When the Supreme Court is Out of Control

[David Lockmiller]

We have addressed on this website what President Lincoln did when the Supreme Court (or, at least Chief Justice Taney) was out of control on the subject of President Lincoln's suspension of habeas corpus in particular instances during the Civil War.

Today's (May 23, 2023) New York Times has a Guest Essay by Stephen I. Vladeck, a professor at the University of Texas School of Law and the author of the book “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”

The title of his Guest Essay is "Public Criticism Might Be the Best Way to Reform the Supreme Court." I quote therefrom two instances of similar nature in subsequent Supreme Court American history similar to that addressed by President Lincoln:

Perhaps the most famous example of the court’s responding to public criticism came in 1937. After the 1936 election, in which President Franklin Roosevelt ran as much against the court — which was blocking economic measures meant to respond to the dire conditions of the Depression — as against Gov. Alf Landon of Kansas, Justice Owen Roberts made “the switch in time that saved nine,” a shift that historians debate was either because of Roosevelt’s proposal to add six seats to the court or, more generally, in response to the broader atmospherics of the president’s re-election. Either way, the court’s shift was precipitated by substantial public backlash against its recent behavior, and it opened the door to an era of greater judicial deference to economic regulation and greater judicial protection of civil rights.

To similar effect (albeit in a different direction), the Supreme Court of the mid-1970s responded to public criticism on the issue of the death penalty. When the justices effectively imposed a nationwide moratorium on capital punishment in 1972, the political backlash was extraordinary — at both the state and federal levels. In exchange for adopting a series of procedures designed to make imposition of the death penalty less arbitrary (at least in appearance), dozens of states and Congress aggressively pushed the court to reauthorize capital punishment. On July 2, 1976, the court acquiesced.