Über die Autorin bzw. den Autor

Justin Crowe is assistant professor of political science at Williams College.

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"With the arrival of this book, the idea that elected politicians and unelected judges operate in separate spheres finally has to be put aside. A blockbuster work, this magnificent rendition of how Congress has built federal judicial power invites us to recognize the national judiciary as a central actor in American politics, placed there by continuous legislative design."--Rick Valelly, Swarthmore College

"Building the Judiciary reveals a fascinating paradox of American political development: the courts are periodically pulled into partisan rancor and interbranch warfare, and yet these episodes have resulted in the building of an autonomous and powerful judiciary. This pathbreaking book is a major contribution to understanding how judges have participated in institutional reforms that have forged a unique American state and is a must read for understanding the politics of judicial statecraft."--Sidney Milkis, University of Virginia

"Accurate, accessible, and sound, this book is a much-needed comprehensive developmental history of the entire federal court system. It is a valuable reference work for lawyers, historians, political scientists, and anyone else interested in this subject."--Mark Graber, University of Maryland School of Law

"This is an excellent book, richly textured and nicely argued. Crowe is to be commended for so successfully analyzing the development of the judiciary, given the broad sweep of history covered. His book is a significant contribution to the study of law and courts and will cement the author's reputation as one of the field's brightest young stars."--Kevin McMahon, Trinity College

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Building the Judiciary

PRINCETON UNIVERSITY PRESS

Contents

ACKNOWLEDGMENTS.................................................................ixONE The Puzzle of Judicial Institution Building.................................1TWO The Early Republic: Establishment...........................................23THREE Jeffersonian and Jacksonian Democracy: Reorganization.....................84FOUR The Civil War and Reconstruction: Empowerment..............................132FIVE The Gilded Age and the Progressive Era: Restructuring......................171SIX The Interwar and new Deal years: Bureaucratization..........................197SEVEN Modern America: Specialization............................................238EIGHT Judicial Power in a Political World.......................................270INDEX...........................................................................281

Chapter One

When the United States Supreme Court convened for the first time in history at the Royal Exchange Building in New York City on February 2, 1790, it was a sorry scene, and even the justices knew it. With only four of George Washington's initial six nominees bothering to show up and the Court lacking even a single case to hear, Chief Justice John Jay and his three colleagues in attendance—associate justices James Wilson, William Cushing, and John Blair—spent the session devising procedures for the conduct of actual business. The justices could not have known then that they would have no such business for another eighteen months, but, in retrospect, the dearth of activity demonstrated how the Court's institutional beginnings were inauspicious and suggested that its likelihood of exerting any measurable direction on the course of American life was slim.

When, more than two hundred years later, the Court convened for one of the most dramatic moments in its history at its own building in Washington, D.C., on December 11, 2000, it was a stunning spectacle, and all of America knew it. With Chief Justice William Rehnquist at the helm, all nine justices sat at attention for the day's lone case, an election dispute summoned from the Florida Supreme Court, a thorny little matter known as Bush v. Gore. The justices steadfastly focused their questions on the arcane interstices of finely wrought election procedures, but, with two of the nation's leading lawyers—future solicitor general Ted Olson and former government litigator David Boies—arguing and many citizens subsequently listening in via an immediately released (and nationally broadcast) audio recording, the remarkable and incontrovertible fact that a presidential election hung in the balance raised the possibility that the Court sat at the apex of not just the American judiciary but the entire American political system.

The dissimilarity between these two snapshots in the Court's history could not be more profound. With several distinguished men having refused appointment and the docket languishing without any substantial business, the Court of the late eighteenth century was a feeble institution. It lacked prestige, respect, and power; it had no building, a small budget, and was largely controlled and handicapped by the other branches of government. By contrast, with persistent struggles over judicial nominations and recurrent attempts to restrict jurisdiction over controversial issues (abortion, flag burning, and gay marriage, for instance), the Court of the early twenty- first century is clearly considered significant enough to warrant a fight. It is not only prestigious and revered but also powerful, politically important, and highly contentious; it hears and decides cases in its own "marble temple," has a significant budget, and is sufficiently independent from the other branches to govern its own affairs. How did such a dramatic evolution occur? How did the federal judiciary in general, and the Supreme Court in particular, transcend its early limitations and become a powerful institution of American governance? How, in other words, did we move from a Court of political irrelevance to one of political centrality? Those are the principal questions driving this book.

From Judicial Exceptionalism to Architectonic Politics

The conventional wisdom about—the "textbook" answer to—these sorts of questions emphasizes federal judges, specifically Supreme Court justices, wielding the power of constitutional interpretation. Marbury v. Madison is decided, (invalidating Section 13 of the Judiciary Act of 1789 as in conflict with Article III). and judicial review exists. Cooper v. Aaron is decided, and judicial supremacy exists. In this understanding, judicial power expands when judges issue opinions that directly expand it. Courts—and, most often, the Supreme Court—unilaterally determine the contours and extent of judicial power with little or no interference from other political actors. The story of the federal judiciary's transformation unfolds internally, with the Court occupying the central position, constitutional interpretation the central tool, and all other actors and forces relegated decidedly to the background.

In part, this emphasis on judicial prerogative stems from a prevailing but problematic ethos of "judicial exceptionalism." Endemic to far too much scholarly work in public law, judicial politics, and American political development, this ethos manifests itself in the twin suppositions that the judiciary is institutionally separate from and institutionally thin when compared to other political institutions. First, given their lifetime tenure, their officially "nonpartisan" identity, and, most important, their unique role in interpreting the Constitution, we tend to treat judges as though they were endowed with some sort of special status that elevates them above—or at least distinguishes them from—"ordinary" politics and politicians. Conflating the Constitution and the Court, we largely assume—despite sustained political debate over this perspective from the earliest days of the republic to today—that the hallowed status of the former automatically and necessarily redounds to the latter, thereby isolating, insulating, and revering the Court simply because of its contested place as the "Platonic guardian" of the constitutional order. Second, with a few exceptions, we ostensibly think of courts as lacking the complex institutional features—namely, collections of structures and rules that serve to influence behavior and regulate the exercise of power—that make political institutions worth studying. While the legislative branch has a hierarchical system of committees and subcommittees and the executive branch has a vast bureaucracy comprising layers of political appointees and civil servants, the judicial branch has only some courts, some judges, and some clerks—or so the lack of attention to the institutional context of the judiciary would have us believe. The combined effect of these two perspectives—simultaneously overestimating the judiciary's position and underestimating its depth relative to other political institutions—is to obscure the variety of ways in which courts and judges both gain and exercise power.

As we shall see, judicial power grows from more than merely constitutional decisions or the exercise of judicial...