Chopping Off the Weakest Branch
By RON CHERNOW
Published: May 6, 2005
LEADING evangelical conservatives are taking on the federal judiciary, which they see as hostile to religion, and they have much more in mind than simply putting an end to Senate filibusters against judicial nominees. Some have now proposed that Congress cut off federal financing for judges and even abolish some lower-level courts that they feel have issued decisions that mandate a secular, anti-Christian state. "We set up the courts," said the House majority leader, Tom DeLay, a key ally of the evangelicals. "We can unset the courts. We have the power of the purse."
Some religious political leaders are fond of invoking the nation's founders as kindred spirits. But those founders - a notably fiery, opinionated bunch - seldom spoke with one voice on any issue, especially when it came to the federal judiciary. How Thomas Jefferson or Alexander Hamilton would have felt about Senate filibusters against judicial nominees we can only speculate, as the filibuster wasn't introduced until 1825.
But as for denying money to or dismantling courts, historians can speak with far greater authority. This is because we are witnessing a re-enactment of a historic drama that unfolded two centuries ago, shortly after Thomas Jefferson's election as president.
First some background. At the time of the Constitutional Convention, it was widely assumed that the judiciary would be the feeblest branch of government. The very order of the Constitution's articles - with the legislature covered in Article 1, the executive in Article 2, and the judiciary in Article 3 - tacitly underscored the presumed order of importance.
This didn't please everyone, especially New York's legal wunderkind and the impresario of The Federalist Papers, Alexander Hamilton. In Federalist No. 78, he fretted that the judiciary "has no influence over either the sword or the purse ... and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." In No. 79, he brooded about abuses that might arise from legislative tampering with judges' salaries. "In the general course of human nature," he wrote, "a power over a man's subsistence amounts to a power over his will."
To offset these handicaps, Hamilton endorsed the constitutional provision that federal judges should serve for life, subject to impeachment only for official misconduct, not for unpopular decisions: "The complete independence of the courts of justice is peculiarly essential in a limited constitution."
In the early years of the new government, many of Hamilton's forebodings about judicial weakness were realized. The Constitution had specifically called for a Supreme Court, but had left the formation of the lower courts to Congressional discretion. Congress dithered, and the Supreme Court justices had to endure the hardship of riding the circuit in the hinterlands for weeks or months each year, often spending more time on horseback than on the bench. This situation also placed them in the potentially awkward situation of having to listen to appeals of decisions by circuit courts on which they themselves had sat.
This disgraceful state was remedied at a most inauspicious moment: the interval between Thomas Jefferson's election as president and his taking office. The lame-duck Congress, still controlled by Hamilton's Federalist Party, passed the Judiciary Act of 1801, which created 16 circuit court judgeships. Jefferson's Republican Party blasted this as a last-minute, partisan maneuver, and with some justification: President John Adams, in his waning days in power, named a phalanx of Federalist judges to the posts. Adams had also appointed John Marshall, a distant relative and confirmed enemy of Jefferson's, as chief justice.
George Washington and Adams had been at least nominal Federalists, so President Jefferson and the new Republican-dominated Congress faced a judiciary under unanimous Federalist control. "The Federalists have retired into the judiciary as a stronghold," wrote an indignant Jefferson, "and from that battery all the works of republicanism are to be beaten down and erased."
The president supported a full-blown Congressional purge of the federal courts, centered on repealing the Judiciary Act of 1801 and eliminating the new judgeships it had created. Jefferson also hoped to oust sitting judges through impeachment. The atmosphere in Washington grew poisonous with partisan bickering. William Branch Giles, an ally of Jefferson's in the House, wrote heatedly to the new president that "the revolution is incomplete so long as the judiciary is in possession of the enemy."
Hamilton, aghast at Jefferson's plans, was driven to lofty oratory. At an emergency meeting of the New York City bar in February 1802, he prophesied: "The independence of the judges once destroyed, the Constitution is gone; it is a dead letter." In the newspaper he had recently helped found, The New-York Evening Post, he warned of the danger posed to the separation of powers if Congress scuttled the courts it had created: "Who is so blind as not to see that the right of the legislature to abolish the judges at pleasure destroys the independence of the judicial department and swallows it up in the impetuous vortex of legislative influence?"
Yet in March 1802, the House of Representatives, in a vindictive mood against the Federalists, repealed the Judiciary Act by an overwhelming margin (the Senate had already passed the repeal by a one-vote margin). When Hamilton and other Federalists tried to appeal the constitutionality of this action before the Supreme Court, the Jeffersonian Congress brazenly cancelled the next two terms of the high court, disabling it for the rest of the year.
With no new circuit judges to take on cases, the members of the high court went on wearily riding the back roads of America. When in Washington, they met not in a marble temple but in a noisy basement chamber of the Capitol. Yet they were about to stage a magnificent comeback, taking advantage of their explicit constitutional protections.
In February 1803, Chief Justice John Marshall enshrined the principle of judicial review - that is, the court's power to declare acts of Congress unconstitutional - in his decision for the seminal case of Marbury v. Madison. While the issue at hand was minor - it concerned whether the Jefferson administration was required to give a post to a justice of the peace appointed under Adams - Marshall's argument that "an act of the legislature repugnant to the Constitution is void" solidified the judiciary's standing against the other two branches.
Jefferson, who would later denounce the "twistifications in the case of Marbury," wasn't finished with his vendetta against the federal judiciary. In late 1803 the House impeached a district judge, John Pickering (who was convicted), and in 1804 Associate Justice Samuel Chase of the Supreme Court (who was not). Ultimately, though, the president was defeated by Marshall, whom he dubbed "the Federalist serpent in the democratic Eden of our administration." Marshall served an astounding 34 years in the top judicial post, steadily extending the power of the government along Hamiltonian lines.
So, before they starve the lower courts of funds, Republicans in Congress and the conservative evangelicals who support them would be wise to ponder these events of the early 1800's. For all the talk today of tyrannical judges, the judiciary still relies on Congress for its financing and on the executive branch to enforce its decisions. It could easily, once again, end up at the mercy of the other two branches, upsetting the delicate balance the framers intended.