances their own authority toact and thus the institutional stature ofthe presidency. Lincoln became a powerfulpresident because of the political sup- portthat he could muster behind his political vision, and his presidency became his- toricas a consequenceof the constitutional depth and political success of that vision. Animportant feature of this model of political time is therelative rarity of reconstructivepresidents. Few presidents have either the inclination orsupport to mount sucha politicaleffort.Thepolitical authority that falls to these presidents is not read- ilyavailable to theirsuccessors. If presidential challenges to judicial supremacy are fundamentallyconnected to thepolitics of reconstruction,then the nature of the threatto constitutionalism thatmany critics of coordinate constitutional interpreta- tionraise has to be reevaluated.A "Euclidean"approach to constitutionaltheory can neitherexplain the historic assertion of departmentalist claims nor recognize theirlimited scope.25 Although these historic episodes of presidential attacks on the Courtare familiar,they have not been adequatelyintegrated into constitutional theory.The next section indicates how our historical experience with presidential challengesto judicialsupremacy is coherentwith the political time approach and suggestshow theseparticular presidential-judicial conflicts need to be situated withinthe broader context of these administrations and theirpolitical efforts.

III. ReconstructivePresidencies and ConstitutionalAuthority

In orderto addressthe relationship ofthe judiciary to thereconstructive presidency,the political order being shattered and recreated by those presidents must be reconsidered.At times, Skowronek suggests that presidential efforts to recastthe dominantregime are somehowsignificant for an understandingof the constitutionalorder. He notesbriefly, for example, that these reconstructive presidents "havereset the very terms and conditionsof constitutional government" and that theirstruggles "have penetrated to thedeepest questions of governmental design and ofthe proper relations between state and society."26 But his explicit discussion of politicalregimes renders them essentially partisan, oriented around relatively narrowdifferences ofpolicy and constituency. The Constitution enters most directly intohis discussion as an importantbackground condition for the emergence of reconstructivepolitics. The "constitutional ordering of institutional prerogatives ... framesthe persistent pattern of political disruption."27 Bycreating a system of sep-

25. Paulsen,"The Most Dangerous Branch," 226. 26. Skowronek,The PoliticsPresidents Make, 39, 38. 27. Skowronek,The PoliticsPresidents Make, 9. KeithE. Whittington373

aratedpowers, the Constitution insures that presidents will struggle with other actorsfor control over the government. Aspart of that basic institutional design, the Constitutionarms each presidentwith the "same basic prerogatives of thepresi- dentialoffice," such as thepardoning and veto powers.28 Although Bruce Ackerman uses theterm "constitutional politics" to referto thepolitical effort to remakethe effectiveset of fundamental values and formalpowers, Skowronek uses the same termmerely to refer to the presidential exploitation oftheir available powers in pur- suitof other, non-constitutional goals.29 When he speaksof presidents keeping or recastingthe "political faith," he is inevitablyspeaking of coalitionalpolicy plat- forms.30He does findthe Court to be an increasingimpediment to presidential goals,but the judiciary in this sense is justpart of the generally "thickening" institu- tionalenvironment, and Skowronek offers no particulartheory of presidential-judicialconflict and attributes no specialsignificance toit.31 Theconstitutional politics of reconstructive presidents extends beyond the instru- mentaluse of availableinstitutional resources and formalpowers. Constitutional meaningis notso fixed.The president cannot uncontroversially claim the authority ofhis office, for the nature of the office is itselfin dispute.32 Moreover, the regimes thatpresidents attempt to structure, and which in turn structure presidential action, aredeeply entangled with the constitutional order as theyunderstand it.This feature ofreconstructive politics makes the Court particularly relevant and insures presidentialconflict with the judiciary. For these presidents, fellow partisans are not the only threatsto their authority, fortheir authority claims are constitutional as well as partisan. Becausereconstructive presidents are attempting to restructure inherited con- stitutionalunderstandings, they find the judiciary to be an intrinsicchallenge to their authority,even absent the contemporaneous exercise of judicial review. As a result, judicialauthority within the constitutional system should be expectedto varywith politicaltime as well.33The president and the judiciary compete over the same con- stitutionalspace, with the authority ofpresidents to reconstructthe inherited order supplantingjudicial authority tosettle disputed constitutional meaning.

28. Skowronek,The PoliticsPresidents Make, 12. 29. BruceAckerman, We the People: Foundations (Cambridge: Harvard University Press, 1991), 7; Skowronek,12. 30. Skowronek,The PoliticsPresidents Make, 12. 31. Skowronek,The PoliticsPresidents Make, 75. 32. Thisfeature of presidential politics is notemphasized here. Skowronek recognizes that the presidential officeitself develops over time and discusses, for example, Jackson's expansion of the veto power andLincoln's constitutionalinnovations inprosecuting the Civil War. More often, however, he distinguishes institutionalinnovation from constitutional continuity, creating some unresolved tensions for his historical analysis. 33. It be might notedthat judicial authority appears to vary with "secular time" also. Judicial authority has graduallyexpanded over time, making the Court a moreactive and independent force in politics. See Caldeiraand also, McCrone,"Of Time and Judicial Activism"; Mark Silverstein and Benjamin Ginsberg, "The SupremeCourt and the New Politics of Judicial Review," Political Science Quarterly 102 (1987): 371. 374 PRESIDENTIALCHALLENGES TO JUDICIALSUPREMACY

In orderto developthis dimension of reconstructive politics, the constitutional concernsof these presidents must be emphasized.The connections between their conflictswith the Court and other actors must be developed,and the logic of the politicsof technique must be extendedto the legal sphere. This section develops several relevantfeatures of reconstructive politics and their consequences for the separation ofpowers. These historical episodes are not unfamiliar, but they are sharply at odds withthe assumptions of judicially centered theories of constitutionalism. Thesehistorical episodes of presidentialchallenge to thejudicial authority to determineconstitutional meaning are best understood as partof political time and as an aspectof thepresident's reconstructive stance, rather than in theterms of eitherthe realignment or thedepartmentalist accounts. In particular,these two existingaccounts of such presidential-Court conflicts posit that these presidents are engagedin the majoritarianrejection of limitsof theirpolicy preferences and demonstratea targeted hostility toward an obstructionistjudiciary. Neither claim providesan adequateinterpretation ofthese events. In additionto advancingthe specificinstitutional claim that presidents have a rightto engage in coordinate con- structionof constitutional meaning, reconstructive presidents can be expectedto articulatea more general and substantive vision of the Constitution. The judiciary is unlikelyto be theonly adversary that the president will face, and presidential challengesto judicial supremacy are likely to be linkedto presidential assaults on other politicalenemies who challenge presidential leadership. Departmentalist claims are also likelyto be accompaniedby a politicizationofconstitutional meaning that dis- placesthe legalistic discourse favored by the Court. The reconstructive perspective callsattention to thepositive contribution these presidents have made to American constitutionalismandto the dynamics of American constitutional development.

Visionsof the Constitution

Reconstructivepresidents are most concerned with establishing their own sub- stantivevision of the constitutional order. Conflict with the Court is merelya by- productof this primary focus. Existing approaches to presidential challenges to judicialsupremacy often view them in purely instrumental terms, legal ploys designed toovercome policy conflicts between the president and the Court. Such approaches overlookthe substantive political vision that reconstructive presidents seek to real- ize.Particular conflicts with the courts are contingent outcomes of this constitutive effort.Departmentalism is implicit in thereconstructive posture, rather than the legitimatingtheory for attacks on theCourt. Reconstructive presidents need not be hostileto courts per se orjudicial review in general. For most presidents, there may be occasionaldisagreements with the Court and efforts toalter the trajectory ofcon- stitutionallaw, but there is no crisisof, or challenge to, judicial authority. For reconstructivepresidents, however, establishing a contested vision of the constitutional orderis centralto their political task. KeithE. Whittington375

Reconstructivepolitics shifts the institutional locus for the debate over constitutionalmeaning, as theexamples of Jefferson and Roosevelt make clear. The challenge tojudicial authority mounted by these presidents did not sweep constitutional princi- plesfrom the public sphere, as manymodern advocates of judicial supremacy tend to assume.Rather, a de-emphasis on thejudicial interpretation ofthe Constitution simplyaccompanied an increasedfocus on constitutionalmeaning on thepart of the president.Whereas the judiciary usually emphasizes the constitutional constraints on governmentpower, reconstructive presidents draw inspiration from the Constitution fortheir positive vision of how political power should be used.In presidential hands, theConstitution becomes an idealto be realizedin political practice rather than a set ofrules that hamper political action. The symbol of the Constitution is employed to legitimatepresidential actions. The policies of the administration areportrayed as not merelyconsistent with but as productsof the Constitution. As architects of funda- mentalpolitical change, reconstructive presidents appeal to theConstitution to help legitimatetheir enterprise. The substantive vision of the Constitution that these presi- dentsoffer is explicitlydifferent than the interpretations andpractices of their imme- diatepredecessors, but these presidents insist that theirs is an efforttosave the Con- stitutionfrom the mishandling oftheir immediate predecessors and the Court itself. ForThomas Jefferson and his followersworking within the republican para- digm,the "Revolution of 1800"meant saving the Constitution from the Federalists' centralizingand monarchical tendencies. Jefferson had leftWashington's adminis- trationas a resultof disagreements over the constitutional and policywisdom of presidentialpolicies. The subsequent administration ofJohn Adams and hiscon- gressionalsupporters pursued even more aggressively an effortto expandthe powerof the national government. The RepublicanParty began in oppositionto whatwas seen as theFederalists' constitutional heresy. But for Jefferson, unlike somefuture presidents, those apparent constitutional errors were still of recent vin- tage.The revolution required less the adoption of a wholenew set of policies than thereversal of recent Federalist initiatives and the prevention offuture drift, "the invi- olablepreservation ofour present federal constitution."34 TheJeffersonians feared thatthe Constitution was beingstrangled in itscradle, and extraordinarymeans suchas theformation ofan organizedpolitical party were necessary to preserve it froma cabal ofaristocratic conspirators. For the Jeffersonians, Federalist policies fosteredcorruption within the republic, using public resources to supportprivate privilegethrough such instruments as protectionist tariffs and excisetaxes. At the sametime, "more disposed to coerce than to court" the public, the Federalists were usingthe state apparatus to consolidate their own power through such actions as theexpansion of the judiciary and the passage of the Alien and Sedition Acts.35

34. Jefferson,Writings, ed. Ford,7:327. 35. Jefferson,Writings, ed. Ford,7:447. 376 PRESIDENTIALCHALLENGES TO JUDICIALSUPREMACY

Jeffersoninsisted on a returnto firstprinciples: "a wiseand frugalgovernment whichshall restrain men from injuring one another"and be dominatedby the leg- islaturewas the"sum of good government."36 Believing that the citizenry "agreed in ancientwhig principles," itwas Jefferson's task merely to "define and declare them" to provide"the ground on whichwe couldrally" to resistthe enemies of the Con- stitution.37Forhis supporters, Jefferson's ascension to office meant that "the Revo- lutionof 1776is nowand for the first time arrived at itscompletion," as "theissue ofwhich rested the liberty, Constitution, and happiness of America" was resolved.38 Themobilization ofthe late 1790s began an extensiveprocess of specifying the true meaningof the Constitution and identifyingconstitutional errors. Federalist politi- ciansand publicists, as wellas theCourt, were frequent targets of criticism, as the Jeffersonianssought to teachits constitutional values and consolidatetheir domi- nancein American politics. Evenat this early date, however, Jeffersonian constitutionalism was not simply a returnto the pristine Constitution before the Federalist fall. The Jeffersonian Consti- tutioncarried different inflections and emphasesthan it had before,developed throughthe interaction ofinherited principle, changing circumstance, and response to Federalistactions. Themes of democracy, free speech, agrarianism, and frugality weremore prominent inthe reconstruction ofthe Constitution than they had been previously.The president called upon the nation "to retrace our steps and to regain theroad which alone leads to peace,liberty, and safety,"recovering the "creed of ourpolitical faith" and the "text of civil instruction."" 39The Jeffersonian interpreta- tionof the Constitution built on an existingtradition, but it did so selectively.Jeffer- son provideda sweeping vision of constitutional principles and their political implications,not detailed textual analysis of the foundingdocument. Even as John Marshallin the judiciary worked to makeconstitutional interpretation seem more technicaland apolitical, the Jeffersonians inthe public arena emphasized the con- testednature of constitutional meaning and the need for a broad-basedcampaign towin support for their constitutional vision. FranklinRoosevelt's understanding ofthe crisis of his times and the appropriate responseto itwas quitedifferent than Jefferson's, but the two presidents shared a concernwith recovering the Constitution as a foundationofand guide for their politics.If Jefferson feared that the Constitution had become a "merething of wax" in the handsof his opponents,Roosevelt complained that the Constitutionhad become a straitjacketas implementedby his foes.40Like Jefferson, Roosevelt

36. Jefferson,Writings, ed. Ford,8:3. 37. ThomasJefferson, The Writings of ThomasJefferson, ed. H.A.Washington, 9 vols. (New York: JohnC. Riker,1853-1856), 4:386. 38. Quotedin Lance Banning, The Jefferson Persuasion (Ithaca: Cornell University Press, 1978), 270. 39. Jefferson,Writings, ed. Ford,8:5. 40. Jefferson,Writings, ed. Ford,10:141. KeithE. Whittington377

thoughtthe Constitution was morethan merely a set of constraints on government. It was a normativeideal toward which political actors should strive. In a 1932 speech,Roosevelt contended that predatory government was overcomeby two commitments:one to "limitationson arbitrarypower," but the other to "therise of theethical conception that a rulerbore a responsibilityforthe welfare of his sub- jects."4'Although Roosevelt's particular conflicts with the Court centered on legal restrictionsthat hampered the administration's policies, the president also drew uponthe Constitution to create positive authority for the New Deal. The Constitu- tionwas flexibleenough to allowRoosevelt's actions, and progressiveenough to callfor such actions. The "New Deal" was morethan a sloganfor a listof policies. The New Deal was therealization of Roosevelt'sconstitutional vision. Roosevelt denounced"Republican leaders" as "falseprophets" who had "failedin national vision."In their place, Roosevelt called upon his followers to "constituteourselves prophetsof a neworder" that would "restore America to itsown people."42 One ofRoosevelt's central political tasks was toarticulate a constitutional order consistentwith the social demands of the modern age. In hisspeech to theCom- monwealthClub during his firstpresidential campaign, Roosevelt declared that "faithin America ... demandIs] thatwe recognizethe new terms of the old social contract."43His language here is significant.The politicaltask is to reinterpretthe old,to reconcilethe new politicalcommitments with the inherited constitutional order,not simply to claimlegitimacy on completelynew grounds.The particular newterms that Roosevelt hoped to recognize required "the development ofan eco- nomicdeclaration of rights, an economicconstitutional order."44 A mature nation wouldabandon the "jungle law ofthe survival of the so-called fittest" in orderto implementa "philosophy ofsocial justice through social action."45 But such social justicewas merely"an expression, inconcrete form, of the human rights" perpetu- ated"by the adoption of the Constitution ofthe United States."46 Governmentas an instrumentofsocial justice was notonly to securehuman rights,however, itwas alsoto democratize government. Roosevelt's New Deal elab- oratedthe promise of a governmentworking for the "general welfare" of the whole people,including the "forgotten man at thebottom of the economic pyramid."47 Thegovernment was tobe thecustodian of the whole people and responsive to the wholepeople. Such efforts were understood to protectdemocratic forms of gov-

41. FranklinD. Roosevelt,Public Papers and Addressesof Franklin D. Roosevelt,ed. Samuel 1.Rosen- man,6 vols.(New York: Random House, 1938), 1:745. 42. Roosevelt,1:658-659. 43. Roosevelt,1:756. 44. Roosevelt,1:752. 45. Roosevelt,4:771. 46. Roosevelt,4:385. 47. 1:625. Roosevelt, Rooseveltwas drawingon a vibranttradition ofreformist constitutional thought. WilliamE. Forbath,"Caste, Class, and Equal Citizenship," Michigan Law Review98 (1999):1, 23-76. 378 PRESIDENTIALCHALLENGES TO JUDICIALSUPREMACY

ernmentagainst either reactionary orradical threats and to betterrealize the dem- ocraticpromise of the constitutional inheritance itself. Roosevelt's reconstruction of constitutionalauthority served the dual purpose of loosening the constraints on governmentpower and of reframing the positive responsibilities ofgovernment.48 Just as Jefferson'svision of good government required political officials to preventciti- zens frominjuring one anotherand nothingmore, so Roosevelt'svision required officialsto "cure... theseevils of society" and nothing less.49

PervasivePresidential Conflict

Constitutionalanalyses of these presidential-judicial conflicts often take them in isolation.The Court is portrayedas the sole obstructionto an otherwisedominant governingmajority, and these departmentalist presidents single out the judiciary as a particularobject of scorn and criticism. As a consequence,the judiciary is imag- inedto be uniquelyvulnerable to presidentialaggressions, a lonely bastion of con- stitutionalismunder siege by feckless politicians. These clashes with the judiciary, however,are part of a moregeneral pattern of pervasive conflict that characterizes theseadministrations. Conflicts with the courts are only a singleskirmish within the largerpresidential offensive to establishhis authority to remake American politics, as moredetailed consideration ofJackson and Roosevelt demonstrates. AndrewJackson's veto of legislation torecharter the Second National Bank is the focalpoint for much of the analysis of his challenge to the judiciary. Jackson's diffi- cultywas thatthe veto power had traditionally been exercised on constitutional,not policy,grounds. A constitutionalobjection to theBank bill was complicated,however,by the Supreme Court's earlier acceptance in McCulloch v. Marylandof an impliedcongressional power to incorporatethe Bank.50 In order to veto the Bank bill,Jackson would have to rejectthe Court's authority to settle the constitutional issue.Jackson argued that the president must be guidedby his "own opinion of the Constitution"and defendit "as he understandsit, and notas itis understoodby

48. Lincolnand Reagan shared with Roosevelt this concern with establishing the new terms of the old order.In contrast, Jefferson and Jackson primarily emphasized the need to save the Constitution from immi- nentthreat of subversion. For the later presidents, the problems facing the constitutional order are long- standing,not imminent. The true Constitution had to be recovered,but it could not simply be saved.For Roosevelt,this required shedding the immature philosophy ofsocial Darwinism. For Lincoln, the promis- sorynote of the Declaration of Independence's egalitarianism had to be repaidand the temporary com- promisewith slavery had to be abandoned.Garry Wills, Lincoln at Gettysburg(New York: Simon and Schuster,1992); JamesM. McPherson,Abraham Lincoln and theSecond AmericanRevolution (New York: OxfordUniversity Press, 1991). For Reagan, the excesses of modern liberalism had to be purgedfrom gov- ernmentand society in "a SecondAmerican Revolution ofhope and opportunity" inorder to "renewthe meaningof the Constitution" and"restore constitutional government" so that free individuals could reap the rewardsof their own efforts. Ronald K. Muir, Jr., "Ronald Reagan: The Primacy of Rhetoric," inLeadership inthe Modern Presidency, edited by Fred I. Greenstein(Cambridge: Harvard University Press, 1988), 260. 49. Jefferson,Writings, ed. Ford,9:197; Roosevelt, 4:423. 50. McCullochv. Maryland,17 U.S. 316 (1819). KeithE. Whittington379

others."5'The SupremeCourt "ought not to controlthe coordinate authorities of thisGovernment." Asfar as Jacksonwas concerned,itwas thelegislature's "aban- donmentof the legitimate objects of Government" that posed "most of the dangers" to therepublic. The presidentrejected both Chief Justice John Marshall's specific constitutionalreasoning and the Court's authority to bind the other departments to itsparticular understanding ofconstitutional requirements. Although the oft-quoted declarationin relation to a separateIndian case that"John Marshall made his decision,now let him enforce it" is probablyapocryphal, Jackson's hostility tothe Mar- shallCourt was oftenintense, and when the Court became an obstacleto hisown politicalgoals, he was preparedto ignore it.52 AlthoughJackson's argument has clear implications for judicial authority, itmust also be understoodin the context of more pervasive political conflict. Jackson had notsingled out the judiciary for particular assault. The veto message itself is indica- tiveof this broader context. The rejectionof judicial supremacy was a necessary stepin Jackson's argument, but the main target of his ire was theBank and its Whig supporters.The Court may have enabled Congress to violate the Constitution inthis wayof thinking, but it was theBank and its conspirators who were prepared to do theviolating. The "richand powerful,"Jackson argued, were acting to "bendthe actsof governments totheir selfish purposes," and Congress was willingto oblige them,arraying "section against section, interest against interest."53 Moreover, the vetomessage was a campaigndocument as wellas a communiqu6to Congress.54 Theauthority itclaimed for the president was notonly against the Court, but more importantlyalso against his electoral opponents. Jackson's posture as independent constitutionalinterpreter notonly authorized him to rejectthe proposed legislation, butit also fedhis claim on thevotes of the citizenry. An isolated focus on thejudi- ciaryhas tended to portraythe veto as a seriouschallenge to judicialreview, but a broaderperspective indicates that judicial review was atbest an incidentalconcern. Theprimary purpose of the message was torally support for Jackson's substantive constitutionalvision against all of his opponents, from private interests tocongres-

51. AndrewJackson, A Compilationof the Messages and Papers of the Presidents,ed. James D. Richardson,20vols. (New York: Bureau of National Literature, 1897), 3:1145. 52. Effortsto minimizeJackson's conflict with the Court depend primarily onJackson's rejection of the doctrineof nullification,which challenged judicial authority to define the Constitution vis-a-vis the states. Jackson's supportfor the judiciary against the nullifiers, however, was highlycontingent and expressed his commitmentto nationalism,not his respect for judicial authority. Jackson's departmentalist logic is not readilybounded, and thehostility ofthe Jacksonians more broadly to thecourts is undeniable.Michael Stokes "The Paulsen, MerrymanPower and the Dilemma of Autonomous Executive Branch Interpretation," CardozoLaw Review15 (1993):81. Cf., Richard Longaker, "Andrew Jackson and the Judiciary," Political Science Quarterly71 (1956): 341; Fisher,Constitutional Dialogues, 238-241.But Jackson's to the willingness employ courtsin his battle against the nullifiers does emphasize the contingent, political nature of the conflict.The Court is partof reconstruction politics-not the object of irrational hatred. 53. Jackson,3:1153. 54. Robert V.Remini, Andrew Jackson and the Bank War (New York: W.W Norton, 1967), 80-100. 380 PRESIDENTIALCHALLENGES TO JUDICIALSUPREMACY

sionalleaders. With his veto, Jackson was challenginglegislative supremacy as well as judicialsupremacy, and those institutional claims were specifically tied to a par- ticularsubstantive vision that helped establish and legitimate Jackson's stance. FranklinRoosevelt's Court-packing plan is similarly taken as an exemplarof presidentialconflict with the judiciary, but it too mustbe placedin the context of the reconstructivepresident's more general conflicts and struggles for political authority.His Court-packing rhetoric linked that effort to similarbattles the administration was wagingagainst the forces of paralysisand reactionelsewhere. Just months afterhis 1936 reelection, the president proposed legislation to enablehim to nomi- natean additionaljustice for each existingjustice over the age ofseventy, giving Rooseveltan immediatemajority on a reconstitutedCourt. A bipartisanSenate Judi- ciaryCommittee report ultimately denounced the plan as an "invasionof the judicialpower" requiring such an emphaticrejection that "its parallel will never again be presentedto thefree representatives ofthe free people of America.""55 Despite suchvocal opposition, a scandalized press and Congress,and a fortuitouslytimed switchin the Court's majority, the plan nearly passed.56 Roosevelt himself expressed surpriseat thetumult, asking if "some people really believe that we didnot mean it"when he had warnedin Novemberthat "we had onlyjust begun to fight."57 Althoughhis surprise at the reaction to hisCourt-packing plan was disingenuous- he had preparedthe plan in secretto heightenits dramatic effect-his bewilder- mentat the political dilemma it created is more understandable. The Court-packing planwas consistentwith his larger rhetorical message of late 1936 and early 1937. Forthe president, his attack on theCourt was ofa piecewith his attack on numerous otheropponents. Tothe president, the Court was alliedwith a broadarray of entrenched and elite intereststhat would have to be overcomein order to achieve the new constitutional orderthat Roosevelt envisioned. In a campaignaddress, the president declared that "organizedmoney" were "unanimous in theirhate for me-and I welcometheir hatred.I should like to haveit said of my first administration that in it the forces of selfishnessand of lust for power met their match. I shouldlike it said of my second Administrationthatin it these forces met their master."58 Mastering those forces of selfishnessrequired democratizing the government, both in formand substance. Thepresident warned another audience that some "would like to turn the conduct ofGovernment over to a selected,self-chosen few. I wouldrather leave it in the

55. Senate Committeeon theJudiciary, Reorganization of theFederal Judiciary, 75th Cong., Ist sess., 1937,S. Rept.711, 10, 23. 56. WilliamE. Leuchtenburg,The Supreme Court Reborn (New York: Oxford University Press, 1995), 132-162;Michael Nelson, "The President and the Court: Reinterpreting theCourt-Packing Episode of 1937," PoliticalScience Quarterly103 (1988): 267. 57. Roosevelt,6:114. 58. Roosevelt,5:568-569. KeithE. Whittington381

handsof what we callthe democracy of the United States.""5 Popular government shouldalso servethe good of the people, promoting justice "for the great masses" andabandoning a philosophyof "indifference" that did not "promote the general welfare"but only benefited the few.60 Inhis 1937 annual message to Congress, Roosevelt's challenge to the Court was directas he defendedhis own reading of the Constitution as better than that offered bythe Court. The president's own constitutional studies had convinced him that the "vitalneed is notan alterationof our fundamental law, but an increasinglyenlight- enedview with reference to it."The text should be givena "liberalinterpretation" so as tobe an "instrumentofprogress.""6 The Court had been "asked by the people to do itspart in making democracy successful," and Roosevelt contended that the peoplehad "a rightto expect"the Court to allowthe use of"legitimately implied" powersfor the "common good."62 Although the president initially justified his Court- packingplan on thebasis of increasedefficiency, he soon turnedto a political defense,arguing that he neededa Courtthat would "enforce the Constitution as written,"or moreto thepoint, justices "who will bring the Court to a present-day senseof the Constitution."63 A "reinvigorated, liberal-minded Judiciary" would not "overridethe judgment of the Congress on legislativepolicy. "64 Forcing the Court to recognizepresidential authority to constructthe terms of theConstitution in the interestof and at thebehest of the people at largewas essentialto realizingthe promiseof democracy in America. A centraltheme of Roosevelt's presidency was theneed to unleashthe political powercreated by the Constitution to promote the welfare of the people. In recent years,he argued, the power of the government todo goodfor the whole people had beenallowed to atrophy. Private interests who hoped to gainat the expense of the commongood had thrownup obstaclesto reformthat exploited constitutional formsto defeatconstitutional purposes. Roosevelt's Court-packing plan was announcedjust two months after the unveiling of his proposal to reorganizethe executivebranch. The judiciary was notthe only obstruction to be clearedaway, and thetwo proposals were rhetorically linked as necessaryto save democracy fromcrisis and elite rule. The reorganization plan, known as theBrownwell Report, soughtto drawpolicy-making into the executivedepartments and to develop administrativecontrols under direct supervision ofthe president, addressing a wide- spreadconcern that rapid growth had left the government fragmented and uncoor- dinated.As with the Court-packing plan, Roosevelt saw theBrownwell Report as a

59. Roosevelt,5:478. 60. Roosevelt,5:280, 568. 61. Roosevelt,5:639. 62. Roosevelt,5:641. 63. Roosevelt,6:126, 127. 64. Roosevelt,6:133, 129. 382 PRESIDENTIALCHALLENGES TO JUDICIALSUPREMACY

vehiclefor adapting the Constitution tothe requirements ofa newage.65 Roosevelt introducedhis proposal as a fightto save democracy. Reform was necessary"unless itbe saidthat in our generation national self-government broke down and was frit- teredaway in bad management. Will it be said'Democracy was a greatdream, but itcould not do thejob?'"66 Both continuing economic crisis and political resistance to theNew Deal madesuch questions quite pressing, especially given the implicit exampleof events in Europe. Presidential authority, he argued, had to be expanded to overcomebureaucratic resistance to policygoals. Executivereorganization wouldin turn allow the government to overcome political resistance from private interests.The "freedom of self-government" depended on "aneffective and efficient agencyto servemankind and carry out the will of the Nation."''67 The Constitution designatedthe president as theagent of the nation, and he musthave "the author- itycommensurate with his responsibilities under the Constitution."" Asthe Report asserted,"the President is a politicalleader-leader of a party,leader of the Con- gress,leader of a people,"and "the President alone" constitutionally possessed "the wholeexecutive power of the Government ofthe United States."69 The obstaclesto presidentialauthority were legion, and thejudicial challenge was one ofmany that such reconstructive presidents had to overcomein order to layclaim to theirright to definethe future of American governance.70 Departmen- talismwas notan isolatedand idiosyncratictheory adopted by these presidents. It was an aspectof their general political posture. What is mostnotable about these presidentsis not their hostility tothe judiciary, but their struggle against a varietyof competitorsfor the authority to interpret the Constitution's meaning in a newhis- toricalcontext. These presidents recognized that there were many voices in the politicalarena advocating different readings of the nation's constitutional traditions, and theirreconstructive efforts were aimed at establishingtheir own voiceand visionas paramount.

65. Rooseveltreportedly regarded the Brownwell committee as doingthe work of a "constitutional convention."John A. Rohr,To Run a Constitution(Lawrence: University Press of Kansas, 1986), 136. 66. Roosevelt,5:669. 67. Roosevelt,5:669. 68. Roosevelt,5:673. 69. Reportof the President'sCommittee on AdministrativeManagement (Washington, D.C.: Govern- mentPrinting Office, 1937), 31, 2. 70. AlthoughJefferson's partisan opponents were easily vanquished, he facedcontinuing resistance to hisproject from his ideological base, domestic economic interests, and foreign agents. Drew R. McCoy, The Jefferson ElusiveRepublic (New York:W.W. Norton, 1980); ForrestMcDonald, The Presidencyof Thomas (Lawrence:University Press of Kansas, 1976), 75-160. Lincoln, of course, faced severe challenge to his constitutionalvision from the southern states, partisan foes, and internaldivisions within his own party. Skowronek,The Politics Presidents Make, 198-227. Reagan struggled with a powerfulopposition party and "liberalspecial interests."Ronald Reagan, The PublicPapers of the Presidentsof the UnitedStates: Ronald Reagan,1988-89 (Washington, D.C.: U.S. Government Printing Office, 1991), 1619. The reconstructive effort requiredchallenging the authority ofa myriadof opponents for all of these presidents. KeithE. Whittington383

TechniqueVersus Ideology

Animportant aspect of this presidential effort to shiftinstitutional authority over theConstitution is the reconceptualization ofthe nature of the Constitution and the judiciary.Within the politics of reconstruction,thejudiciary is portrayedas itself highlypoliticized.7 Whether because constitutional renewal is a politicaltask or becausethe judiciary has alloweditself to becomepoliticized, the reconstructive presidentasserts the need to reclaim control over the nation's constitutional future. Thejudicial claim to authority is forfeited through a demonstration that its project is an essentiallypolitical one. For reconstructive presidents, judicial authority is under- cutnot by the countermajoritarian problem but by the substantive nature of judicial actionin thathistorical moment. Presidential authority does notdepend on the eliminationof judicialreview, but rather on theappropriate delimitation of the sphereof judicial action. The judiciary retains authority to act, but only where its decisionscan be trulyregarded as "legal."During these reconstructive moments, theunderstood sphere of legality is substantiallyreduced, and the realm of politics is correspondinglyexpanded. Theabortion debate has recentlyexposed such a dynamicat work in thecon- trastingpositions of Jimmy Carter and RonaldReagan. As a politicaloutsider and born-againSoutherner, Carter faced a particularlydaunting task of maintaining an increasinglyfrayed party coalition, while also keepingfaith with the political image andconcerns that brought him to the presidency inthe first place. The Court placed abortionon thenational agenda, but its position was consistentwith that of the pro- gressivewing of the Democratic Party. As abortion polarized Democrats, the Carter administrationcould not take a clearposition on theissue. Party stalwarts were committedto theCourt's resolution of the abortion question, even as Carter'sown conservativeand evangelical characteristics appealed to pro-life voters. As a consequence,when pressed on howhe could"support abortion" in a 1980press confer- ence,Carter deferred to theCourt. Not only did the president distinguish sharply betweenhis personal beliefs on the issue and his politically salient policy stance, but he also deniedhis own power to take action on theissue at all. For Carter, the opti- malpolitical strategy was tomaximize the judicial authority toresolve the issue and removeabortion from the political arena. Thus, he insistedthat "I'm personally againstabortion," but he noted,"as PresidentI have taken an oathto upholdthe lawsof the United States as interpretedbythe Supreme Court of the United States. So, ifthe Supreme Court should rule, as theyhave, on abortionand other sensitive issuescontrary to myown personal beliefs, I have to carry out, in accordance with

71. Of course,some political actors are always likely to regardthe judiciary as politicized.E.g., Alan Westin,"The Supreme Court, the Populist Movement, and the Campaign of 1896,"Journal of Politics 15 (1953):3. Thekey question is whether dominant political actors take up sucharguments, orwhether such claimsremain the province of a marginalfew dissenting from a vital political regime. 384 PRESIDENTIALCHALLENGES TO JUDICIALSUPREMACY

mysolemn oath and my duties as President,the ruling of the Supreme Court."72 In thispolicy area, the president portrayed himself as a mereexecutive officer, not as a politicalagent. The presidential duty, as he portrayedit,was bothclear and rigidly administrative.73Asa private citizen, Carter might disagree with the substance of the Court'sdecision. But as a constitutionalofficer and political representative, thepres- identsupported the Court and was powerlessto resist it. Althoughnot central to his reconstructive effort, Ronald Reagan offered a radically differentview of the abortion debate. Benefiting from a relativelyunited party and a consistentpolitical profile, Reagan's political authority and electoralfuture were enhancedby politicizing the issue. Reagan's political authority derived from a con- servativebase thatexpected him to emphasizethe political mutability ofthe status quo on abortion.Thus, unlike Carter who emphasizedthat his hands were tied by thecourts that had sole authority tointerpret the law, Reagan insisted that "the issue ofabortion must be resolvedby our democratic process. Once again I callon Con- gressto makeits voice heard against abortion on demandand to restorelegal pro- tectionfor the unborn."74 Whereas Carter portrayed abortion as a legalissue about whichhe could have only personal views, Reagan insisted that abortion was a polit- icalissue about which policy should be made.Similarly, the Court's abortion rulings motivatedReagan's attorney general to endorsethe views of earlier reconstructive presidentson the authority ofthe Court. "Constitutional interpretation isnot the busi- nessof the Court only," Edwin Meese argued, "but also properlythe business of all branchesof government."75 As a result,the administration contended that "incor- rect"judicial rulings were entitled to no broaderapplication than to the immediate partiesin the single case. The president would not disobey the Court, but he would notadopt its interpretation ofthe laws either. Without sufficient congressional sup- portto threaten judicial independence, the president's efforts were as muchor more aboutpolitical authority as policy achievement. Inthis case, the judiciary served as a usefulfoil for Reagan to establishhis oppositional credentials. Reagan's position takingon theabortion issue was a sharpdeparture from that of previous administrations,but Republicans did nothave to bearthe policy consequences of their stronglypro-life stance.76 Undermining the judicial monopoly on constitutionalrea- soningand fosteringan alternativeconstitutional discourse that delegitimated the Courtwas partand parcel of Reagan's rhetorical effort as president.77

72. JimmyCarter, The PublicPapers ofthe Presidents of the UnitedStates: Jimmy Carter, 1980 (Wash- ington,D.C.: U.S. Government Printing Office, 1982), 2354. 73. See also,Mark A. Graber,"The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary," Studiesin AmericanPolitical Development 7 (1993): 46-50. 74. Reagan,Public Papers: 1983,876. 75. EdwinMeese, "The Law of the Constitution," Tulane Law Review61 (1987):985. 76. Devins,Shaping Constitutional Values, 56-148. 77. Itis significantthat the Reagan administration was bothforced to andwilling to adopta departmentaliststance on theabortion issue, even though abortion was notcentral to the administration's policy KeithE. Whittington385

Centralissues of government are redefined during reconstructions such that they becomeobjects of choice rather than faith. In that context, their very importance mil- itatesagainst judicial determination ofthe results. Abraham Lincoln was themost assertiveon thispoint, contending inhis First Inaugural that "if the policy of government,upon vital questions, affecting the whole people, is tobe irrevocablyfixed by thedecisions of the Supreme Court ... thepeople will have ceased to be theirown rulers."78Itwas thevery importance ofthe slavery issue that necessitated its demo- craticresolution. Moreover, the variability ofthe outcome emphasized the political characterof the issue; policy choice implied political jurisdiction. Lincoln's ringing endorsementofthe politicization ofthe slavery issue contrasts sharply with his pre- decessor'scareful effort todepoliticize the same. Four years earlier, James Buchanan hadargued that "differences ofopinion" on thisissue were "happily, a matter of but littlepractical importance," for"it is a judicialquestion, which legitimately belongs to theSupreme Court of the United States.""79 Itwas thepresident's duty, along with that ofall good citizens, to "cheerfullysubmit" to the Court's decision. Although "under oursystem there is a remedyfor all mere political evils in the sound sense and sober judgmentof the people. ... thisquestion of domestic slavery is offar graver impor- tancethan any mere political question." As a consequence,Buchanan called upon "everyUnion-loving man ... tosuppress this agitation."80 Itwas preciselybecause of the importanceof theslavery issue that Buchanan contended that it had to be depoliticized.Lincoln's conclusions were radicallydifferent from Buchanan's becausehis situation was radicallydifferent. Lincoln's own authority as the prophet ofa newconstitutional order was enhancedby drawing slavery firmly into the polit- icalrealm and inviting the agitation that Buchanan desperately sought to hold at bay. Lincolnpossessed the authority toaddress the slavery issue; Buchanan emphatically didnot. As a consequence,Buchanan sought to bolster the authority ofthe Court in orderto preserve the little authority that might still be availableto him, while Lincoln underminedthe Court in order to claim constitutional authority for himself.81

objectives.Reagan chose to politicizethe Court, but much of Reagan'sreconstructive project could be accomplishedwithout running afoul of judicial doctrine, eliminating the necessity of a Rooseveltianshow- downwith the Court. 78. AbrahamLincoln, Abraham Lincoln, ed. RoyP. Basler (New York: Da CapoPress, 1990), 585-586. 79. James Buchanan,The Works of James Buchanan, ed. John Bassett Moore, 12 vols. (Philadelphia: J.B.Lippincott, 1908-1911), 10:106. 80. Buchanan,10:109. 81. Itshould be emphasizedthat Buchanan and Lincoln also differed intheir relation to the substantive rulingsof the Court. Buchanan could afford to elevate judicial authority, and Lincoln was forcedto undermine as a it, consequenceof the Court's pro-slavery ruling. Departmentalism emerges out of contingent politicalsituations, not the intrinsic beliefs of individual occupants of theoffice. Notably, for Buchanan the defending Courtwas a favoredalternative todefending slavery directly. Regardless of judicial actions, theDemocrat Buchanan was requiredto be pro-slavery,buthis preference was notto have to talk about at andhe slavery all, hopedthat the Court could provide him the cover to shift politics away from the slav- eryissue. 386 PRESIDENTIALCHALLENGES TO JUDICIALSUPREMACY

The hollownessof Buchanan'seffort illustrates the larger dilemma that presidentsand judges share in such a vulnerablesituation. The old formulasno longer havethe ideological force to command authority. The ready claim that slavery was settledas a matterof inherited law was increasinglyimplausible. Both anti-slavery constitutionaltheories and increasinglystrained legislative efforts to compromise theslavery issue highlighted the fact that the status quo was contingentand discre- tionary.President Buchanan and Chief Justice Taney's claims that their hands were tiedby the requirements ofthe founders' Constitution were met with derision rather thansympathy orrelief. Lincolndid not deny that slavery was a constitutionalissue, but he insistedthat itsresolution was thepolitical task of the current people.82 From the perspective of thepolitical forces that buoyed Lincoln, the Court was merelypart of a "slavepower conspiracy"that sought to remove the decision from the people while hiding behind theConstitution. Though Lincoln granted that "we cannot absolutely know that all theseexact adaptations are the result of preconcert," the consistency ofthe actions ofDemocratic senators, presidents and justicesmade it "impossible not to believe that[they] worked upon a commonplan."83 The Constitution did not require Dred Scott;the political commitments ofthe slave power did. Once inherited legal formu- lassound empty and "mechanical," judicial authority is poised to be overthrown.As theRepublicans contended, under such circumstances the Court is entitledto no morerespect than "a majorityofthose congregated inany Washington bar-room."84 TheCourt had made a choiceabout America's constitutional future. But that was a choice,the Republicans insisted, that the Court had no rightto make. Withinthe politics of reconstruction,the judiciary'sposited "legal" solutions seemlike political assertions. Judicial judgments are construed as assertionsof judi- cialwill, and as a consequencethey are attackedpolitically by those with greater claimsto theauthority to makesuch decisions. Roosevelt saw theCourt as both politicaland partisan.On theeve ofhis first election, Roosevelt departed from his preparedtext in order to assert that "the Republican Party was incomplete control" of thecourts.85 Once in office,Roosevelt downplayed the particularlypartisan natureof the dispute in orderto emphasizethe broader question of who would controlAmerica's "constitutional destiny. "86 Ifdemocracy were to succeed, then the presidenthad to havethe power to "appointJustices who will act as Justicesand had not as legislators."s7The Jeffersonianssimilarly asserted that the judiciary

82. Lincoln,403. 83. Lincoln,377. 84. Quotedin Barry Friedman, "The History of the Countermajoritarian Difficulty, PartOne: The Road to JudicialSupremacy," New YorkUniversity Law Review 73 (1998): 428n385. 85. Roosevelt,1:837. 86. Roosevelt,6:130. 87. Roosevelt,6:129. See also,Robert H. Jackson, The Struggle for Judicial Supremacy (New York: Vin- tage,1941). KeithE. Whittington387

abandonedits appropriate legal tasks and enteredinto politics. The courtshad become,they contended, a mereoutpost of the electorallybanished Federalist Party,"and from that battery all the works of republicanism are to be beatendown anderased." 88The reconstructive attack on thejudiciary is not an attackon judicial independenceper se, buton whatis understoodto be theinappropriate politiciza- tionof the courts by those who had lost the authority to speak for the people.

IV.The Judiciaryin the Politicsof Reconstruction The judiciarynot onlyserves as a targetfor presidential attacks in these instances.The courts also serveas politicalagents helping to create the reconstruc- tivesituation in the first place. Presidents are not the only order-shattering actors on thepolitical stage.89 The Courthas also tendedto exacerbatethe crisis of the old regimeby pushing forward with its inherited and evolving political agenda even in theface of increasing tensions within the dominant political coalition. The judiciary providesonly a temporaryrefuge for adherents to theold orderas judicialaction widensexisting fissures and createsopportunities for a reconstructiveleader to exploit.90Likewise, the Court must make its own calculations as tohow to preserve itsauthority inthe face of presidential attack. Thejudicial challenge is to thepresident's legitimacy, as well as to hispolicies. Courtsthat have lagged the electoral returns have not always been activist courts. TheCourt has not always played the obstructionist role associated with the Hughes Courtduring the first New Deal.9'Nonetheless, the judiciary has been activein buildingits own authority toconstrue constitutional meaning, advancing its position as theauthority of electedofficials wanes, and retrenchingwhen reconstructive leaderstake the offensive. Often the crucial judicial move has not come in response to newlyelected political forces, but rather has come as theCourt seeks to consol- idateinherited constitutional understandings inthe late stages of a decliningregime. Inthis context, Roosevelt's "problem" was notsimply with the Court's obstruction of NewDeal legislation,but was also,and perhapsmore fundamentally, with the

88. Jefferson,Writings, ed. Washington,4:424-425. Similarly, the Jacksonians thought the courts were ravagedby "political bias" and had subverted constitutional principles oflimited government through their rulings,which required a political response to restore the judiciary toits proper sphere. Charles Warren, The SupremeCourt in American History, 2 vols. (Boston: Little, Brown, and Company, 1926), 1:633-687, 729- 779.Complaints about the politicization ofthe judiciary, and comparisons with the Dred Scott and Lochner Courts,were basic to Reaganiteconstitutional theory, which likewise sought to returnthe courts to the realmof mere law. Robert H. Bork,The Tempting ofAmerica (New York: Free Press, 1990): Meese, 979. 89. Skowronekargues that presidents cannot help but be order-shattering,butthat in the context of reconstructionthatdestructive effect is bothintentional and strategically helpful. The Court also finds itself shatteringreceived orders, but it is less clear that the effect isever either intentional orhelpful for the Court. InSkowronek's terms, I am herecasting the Court in the politics of preemption. 90. See also, Gates,The SupremeCourt and PartisanRealignment, 169. 91. Itcan be arguedthat the obstructionist nature of the Hughes Court has been generally overstated. See,Barry Cushman, Rethinking the New Deal Court(New York: Oxford University Press, 1998). 388 PRESIDENTIALCHALLENGES TO JUDICIALSUPREMACY

visionof the constitutional order that the Court had been articulating over the pre- viousdecades. As theabove cases alreadysuggest, the Court is an importantactor in structur- ingthe reconstructive situation. Presidents such as ThomasJefferson orAbraham Lincolnwere not intrinsically hostile to thejudiciary. Thomas Jefferson's relation- shipwith the Court would undoubtedly have been more cordial had he beenable toappoint Spencer Roane to be ChiefJustice rather than been faced with Adams's lameduckappointment ofJohn Marshall. Likewise, James Buchanan's and Abra- ham Lincoln'sresponses to the Courtmay have been reversedhad the Court stretchedto endorseabolitionist William Goodell's vision of theConstitution in DredScott rather than John C. Calhoun's.But if Jefferson and Lincolnhad feltno threatfrom the Court, they also wouldnot have been reconstructive leaders. The reconstructivestance emerges from the interaction of thepolitical situation and presidentialgoals. The Court helps shape that political situation, in these cases by cementingconstitutional understandings at odds withthose of the ascending administrations.Even absent specific knowledge of case outcomes,presidents such as Buchanancould be confidentinthe Court's role as a coalitionpartner. Both prior judicialappointments and earlierdoctrinal developments indicated the relative safetyof the Court for those affiliated leaders in the late stages of the regime. TheCourt can be expectedto help advance the goals of the old order.92 Affiliated politicalactors can be expectedto invite judicial intervention into political struggles, securein the knowledge that the Court will intervene on theirbehalf.93 The Court need notregard itself as partisanin suchsituations, for the constitutional under- standingsshared by those affiliated with the regime will be entrenchedand assumed. In thecontext of transitionalperiods, however, such actions can havepolitically destabilizingeffects. Judicial authority is strong at these moments precisely because regimeauthority isweak. Buchanan would not have needed to defer to the Court if he couldhave reconciled his competing political commitments on his own, or if he couldhave kept slavery off the national agenda entirely. He neededthe Court to offer a technicalresolution to theslavery issue, precisely because any explicitly political effortat resolutioncould be expectedto tearthe DemocraticParty apart, as Buchanan'sintervention in"Bleeding Kansas" later that year demonstrated.94 Butas Lincolnemphasized, a retreat into the politics of technique is unlikelyto be successfulin thelong term, even if it is theonly strategic move remaining for these hollowedout regimes.Thus, ChiefJustice Taney echoed President Buchanan'srhetoric in emphasizing the legal necessity of the Dred Scott decision. LikeBuchanan, Taney disavowed the political significance of hispersonal views, contendingthat "it is notthe province of the court to decideupon the justice or

92. Dahl,"Decision-Making ina Democracy," 284-286; Powe, The Warren Court, 485-501. 93. Graber,"The Nonmajoritarian Difficulty," 37-61. 94. KennethM. Stampp, America in 1857(New York: Oxford University Press, 1990), 295-322. KeithE. Whittington389

injustice,the policy or impolicyof these laws." But this disavowal reinforced the dutyof the Court "to interpret the instrument as [the founders] have framed it, with thelights we can obtainon thesubject, and to administer itas we findit, according tothe true intent and meaning when it was adopted."95Justice John Catron asserted thatsuch an unsettlingcontroversy "must ultimately be decidedby the Supreme Court,"and he urgedthe president to reinforcethat view.96 Similarly, the "Lochner- era"Court struggled to applylong-held constitutional principles to increasinglyvig- oroussocial and legislativechallenges. For the justices who wouldeventually be denouncedas "oldmen," reasserting inherited understandings was consistentwith boththe ideological commitments ofthe Republican Party and the neutral applica- tionof the law.97 As fissures within the governing coalition grow wider, and the hold of thatcoalition on electiveoffice grows weaker, the Court is increasinglycalled uponto defend the old order. Not only are affiliated politicians likely to shift policies to thejudicial arena for resolution, but legislation and decisionspercolating up throughthe judicial hierarchy are likelyto emphasize the disputed issues.98 As the old regimecollapses, the judiciary is likelyto be botha visibledefender of the old orderand one thatsurvives electoral turnover. Evenif the Court does notbecome an activistobstruction to the policy success ofthe reconstructive president, itwill remain a threatto the new regime's stability and legitimacy.The departmentaliststance undermines the Court's authority to challengethe new regime. The president reclaims the authority ofthe Constitution bydelegitimating the supremacy of theCourt. The presidentialemphasis on his ownauthority todefine constitutional meaning, however, is oftenaccompanied by moreimmediate efforts to restructurejudicial power. Reconstructive presidents havesignaled their willingness to ignoreor curb the Court, not just their disagree- mentwith its decisions. The weapons used to attack the Court have varied, from the Jeffersonianelimination ofjudgeships to Roosevelt'sefforts to packthe Court, but theyhave been consistent features of reconstruction politics. The authority ofthe reconstructivepresident to remakethe political landscape results in unusually close tiesbetween the White House and Congress.Although such unity does notguar- anteelegislative success, it does enhancethe likelihood of seriouscourt-curbing efforts.Moreover, such efforts have generally proven successful in forcingjudicial accommodationto politicalpressure, even without the actual restriction ofjudicial power.99For the Marshall Court, the judicial response included the exercise of the

95. Dred Scottv. Sandford,60 U.S. 393, 405 (1857). 96. Buchanan,10:106. Significantly, Justice Benjamin Curtis disagreed. See, Keith E. Whittington,"The Road NotTaken: Dred Scott,Constitutional Law, and PoliticalQuestions," Journal of Politics 63 (2001), 365. 97. HowardGillman, The Constitution Besieged (Durham: Duke University Press, 1993). 98. Gates,The SupremeCourt and PartisanRealignment, 169-183. 99. StuartS. Nagel,"Court-Curbing Periods in American History," Vanderbilt Law Review18 (1965): 925;Rosenberg, 378-383. 390 PRESIDENTIALCHALLENGES TO JUDICIALSUPREMACY

"passive-aggressivevirtues" as the Courtexploited opportunities to enhance its authoritywithout running afoul of Jeffersonian priorities.'00 Inthe New Deal context ofgreater judicial activism and a moreactivist legislative agenda, judicial retreat and ultimateco-optation was theonly viable outcome.'l' Judicial independence may insulatethe judiciary from normal political pressures, but the extraordinary cir- cumstancesof reconstructive politics are more likely to necessitate strategic adjust- mentsby the Court.102 When challenged by the politically powerful and active pos- tureof thereconstructive leader, judicial options have been severely constrained andjudicial authority has only been maintained by accommodating the new order. TheCourt does notexist outside of political time, but rather it both helps deter- minepolitical time and occupies a positionwithin it. Through its actions, the Court hasacted as a catalystfor change. It has provided a temporary shelter for politically besiegedpresidents, even as ithas sharpenedthe political crisis by reemphasizing thecrumbling constitutional construct of the old order. In doing so, the Court helps createthe political situation within which reconstructive leaders can emerge.The TaneyCourt could articulatethe pro-slaveryunderpinnings of the Democratic regimein a waythat Buchanan could not, but in doing so ithanded Lincoln the plat- formhe neededto makehis bid to restructurethe political landscape. In the wake ofthese electoral and ideologicalcrises, the Court has provenvulnerable. It has foundits options severely limited, and ithas maintaineda diminished authority by givingground to the reconstructive leader.

V. Contestfor Authority These cases of presidential-judicialconflict follow the patternsof behavior expectedby the political time approach as consistentwith struggles for political authority.Application of this approach to interbranchrelations raises a numberof suggestiveimplications for an understandingofthe separation of powersand of constitutionaltheory more broadly. Establishing a link between departmentalist presidentsand thepolitical time model also suggeststhe need to reconceptualize departmentalisttheory to take into account its cyclical appearance. In doing so, constitutionaltheory must be mademore dynamic in order to take into account the his- toricaloperation of political institutions. Finally, this analysis calls into question the centralityofthe judiciary in thinking about the Constitution and of the "counterma- joritarianquestion" in thinking about judicial review.

100.Mark A. Graber,"The Passive-Aggressive Virtues: Cohens v. Virginiaand theProblematic Estab- lishmentofJudicial Power," Constitutional Commentary 12(1995): 67. 101. Leuchtenburg,The SupremeCourt Reborn, 132-236. 102.E.g., Jack Knight and Lee Epstein,"On theStruggle for Judicial Supremacy," Law and Society Review30 (1996);87; Ackerman, We the People: Transformations, 255-382. Cf., Jeffrey A. Segal, "Separa- tionof PowersGames in thePositive Theory of Congress and theCourts," American Political Science Review91 (1997):28. KeithE. Whittington391

Reconsiderationofthe reconstructive presidencies makes sense of our historical intuitionsof judicial-presidentialconflict. Such conflict was realand explicablein politicalterms, but it did not turn on thequantification ofjudicial activism or an immediatedisagreement between the branches on policygoals. The constitution- alistperspective emphasizes the struggle for authority that is also partof the political realm,and theutility of that dimension for fully understanding political events. Thejudiciary and the presidency are not simply static entities with potentially con- flictingpreferences. They are also competing and dynamic institutions struggling for theauthority to define the nature of the political regime. The basis for that author- ityis grantedin the Constitution, but the extent of that authority is subject to histor- icalaction. The politicsof reconstruction hinges on theability of the president to bolsterhis authority todefine the new regime and to wrest control over the defini- tionof the constitutional order from other political actors, including the judiciary. Thiscontest for authority determines presidential power to reshapethe political futureand judicial authority to intervene inpolitical affairs. Theseconflicting authority claims arise naturally from the competing drives of thesepolitical institutions in the constitutional system, and is exacerbatedby the unusuallystrong claims of the reconstructive leader. The judiciary's implicit chal- lengeto presidential authority creates an openingas wellas a threatfor reconstructivepresidents. In thecourse of establishing their own constitutional vision, these presidentsmust necessarily shatter previously established constitutional under- standingslaid down by the Court. Taney was a threatto Lincoln not because of what he mightdo, butbecause of what he hadalready done. For Lincoln to succeedhe notonly needed to avoidthe judicial veto, he also neededto replaceTaney's con- stitutionallogic with his own. Such presidents need to reemphasizethe distinction betweenjudicial pronouncements and the Constitution itself, in order to create the spacefor them to imposetheir own gloss on thatfoundational text. The roleof theCourt in theAmerican constitutional system also createsan opportunityfor these presidents, for it may be usedas a foilto enhancethe president'sown authority.Given their unique authority position within political time, reconstructivepresidents are strengthened byopposition. These presidents come to powerwith a mandateto remakepolitics. Encountering resistance from defenders ofthe old order only serves to revivethat basic mandate. Politically isolated, judges makeparticularly good representativesof the old, discredited commitments and entrenchedinterests. As thosemost directly speaking in constitutionalterms, the courtsare likelysuspects in the subversion of the inherited Constitution, and con- flictwith the courts is a usefulplatform for articulating the president's own constitutionalvision. Judicial authority to defineconstitutional meaning is likelyto be weakestwhen contested by presidents armed with such a powerfulmandate. Locatingdepartmentalism within the reconstructivestance indicatesthat departmentalismis itself a cyclicalphenomenon. The historical use ofdepartmen- talistarguments indicates that departmentalism appears not as a basicprerogative 392 PRESIDENTIALCHALLENGES TO JUDICIALSUPREMACY

ofthe presidential office, but rather as a structurallydependent resource. Not every presidenthas access to the claims of authority that a Jeffersonora Lincolnhad, and as a consequencethe departmentalist logic does notapply to everypresident. AndrewJackson was notwrong in his advocacy of departmentalism, buthis posi- tionrelative to the Constitution isnot universally shared. James Buchanan could not lookto Jackson as a modelfor the everyday power of the presidency on thispoint, eventhough he couldbenefit from Jackson's efforts in redefiningand expanding theuse of the president's veto or his removal power over executive officers. Depart- mentalismemerges as an extraordinaryfeature of the constitutional structure, not as an ordinarypart of normal politics. Thedistinction is relevant to our specific evaluation of departmentalism as good constitutionaltheory. One of the enduring objections to departmentalism isthe threat oflegal and constitutional chaos that might follow in the wake of the acceptance of coordinateinterpretation of the Constitution. Ifthere were no hierarchyof inter- preters,itis thought, then the constitutional order would collapse under the weight of conflictingand irresolvableinterpretations.'03 This criticism gains its force, however, bybeing made in an ahistorical,apolitical context. The presidents with the authority to invokethe departmentalist logic are also particularlywell positioned to fosterthe politicalconsensus needed to restructureconstitutional meaning. If it is true,as EdwardCorwin argued, that the finality ofconstitutional meaning is theoutcome of the"continued harmony of views among the three departments," then the success of departmentalismultimately turns on theability of therelevant political actors to achievesuch a consensus.'"The alignment ofelected officials inthe politics of recon- structiontends to isolatethe Court and enhance the effectiveness ofthe departmentaliststance. Reconstructive presidents are notablefor their expansive authority to remakethe political environment intheir own image, resolving conflict through their ownpolitical actions rather than through judicial dictate. Although departmentalism maywell lead to deadlock for more constrained leaders, for reconstructive presidents deadlockonly becomes the opportunity for reorienting and expandingtheir own claimsto authority.'l5Such a politicalreconstruction ofthe constitutional order may stillraise normative concerns regarding the types of values being advanced by presi-

103.E.g., Alexander and Schauer,"On ExtrajudicialInterpretation," 1371-1385; Erwin Chemerinsky, Interpretingthe Constitution(Westport, CT: Praeger,1987), 96. 104. Corwin,Court Over Constitution,7. 105.This also suppliesthe answer to thepresumably knockdown question of what if Richard Nixon hadsimply refused to produce the tapes in response to court order. The answer is mostlikely the same as towhat if Nixon had refused to resign-he would have been impeached. The waxing of congressional and judicialauthority mirrored Nixon's lack of authority. Nixon was "forced"to obey the Court's order because Nixonwas no Lincoln-hedid not have the authority to put forward departmentalist claims plausibly. AlthoughNixon cannot be decisivelyplaced in political time here, he has been neither traditionally regarded as a "departmentalist"president nor classified by Skowronek as reconstructive.Foranalysis of Nixonian conflictsas primarilydefensive and legalistic, see alsoWhittington, Constitutional Construction, 158-206; L.H.LaRue, Political Discourse (Athens: University ofGeorgia Press, 1988). KeithE. Whittington393

dents.The difference between Andrew Jackson's and JohnMarshall's approach to Indianclaims highlights this concern. Other presidential conflicts with the Court, such as Lincoln'sor Roosevelt's, belie any ready valorization ofthe judiciary's Constitution, however.Normative examinations ofthe value of judicial review should take account ofsuch historical instances of constitutional politics.106 Contextualizingdepartmentalist theory in this fashion has a significantimplica- tionfor constitutional theory more broadly. Specifically, departmentalist practice suggeststhe need to recognizethe dynamic nature of the Constitution, which in turnrequires recognizing the relationship between politics and theConstitution. Thedeductive reasoning of traditional constitutional theory draws from a modelof the Constitutionas a purelylegal text.Constitutional interpretation provides dichotomousabsolutes-an action is eitherconstitutionally permissible or itis not, an interpretationis either correct or itis wrong.Although aspects of the text oper- ate inthis fashion, the Constitution is also a politicaldocument.' 7 As such, constitutionalmeaning emerges from the integrationof politicalevents and textual authority.Constitutional theory has createdan either/orchoice between depart- mentalistand juristic conceptions of constitutional review. In practice, however, the Constitutionhas notpresented that stark choice. Under certain conditions, depart- mentalismbecomes available. In most circumstances, presidents lack the authority to layclaim to sucha power.Presidential authority under the Constitution cannot simplybe claimed;it must be constructed.At the same time,conflicts between divergentpolitical institutions, such as thepresident and thejudiciary, have been significantto forcingconstitutional development and shapingour constitutional understandingsand practices.'08 The Constitution is not "up-dated" through judicial actionand deliberation alone, but through the interaction ofcompeting actors with distinctgoals and missions. Anadditional set of implications relevant to theorizingabout judicial independenceand the justification forjudicial review should be madeexplicit. Robert Dahl's conclusionthat the Court is rarelycapable of acting as a countermajoritarianinsti- tutionhas been more recently echoed. Rosenberg, for example, has argued that the judiciaryis least likely to resist political initiatives precisely "when it is the most necessary"to do so, whenthe Court's interpretations are being challenged.'09 The exampleof the reconstructive presidents, however, suggests that the normative les- sonsto be drawnfrom such conflicts are not so clear.The normative literature on judicialreview has generallyassumed that the Court alone is the"forum of princi-

106.Cf., Jeremy Waldron, Law andDisagreement (New York: Oxford University Press, 1999). 107.Stephen M. Griffin, American Constitutionalism (Princeton: Princeton University Press, 1996), 13-58. 108.See also,Karen Orren and Stephen Skowronek, "Beyond the Iconography ofOrder: Notes for a 'NewInstitutionalism'," inThe Dynamics of American Politics, edited by Lawrence C. Doddand Calvin Jill- son (Boulder,CO: Westview Press, 1994). 109.Rosenberg, "Judicial Independence," 394. 394 PRESIDENTIALCHALLENGES TO JUDICIALSUPREMACY

pie"in the American system and thatpolitical action merely reflects unconsidered policydesires. 10 This substantive judgment requires further consideration. Judicial retreatin the face of the presidential offensive is only problematic ifthe judiciary is clearlyidentified with correct constitutional values. If, however, constitutional prin- ciplesare themselves being contested by the various branches of government, then itmakes little sense to favorautomatically the judiciary's preferred interpretation. Again,the assumption that the Taney Court was a betterguardian of the Constitu- tionthan Lincoln may depend on misplacedcomparisons with other moments in politicaltime and on theassumption that there is no politicsof authority but only a politicsof interest. That the Court is sometimesmore principled than elected offi- cialsdoes notdemonstrate that the Court is always more principled, orthat its prin- ciplesare necessarily correct. Judicial authority to interpret the Constitution waxes andwanes. Taking seriously the authority claims of other political actors suggests thatsuch variation may be highlyappropriate as electedofficials occasionally adopt a leadershiprole in determining contested constitutional meaning. Thisanalysis also suggests that judicial authority is at itsweakest when the judiciaryis perceivedto be highlypoliticized. The waning of judicial authority within politicaltime is markedby a numberof features. The above analysis indicates the periodicpresidential challenge to judicial supremacy. To take another measure, the introductionof bills to restructureand reinin thejudiciary is also periodic,with leadershipsupport for such measures and their relative success most likely to come duringthese same reconstructiveperiods."' Such efforts are consistentwith the unwillingnesson thepart of elected officials to deferto the judiciary in its efforts at constitutionalinterpretation. Such activismon the partof the electedofficials reflectsboth substantive disagreement with the Court and an increasingbelief that thejudiciary is notengaged in a functionallyunique task. A seeminglypoliticized judiciaryis fairgame for political intervention. Judicial authority to act independ- entlyof other government officials depends on thebelief that the courts are gen- uinelyengaged in a taskthat is the"proper and peculiar province of the courts," as AlexanderHamilton claimed.12 The politicalevaluation of and responseto the courtsdepends on theperceived character of judicial action, not its frequency. Ifjudicial authority isat its nadir exactly when legalistic models expect the courts to be mostactive, then scholarly efforts to justifyjudicial review need to move beyondtheir emphasis on thecountermajoritarian problem. When the Court is likelyto be genuinelycountermajoritarian, itsclaims to exclusiveguardianship of

110. E.g.,Dworkin, A Matterof Principle,9-102. 111. Nagel,"Court-Curbing Periods," 927. 112.Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. ClintonRossiter (New York:Mentor, 1961), 467. See also, SylviaSnowiss, Judicial Review and theLaw of the Constitution (NewHaven: Yale University Press, 1990); Keith E. Whittington,"Reconstructing theFederal Judiciary: The Chase Impeachmentand theConstitution," Studies in AmericanPolitical Development 9 (1995): 55. KeithE. Whittington395

theConstitution are already heavily discounted in the political realm. On theother hand,if judicial authority is greater at othermoments in politicaltime, then the countermajoritariandifficulty may not be theright way to conceptualizethe problem.If, contrary to Dahl'sexpectations, the judiciary is authorizedto takeaction whenit is at leastputatively part of thedominant governing coalition, then our effortstounderstand and provide justifications forthat authority must focus on judi- cialactivism within the dominant coalition rather than against antagonistic majorities.That the Courtis moreoften engaged in intracoalitionalconflicts than in defendingminorities against a monolithicmajority does notmake judicial review anyless problematic from the perspective of democratictheory. Itdoes, however, suggestthat the Court'srole within the constitutionalsystem requires further thought."13This analysis suggests the need not only for a reconsiderationofnorma- tiveconstitutional theory, but also forits connection to theempirical study of judicial authorityacross different political periods. The politicaltime model is at least suggestiveof the issues to be consideredin those other moments of political time. The developmentof intracoalitional splits, increased divisions between the presidentand Congress, and the effects of judicial appointment will need to be explored inthe context of regime orders and judicial authority. The countermajoritarian diffi- cultyneeds to be putinto a dynamicpolitical context in which judicial review often servesrather different functions. Therelationship between the judiciary and the elected branches is a contingent one.The actions taken by elected government officials have serious implications for the authorityof judgeswithin the constitutional system. At times, judges enjoy extensiveauthority toexercise their powers actively and exploit their independence. Atother times, judicial authority wanes and judicialindependence gives way to challengesto theCourt's interpretation ofthe Constitution. Our understanding of thisprocess has been hamperedby theexample of FranklinRoosevelt and the flawedanalytical assumptions that we havebrought to our examination ofhis rela- tionshipto the judiciary. Minimizing questions of constitutional authority inorder to focuson conflictingpolicy preferences and judicialobstruction of government actionnot only flattens our understanding ofinterbranch relations, but also failsto explainthe empirical evidence. Likewise, treating judicial authority as a matterof deductivelogic flowing from a politicallyand historicallyabstracted Constitution misconstruesthe dynamic and politicalnature of constitutional governance. Con- sideringjudicial authority in politicaltime provides a betterperspective on the changingrelations among government officials and the subtle contours of Ameri- can constitutionalism.

113.See also,Graber, "Nonmajoritarian Difficulty"; Friedman, "History ofthe Countermajoritarian Dif- ficulty";Ackerman, We thePeople: Foundations;Cass Sunstein,The PartialConstitution (Cambridge: Har- vardUniversity Press, 1993).