Über die Autorin bzw. den Autor

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

Von der hinteren Coverseite

"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

Auszug. © Genehmigter Nachdruck. Alle Rechte vorbehalten.

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 review; indeed, it more commonly and more foundationally derives from interaction with political elites, from empowering legislation, and from public, media, and interest group support. Judicial power is likewise expressed not simply through jurisprudential constructions such as the "clear and present danger" test or the "state action" doctrine but more frequently (albeit less dramatically and less controversially) through procedural mechanisms such as removal and rule making. Thus, even if the traditional focus on "rule by judges" may be warranted in some respects, it takes for granted the ways in which courts and judges become institutionally equipped to rule. In seeking to understand how judges rule, we have largely neglected the conditions that have made it possible for judges to rule; in emphasizing how the judiciary acts upon politics, we have minimized the ways in which it is equally acted upon by politics. Thus, even as we know a great deal about the political consequences of judicial power, its effect on structures of power or individual rights, and its expression through constitutional review, we lack a holistic narrative about the historical processes contributing to the rise of the federal judiciary (or even just the Supreme Court) as an independent and autonomous institution of governance in the American political system.

As a result, my central concern in this book is with what might be called "architectonic" politics: the politics of actors seeking to shape the structures of government in order to further their own interests. After all, as political scientists (and sociologists) have recognized since Peter Bachrach and Morton Baratz's seminal 1962 article on the "second face of power," the processes that define and the structures that surround institutions determine, in no small part, both what those institutions will look like and what they will do. This insight is already central to existing developmental accounts of Congress, the presidency, and the federal bureaucracy. For each of these institutions we know how and why it acquired the role, structure, and powers it did. We know why certain actors delegated specific powers to particular institutions at precise times and how those actors overcame constraints and seized upon opportunities for transformative action. The result is more than isolated conceptions of why the House of Representatives reformed itself, when presidential power is at its greatest, and how the Post Office became autonomous; rather, it is a more holistic and macrolevel understanding of how the growth and evolution of governmental power—how the expansion and refinement of "the state"—shaped and was shaped by politics and policy making at various points in American history. Given the role of the American judiciary in, among other things, spurring the growth of an industrial economy,23 constituting national citizenship, and advancing certain forms of individual rights and liberties at the expense of others, understanding the historical development of the institution—understanding the process by which its power was constructed—has obvious substantive import. Yet when scholars of American political development speak of the judiciary at all, rarely do they speak of it as an institution that was, in any meaningful sense, a product of architectonic politics.

As this book will demonstrate, however, any view of the judiciary as simply a constitutional abstraction that does not itself develop over time is misguided. As an institution, the federal judiciary is composed of far more varied and complicated components than simply the written opinions of judges; its structural architecture is at least as complex—and its historical development at least as dynamic—as that of Congress, the presidency, or the federal bureaucracy. Indeed, looking back at the indeterminacy of Article III, which declares that a judicial power exists but offers scant guidance about the precise nature, contour, or extent of that power, we see that the development of an active and interventionist third branch of government was far from a foregone conclusion. The American judiciary, that is to say, was not born independent, autonomous, and powerful; rather, it had to become so, largely through a continuous process that was both politically determined and politically consequential. The story of the judiciary's transformation, in other words, is not a single moment of revelation but a series of battles over law, courts, and the politics of institutional development. It is the story of how the judiciary, long outlined in pencil rather than pen, was built—piece by piece, from the ground up, as part and parcel of American political development.

The Puzzle of Judicial Institution Building

At the heart of this book is the puzzle of "judicial institution building"—the puzzle of understanding how the process of "building" the judiciary unfolded over the course of American political development. By "judicial institution building," I mean the creation, consolidation, expansion, or reduction of the structural and institutional capacities needed to respond to and intervene in the political environment. In particular, I focus on the construction, destruction, and renovation of three building blocks that are both common and essential to all political institutions: a set of discrete and specific functions, which are performed by a group (or variety of groups) of individuals, who are themselves aided by a collection of concrete operating resources. This tripartite foundation encompasses several features of the institutional judiciary, including—but not limited to—jurisdiction, procedural rules, and judicial discretion (functions); expansion or contraction of courts, organizational structure, and formal institutional entities such as the Judicial Conference or the Administrative Office of the Courts (individuals); and budgets, buildings, and legal reports or books (resources). Together these features allow courts to hear cases, craft and modify legal rules, and render authoritative judgments; in turn, they make it possible for judges to settle political, legal, constitutional, and policy disputes that have concrete effects on citizens, corporations, government, and the nation as a whole.

My goal is to uncover both the causes and consequences of institutional innovation and modification—of changes in functions, individuals, and resources—within the judiciary. As such, I ask three broad questions about judicial reform from the commencement of the new government in 1789 through the close of the twentieth century. First, why was judicial institution building pursued? Who were the important actors, and what goals were they seeking to attain? Second, how was judicial institution building accomplished? What challenges presented themselves, and what events or actions were needed to surmount them? Third, what did judicial institution building achieve? What were the concrete and enduring changes in the exercise of judicial power? My focus here is less on what the judiciary does vis-à-vis other political institutions than on what is done to the judiciary both by external actors and by its own members; my interest is less in how the judiciary wields power and authority in any particular jurisprudential or policy area than in the analytically antecedent matter of how it gradually became structurally and institutionally equipped to exert power and authority across a range of areas.

If that process was not overseen by judges, then by whom? If it was not executed through constitutional interpretation and judicial review, then through what? Because of the manner in which Article III effectively delegates judicial institution building to Congress, the chief actors are representatives and senators, the critical actions congressional statutes that are often called (either at the time or in retrospect) "Judiciary Acts." Yet even as the ultimate form of judicial institution building is predominantly legislative, the character of the process leading up to and politics surrounding it is relatively diverse, with presidents, judges, attorneys general, legal academics, bar association leaders, and other notable political actors all playing substantial roles in generating ideas, drafting proposals, and actively working either for or against reform even if, at the conclusion of the process, their actions are validated by and formalized through congressional action. For their part, constitutional interpretation and judicial review are no doubt important, but they are not only less important than action taken by the policy branches but also important less as avenues of institution building than as either context for it, with judicial decisions influencing the strategic environment within which institution building takes place, or extensions of it, with judges frequently acting in the existing stream of politically determined institution building (even if adding their own power-consolidating flourishes to it) and very rarely venturing outside it.

At base, the puzzle of judicial institution building is fundamentally about a series of contested questions of institutional design and delegation. In making choices about whether, when, and in what way to build the judiciary, political actors are driven by one or more of three goals: satisfying substantive regime commitments (policy), consolidating partisan strength and preserving electoral support (politics), and maintaining a functionally efficient judicial branch (performance). While housekeeping measures are largely uncontroversial, occurring often and easily, more significant policy, political, and performance institution-building efforts face constraints—both practical obstacles and political contestation—that inhibit reform of the institutional judiciary. These constraints are overcome and reform made possible through two catalysts for change: significant political events and strategic political action. While events resulting in increases in judicial workload or a large- scale crisis in American society may help to prompt widely supported change, only pivotal elections that reorder political settings or reorient political incentives are capable of breaking down the constraints that inhibit transformative action. In the absence of such an election, entrepreneurs can overcome the constraints upon reform provided their identity, ideas, and tactics are each carefully tailored to the task at hand.

(Continues...)

Excerpted from Building the Judiciaryby Justin Crowe Copyright © 2012 by Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.