Alabama Law Scholarly Commons Working Papers Faculty Scholarship 5-5-2017 The Origins (And Fragility) of Judicial Independence Felicia A. Burton College of William and Mary - School of Law, [email protected] Tara Leigh Grove University of Alabama - School of Law, [email protected] Christopher Cody Watson [email protected] Follow this and additional works at: https://scholarship.law.ua.edu/fac_working_papers Recommended Citation Felicia A. Burton, Tara L. Grove & Christopher C. Watson, The Origins (And Fragility) of Judicial Independence, (2017). Available at: https://scholarship.law.ua.edu/fac_working_papers/117 This Working Paper is brought to you for free and open access by the Faculty Scholarship at Alabama Law Scholarly Commons. It has been accepted for inclusion in Working Papers by an authorized administrator of Alabama Law Scholarly Commons. THE ORIGINS (AND FRAGILITY) OF JUDICIAL INDEPENDENCE Tara Leigh Grove William & Mary Law School 71 VAND. L. REV 465 (2018) William & Mary Law School Research Paper No. 09-357 This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract=2963683 Grove_Galley The Origins (and Fragility) of Judicial Independence Tara Leigh Grove* The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article III judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court’s size in order to pack it with like-minded Justices. And yet a closer look reveals that these “self- evident truths” of judicial independence are neither self-evident nor necessary implications of our constitutional text, structure, and history. This Article demonstrates that many government officials once viewed these court-curbing measures as not only constitutionally permissible but also desirable (and politically viable) methods of “checking” the judiciary. The Article tells the story of how political actors came to treat each measure as “out of bounds” and thus built what the Article calls “conventions of judicial independence.” But implicit in this story is a cautionary tale about the fragility of judicial independence. Indeed, this account underscores the extent to which judicial independence is politically constructed and historically contingent. Particularly at a time when government officials seem willing to depart from other long- standing norms, federal judges should take none of their current protections for granted. * Professor of Law, William & Mary Law School. I am grateful to Curt Bradley, Aaron Bruhl, Andrew Crespo, Barry Cushman, Neal Devins, Richard Fallon, Josh Fischman, David Fontana, Mark Graber, Aziz Huq, Vicki Jackson, John Jeffries, Johanna Kalb, Mike Klarman, David Landau, Alli Larsen, Daryl Levinson, Marin Levy, John Manning, Gillian Metzger, Martha Minow, Henry Monaghan, Nick Parrillo, Jim Pfander, David Pozen, Daphna Renan, David Shapiro, Shirin Sinnar, Seth Tillman, Keith Whittington, Ann Woolhandler, and Tim Zick for helpful discussions or comments on earlier drafts. This project was presented at the University of Virginia School of Law, New York University School of Law, and the Federal Courts Roundtable: Historical Practice and the Federal Judicial Power at Duke Law School. I am grateful for the comments from participants at those events. I would also like to thank Mary Kathryn Atkinson, Jonathan Barsky, Sam Lee, Andrew Lowy, and William Waller for excellent research assistance. 465 Grove_Galley (Do Not Delete) 3/7/2018 9:48 AM 466 VANDERBILT LAW REVIEW [Vol. 71:2:465 INTRODUCTION ............................................................................. 467 I. PROTECTING JUDICIAL TENURE ......................................... 473 A. The Uncertain Teachings of Text and History ........ 475 B. The Precedent of 1802 ............................................ 477 C. Congressional Power from the 1802 Repeal to the Commerce Court ..................................................... 480 1. Removal Power in the Nineteenth Century . 480 2. The Fight over the Commerce Court ........... 482 D. The Gradual Development of the Modern Consensus .............................................................. 484 II. COMPLYING WITH FEDERAL COURT ORDERS ...................... 488 A. Constitutional Text and Structure .......................... 489 B. The Acceptance of Past Violations .......................... 490 1. Federal Officials .......................................... 490 2. State and Local Officials ............................. 493 C. The Transition Period: The Civil Rights Movement ............................................................... 496 D. The Modern Convention Requiring Compliance ..... 498 1. Compliance by the Federal Executive ......... 499 2. Modern Compliance by State and Local Officials ....................................................... 502 III. CONVENTION AGAINST COURT PACKING ............................ 505 A. The Uncertain Teachings of Text and History ........ 506 B. The Debates over the 1937 Court-Packing Plan ...... 508 C. A Constitutional Amendment to Stop Court Packing .................................................................. 510 D. Court Packing as a Negative Precedent .................. 512 1. The Use of “Court Packing” to Condemn Other Court-Curbing Bills .......................... 512 2. “Court Packing” in the Appointments Process ........................................................ 514 IV. THE CONTINGENCY OF OUR CONVENTIONS ........................ 517 A. The Lack of a Convention Against Jurisdiction Stripping ................................................................ 517 1. The Early Political History of Court-Curbing Measures ..................................................... 519 2. The Different Path of Jurisdiction Stripping ..................................................... 522 B. Possible Explanations? ........................................... 526 C. Constructing Narratives ......................................... 528 1. Narratives that Protect Judicial Independence .............................................. 529 Grove_Galley (Do Not Delete) 3/7/2018 9:48 AM 2018] JUDICIAL INDEPENDENCE 467 a. Judicial Tenure ................................ 529 b. Complying with Federal Court Orders .............................................. 531 c. Convention Against Court Packing ... 532 2. A Narrative of Congressional Control ......... 533 a. The Gradual Development of the Narrative .......................................... 534 b. Evaluating the Narrative .................. 536 D. The (Overlooked) Fragility of Judicial Independence ......................................................... 538 1. “Conventions” Versus “Law”........................ 539 2. The Contingency of Conventions ................. 542 CONCLUSION ................................................................................ 544 INTRODUCTION We hold certain truths of the federal judiciary to be self-evident. Article III judges are entitled to life tenure and salary protections, and cannot be removed outside the impeachment process.1 Political actors must comply with federal court orders.2 And “packing” the Supreme Court is wrong.3 These assumptions are so deeply ingrained in our public consciousness that it rarely occurs to anyone to question them. But a closer look reveals that these “truths” are neither self- evident nor necessary implications of our constitutional text, structure, 1. See United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955) (“[Article III] courts are presided over by judges appointed for life, subject only to removal by impeachment.”); Vicki C. Jackson, Packages of Judicial Independence: The Selection and Tenure of Article III Judges, 95 GEO. L.J. 965, 987 (2007) (describing this rule as the “traditional understanding”). 2. See Daniel J. Meltzer, Lecture, Executive Defense of Congressional Acts, 61 DUKE L.J. 1183, 1191 (2012) (“[M]ost commentators . concede that the president may not defy a judicial order . .”); David E. Pozen, Self-Help and the Separation of Powers, 124 YALE L.J. 2, 34 (2014) (“When modern Presidents believe the Supreme Court has misconstrued the Constitution, they nonetheless acquiesce in its judgments . .”); see also Nicholas R. Parrillo, The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power, 131 HARV. L. REV. 685, 688, 700, 702 (2018) (noting norms of compliance by state and federal agencies, but urging that agencies may struggle to comply with orders compelling action). 3. By “court packing,” I refer to the practice of modifying the Court’s size to change the future course of its decisions. Other scholars have recognized that this practice is “out of bounds” politically, even though there are good textual and historical reasons to assume it is valid. See Michael C. Dorf, How the Written Constitution Crowds Out the Extraconstitutional Rule of Recognition, in THE RULE OF RECOGNITION AND THE U.S. CONSTITUTION 69, 74 (Matthew D. Adler & Kenneth Einar Himma eds., 2009); Ronald J. Krotoszynski, Jr., The Unitary Executive and the Plural Judiciary: On the Potential Virtues of Decentralized Judicial Power, 89 NOTRE DAME L. REV. 1021, 1063–64 (2014). My goal here is to trace how court packing came to be seen as “out of bounds.” See infra Part III. Grove_Galley (Do Not Delete) 3/7/2018 9:48 AM 468 VANDERBILT LAW REVIEW [Vol. 71:2:465 and history. Instead, these rules of our federal judiciary