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Attacking Judges Is as American as Andrew Jackson

Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
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Last month, Kansas legislators began laying the groundwork to impeach state Supreme Court justices whose rulings they don’t like. Conservative activists across the country have been engaging in similar efforts to replace liberal judges -- efforts that the news media are treating as some new and sinister development.  Sinister, maybe -- but certainly not new. Our politics, as commentators have noted, has entered its Jacksonian moment. Small wonder, then, that we are also reenacting the Jacksonian view of the courts.

Andrew Jackson rode to the presidency in the 1828 election on a tide of popular resentment of what was seen as the ruling class -- the rich, the creditor class, and the lawyers and government officials who served the interests of both. Jackson, in the words of biographer Jon Meacham, called for “the triumph of the virtue of the people over the vices of the elite.”

In no arena did Jacksonian democracy have a more lasting impact than the courts. To Jackson and his followers, judges were not independent functionaries but simply another group of elites to be brought to heel. Jacksonians took seriously the notion that anyone who sits in judgment on the work of the people should be willing to face the popular will. And here the movement largely succeeded. When the nation was founded, only Vermont elected its judges; by the end of the 19th century, a majority of the states either elected their judges directly or required them to face retention elections following a limited term of appointment.

Along the way there were any number of memorable confrontations between the courts and the political branches. The most remarkable was in Kentucky, which in the 1820s abolished its own Court of Appeals -- the highest court in the commonwealth.

Although the dispute had been simmering for some while, it came to a head after the U.S. Supreme Court’s 1821 decision in Green v. Biddle, which struck down a Kentucky statute that made it difficult to remove squatters from private land. The commonwealth had declined to appear before the justices in order to defend the statute, adhering to the position of many states at the time that the federal judiciary’s power of constitutional review was limited to statutes of the U.S. Congress. The Supreme Court decided the case anyway.

At that time Richard Mentor Johnson, who would later serve as vice president, represented Kentucky in the Senate. He gave a fiery speech denouncing the court’s decision, along with the presumption that a federal court could interfere with the business of a state. “If the voice of the people is the voice of God,” he demanded, “what must the superior voice of a judge be?” Judicial review, said Johnson, might make sense under a monarchy, where the people needed protection from the king. But not in America: “The government and the people are one; and we ask not the guardian care of our superiors to bind our hands so that we cannot wound ourselves.”

This was hardly radicalism -- except, perhaps, in the eyes of the bar. At a time of rampant anti-elite fervor, such sentiments were as common as cheese. Lawyers, from which judges even then were mostly drawn, were seen as the servants of the creditor class and the enemy of the people. Several states tried to remove judges who held statutes unconstitutional. Others passed laws limiting which authorities judges could cite in their opinions. The Georgia Legislature adopted a resolution ordering its courts not to strike down its statutes.

Kentucky went further. Unable to do anything about the judges far off in Washington, the Legislature turned its fury on its own highest court. The Kentucky Court of Appeals had recently held unconstitutional two legislative enactments aimed at relief for debtors. This was a time of economic crisis, and in the popular mind, the loathsome banks and their wicked familiars were to blame. Spurred by a furious public, the Legislature tried to remove the offending justices, but it could not muster the necessary two-thirds vote. Instead, the pro-relief faction forced the justices to come before the Legislature to be grilled about their decisions. But even that grand political show failed to turn the tide.

Had Kentucky stopped there, the dispute would hardly even have made the history books. But the popular anger at the court didn’t abate. Instead, it exploded into what is known as the Old Court-New Court controversy. The Legislature hit upon a novel solution: It adopted by a simple majority a statute that abolished the existing Court of Appeals and created a new one.

The matter swiftly degenerated into farce. The clerk of the old court refused to turn over its records, so the clerk of the new court organized a break-in to seize them.2 The old court held the statute unconstitutional and refused to stop doing business, but the new court held the statute constitutional and began doing business. Perplexed lawyers whose clients brought appeals had to choose sides. And some lawyers -- driven perhaps by an admixture of prudence and the prospect of double fees -- filed appeals in both courts.

Meanwhile, supporters of the old court rallied to its defense. The old court ordered the new one to return the purloined records; the new court refused. The old court ordered its sergeant to seize them. The governor threatened to use the state militia to keep the new court in business.

Of course the dispute didn’t last. It took two elections and an easing of the economic crisis, but supporters of the old court finally mustered a legislative majority and restored the status quo. The new court was abolished in a statute confrontationally titled “An act to remove the unconstitutional obstructions which have been thrown in the way of the Court of Appeals.” The pro-relief governor vetoed it. His veto was overridden. The new court finally surrendered. There was evidently some logrolling -- a new-court supporter soon became chief justice -- but the point is that the controversy was resolved ultimately by politics rather than fiat.

I recite all of this history for two reasons. First, we should accept that there is nothing new under the sun. When the public is angry, there’s no particular reason that lawyers and courts should be spared from its ire. We’ve been through it before. We’ll go through it again.

This leads to the second reason. When legislators threaten to remove justices who don’t vote their way, we complain that they are playing politics with the courts. But we all play politics with the courts. Every presidential candidate who promises to appoint only justices who will, say, support the right to choose or the right to bear arms is engaging in the same mischief. What’s going on now in Kansas, Oklahoma and other states is simply the extension of the proposition that what makes a judge a good judge is the reaching of results we like.

  1. Yes, the left does it, too. Until his death made the matter moot, MoveOn.org had the same notion about Justice Antonin Scalia.

  2. The clerk was Francis Blair Sr., a close friend and adviser of Jackson and later a friend and adviser to Abraham Lincoln -- the same Francis Blair for whom Blair House, across the street from the White House, is named.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Stephen L Carter at scarter01@bloomberg.net

To contact the editor responsible for this story:
Brooke Sample at bsample1@bloomberg.net