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Building the JudiciaryLaw, Courts, and the Politics of Institutional Development$

Justin Crowe

Print publication date: 2012

Print ISBN-13: 9780691152936

Published to Princeton Scholarship Online: October 2017

DOI: 10.23943/princeton/9780691152936.001.0001

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Judicial Power in a Political World

Judicial Power in a Political World

(p.270) Chapter Eight Judicial Power in a Political World
Building the Judiciary

Justin Crowe

Princeton University Press

Abstract and Keywords

This concluding chapter synthesizes the book's main findings about the architectonic politics of judicial institution building and contextualizes them within contemporary debates. It also reflects upon the lessons of the more than 200-year historical lineage of the institutional judiciary for our understanding of judicial power in America. More specifically, it considers the place of the federal judiciary in America's past and future in empirical and normative terms, respectively. It argues that both political rhetoric and academic exegesis about the Supreme Court embody a fundamentally incorrect presumption about the judiciary being external to politics, and that such presumption leads to a series of misconceptions about the relationship between judicial power and democratic politics. The chapter offers a conception that not only locates the judicial branch squarely within the political arena but also places substantially greater emphasis on its cooperation rather than conflict with other actors and institutions in that arena.

Keywords:   architectonic politics, judicial institution building, judicial power, federal judiciary, Supreme Court, democratic politics

“With all due deference to separation of powers,” Barack Obama said in his second State of the Union Address in January 2010, “last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.”1 A response to the Court’s controversial decision in Citizens United v. Federal Election Commission,2 Obama’s remarks—including his subsequent plea to Congress to “pass a bill that helps correct some of these problems”3—were met with cheers by much of the audience, though not, of course, by the justices of the Court, six of whom were in attendance that evening. Five of the six—John Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor—remained, as is customary for the members of the Court, still and silent, but, in a much-debated moment that would be replayed repeatedly on television and the Internet, Samuel Alito shook his head in disapproval and appeared to mouth the words “not true, not true.” Within minutes of Obama concluding his speech that night, the controversy had erupted, and the questions came fast and furious. Had Obama’s aggressive “attack” on a decision of the Court crossed the line? Had Alito’s defiant reaction constituted an improper breach of judicial impartiality? Shouldn’t the president, as his own reference to the separation of powers suggests, respect the judgments of the Court as authoritative expositions of constitutional principles rather than merely alternative political views? Shouldn’t the members of the Court preserve their separation from the ruthlessness of politics through nonpartisan stoicism and disinterest? Wasn’t the whole event simply a stain on contemporary American politics, one we would all like to leave in the past and one we would all prefer to avoid in the future?

The intense reactions from both left and right, from supporters of both the president and the Court, implied that something remarkable had occurred. And, indeed, on a superficial level, something remarkable—something between gripping political theater and salacious political melodrama—had occurred: the president had chastised the Court with the entirety of Washington society in the room (p.271) and the entirety of the nation’s citizenry able to watch on television, and a justice had reacted with disagreement to a statement in what Chief Justice Roberts would later call a “political pep rally.”4 But, on a deeper level, the State of the Union incident revealed more about our conceptions of the Court than it did about the Court itself—more about our unstated assumptions regarding the place of judiciary in American politics than about its actual place. One set of reactions, largely expressed by those in the media and by elected officeholders, focused on blaming either or both Obama and Alito for their roles in needlessly, inappropriately, and harmfully “politicizing” the judiciary. The Court, we were reminded, was removed from the political sphere, so Obama, a partisan politician, was wrong to draw it into political debate, and Alito, an objective judge, was wrong to take the bait. Another, somewhat smaller, set of reactions, particularly from scholars of the Court and its history, took the incident as simply another instance in a long line of collisions between politicians and the Court. The Court, we were taught, had been targeted by, among other presidents, Thomas Jefferson, Andrew Jackson, Abraham Lincoln, and Franklin Roosevelt; its default position in the political system was one of a foil, a lightning rod, and an oft-criticized “outsider” that could be cowed by harsh words and forced to adapt by intimidating threats. According to one camp, the dispute deviated from a norm of insulation; according to the other, it proved a pattern of discord.5

I want to suggest, somewhat counterintuitively, that these two seemingly divergent reactions to the Obama-Alito kerfuffle actually reflect a similar presumption, one shared by both current political rhetoric surrounding the Supreme Court and contemporary academic exegesis about the Supreme Court—namely, that judicial power is separate from and outside the realm of democratic politics. In political rhetoric, this presumption paradoxically gives rise either to an unrepentant defense of the Court’s position as above the fray and its integrity as beyond reproach (from “judiciaphiles”) or a paranoid skepticism that judicial power was “stolen” from the people and their representatives, that the Court somehow rose to prominence through manipulative action taken when citizens and politicians were not looking or carried out in ways they could not prevent (from “judiciaphobes”). In academic exegesis, it serves as the basis for the conclusion that the relationship between courts and other political institutions (or between judges and other political actors) is characterized by hostility and friction, is defined by antagonism and opposition. Based on the story I have told about judicial institution building from (p.272) the time of the nation’s founding to the present, I want to suggest that these various propositions—and, consequently, their shared presumption about judicial power being, in some sense, beyond the sphere of politics—are fundamentally incorrect. In their place, I want to offer a different conception of the relationship between judicial power and democratic politics, one that not only locates the judicial branch squarely within the political arena but also places substantially greater emphasis on its cooperation rather than conflict with those in that arena, most notably federal elected officials. As I attempt to demonstrate in this concluding chapter, such a conception is, on an empirical level, vastly more faithful to the judiciary’s place in America’s past and, on a normative one, considerably less fatalistic about its place in America’s future.

Judicial Institution Building as a Political Project

As this book has made clear, the institutional development of the federal judiciary—including, but not limited to, the Supreme Court—has been an undeniably political project. It has, that is to say, been simultaneously guided by political incentives and subject to political constraints. Far from occurring in a world apart from politics, far from happening in courthouses and judges’ chambers, the construction and reconstruction—the making, remaking, and modification—of the institutional judiciary that has unfolded over the course of American political development has been the work of elected politicians acting in political forums and upon political interests. The process of judicial institution building, in other words, has not been removed from or contrary to politics but deeply embedded within it. Indeed, as I describe in chapter 1, to the extent that courts and judges have become central to American politics, it is because elected politicians have actively, repeatedly, and strategically assisted them in becoming so. In this section, I want to debunk the assumption of judicial separation from politics that structures much contemporary thinking about judicial power by unpacking each of these three claims before suggesting how the idea that judicial power at large—rather than merely judicial review6is politically constructed should prompt us to reevaluate our conceptions of the relationship between the Court and the political branches.

First, judicial power has not been stolen from political society but affirmatively granted by it. Rather than depicting a story of law trumping politics, of institutional development occurring in peculiarly apolitical legal venues, the history of judicial institution building I have sketched in this book illustrates how courts have emerged as powerful less because of judicial decisions than because of political ones. Indeed, despite our reverence for the Court’s decisions in Marbury v. (p.273) Madison and McCulloch v. Maryland,7 it is simply not the case that the judiciary became powerful on the basis of John Marshall’s pronouncements about judicial review or federal supremacy over the states. While those pronouncements were by no means unimportant, they did little to provide the judiciary with any concrete tools of judicial power. They did not, that is to say, bestow upon the judiciary more functions, new individuals, or increased resources; they did not create, consolidate, or expand the structural and institutional capacities needed to respond to and intervene in the political environment. Instead of arriving concomitant with landmark judicial decisions, nearly all significant steps in the accretion of judicial capacity were effected by acts of Congress. The Judiciary Act of 1789 (see chapter 2), which (among a great many other things) created a tier of lower courts and filled the constitutional gaps in the Court’s jurisdiction, did not flow from pen of Chief Justice John Jay; rather, it emerged from the mind and through the efforts of Senator Oliver Ellsworth. The Local Prejudice Act of 1867 (see chapter 4), which empowered federal courts to take control of state court cases where a litigant believed the judge was biased against him, was the product of a Republican legislature rather than a Republican judiciary. The Judiciary Act of 1925, which granted the Court near-complete control over its docket (see chapter 6), was, it is true, the legacy of Chief Justice William Howard Taft, but it was brought to fruition by Taft’s proposing, drafting, and lobbying for passage of a legislative bill rather than his marshaling of Court brethren behind a judicial opinion. In each of these instances, judicial power expanded because of, rather than in spite of, political action; in each of these instances, judicial power expanded through, rather than over, political will.

Second, judicial power has not emerged suddenly and spontaneously so much as it has developed consistently and continuously. Indeed, the growth of judicial power was made possible not by a singular event but through a collection of occurrences, the timeline for which has stretched over two hundred years and has encompassed a multitude of different actors and parties. The individual reforms may not have arrived at a regular pace or followed predictable patterns, but neither were they limited to one era, one administration, or one episode; instead, they were multiple, manifold, and recurring, often building upon and modifying one another so as to refine judicial capacity or improve judicial efficiency. The geographic organization initially designed for thirteen states along the Eastern seaboard was the subject of steady attention and the cause of two pivotal reforms, the Judiciary Act of 1807 and the Judiciary Act of 1837 (see chapter 3), in the early to mid-nineteenth century. The early institutional architecture of three tiers of courts but only two sets of judges was made less burdensome on Supreme Court justices through repeated structural innovation, including the appointment of circuit (p.274) judges in 1869 (see chapter 4) and the creation of circuit courts of appeals in 1891 (see chapter 5), in the mid-to late nineteenth century. The original problems of a decentralized and administratively dependent branch were virtually eradicated by a series of reforms, including the authorization of the Judicial Conference in 1922 and the establishment of the Administrative Office of the Courts in 1939 (see chapter 6) in the early to mid-twentieth century. The steadily mounting caseloads of federal district court judges were alleviated by frequent modifications to the set of tasks that might be delegated to judicial adjuncts like magistrates and bankruptcy judges (see chapter 7) in the mid-to late twentieth century. With these changes part of a gradual process ongoing over the course of two centuries, it is clear that the character of judicial institution building was far more evolutionary than revolutionary.

Third, judicial power has not increased because of clueless or feckless behavior but because of strategic and deliberate action. In other words, politicians have engaged in institution building consciously and tactically, empowering the judiciary because they saw it in their—and often their constituents’—interests to do so. The particular interests being served have varied from the promotion of a specific economic agenda (policy) to the creation of new Supreme Court seats for partisan allies (politics) to the unburdening of a rapidly increasing judicial docket (performance). Regardless of the specific interest at hand, it is clear that politicians have traditionally viewed the judiciary as a potential partner in, rather than an obstacle to, their governing coalitions. In the early republic (see chapter 2), Federalists proposed a strong judiciary under the assumption that such an institution would simultaneously promote the national unity they believed necessary and further the commercial growth they believed desirable. In the late Jeffersonian period (see chapter 3), National Republicans attempted to update the circuit system in order to appease Westerners, whose political support they sought in their partisan fight with Old Republicans. In the Gilded Age (see chapter 5), Republicans substantially expanded the jurisdiction of federal courts in the hope that a strong federal judiciary would help facilitate the triumph of industrial capitalism over the forces of local agrarian opposition. In the modern era (see chapter 7), Democrats and Republicans alike supported specialized courts for matters as disparate as patents and foreign intelligence surveillance in the expectation that the establishment of such courts would lead to greater consistency and enhanced coherence in either technically complicated or politically sensitive legal domains. Across the span of American political development, then, the growth of judicial capacity has furthered rather than impeded the disparate goals politicians sought to achieve.

To the extent that our presumption about the judiciary operating outside the normal scope of political action leads us to ignore these three findings, and, by extension, the centrality of democratic politics to the construction of judicial power more generally, it also casts doubt on the simplistic and essentially conflictual models of interbranch relations proffered in much extant scholarly literature about judicial politics. Indeed, the idea that judicial power has been politically rather than legally constructed, an idea drawn from the history of judicial institution (p.275) building that I have sketched in this book, suggests that the common conceptions of legislative-judicial dynamics in particular—politicians threatening and punishing judges for wayward decisions, on the one hand, and courts brazenly subverting the democratic will through judicial review of representative lawmaking, on the other—are profoundly misguided. As we have seen, the relationship between Congress and the courts is, on the whole, characterized by a continual give-and-take that reflects neither strict judicial dependence upon nor inevitable judicial intransigence toward the legislature. In other words, legislative-judicial interactions around institution building do not conform to frameworks that envision the Court begging Congress for power or Congress punishing the Court for its indiscretions. Instead of Congress manipulating the Court to its advantage and the Court’s detriment or the Court unilaterally thrusting itself into the political arena without invitation or acceptance, the two institutions interact in a more dynamic and complicated fashion. Often those interactions are friendly, occasionally they are neutral, and even less occasionally they are antagonistic, but they are rarely restricted to either a congressional response to a judicial decision or a judicial decision in response to congressional signals.

By emphasizing concepts such as Court-curbing and strategic retreats, then, scholars of judicial politics (and related fields) have perpetuated a fundamental misconception about the nature of the relationship between Congress and the Court. That relationship, as the history of judicial institution building demonstrates, is markedly more supportive than combative. Courts have undoubtedly provoked popular and political dissatisfaction and sparked politicians to try to curb the exercise of judicial power on numerous occasions, but the most common congressional posture toward the federal judiciary has long been—and remains to this day—cooperation rather than conflict. In the more than two hundred years between the start of George Washington’s presidency in 1789 and the election of George W. Bush in 2000, Congress, through the variety of enactments already mentioned as well as several others, established (chapter 2), reorganized (chapter 3), empowered (chapter 4), restructured (chapter 5), bureaucratized (chapter 6), and specialized (chapter 7) the federal judiciary. Hardly any of the episodes constituting these dominant modes of institution building represented congressional enmity toward the judiciary; in fact, nearly all of them reflected support of it and, in turn, yielded a meaningful enhancement of either judicial independence, autonomy, or power.

Although most (if not all) of the reforms I have mentioned in this chapter and described elsewhere in this book offered politicians something they wanted, the fact that episodes of judicial institution building have served the policy, political, or performance goals of elite actors makes them neither less important to the growth of judicial capacity nor more hostile to it. After all, if judicial power has been increasing or expanding, if the judiciary has been given more work to do or more tools to use in doing that work (as has been true in almost all instances through American history), then judicial institution building, regardless of what motivated politicians to pursue it, has been cooperative, helping all branches in their struggle for governmental power. Even in those instances where judicial institution building reorganized or (p.276) restructured rather than measurably expanded judicial power, it did so in ways that were at best mildly mutualistic, at worst plainly commensalistic, and—above all—not even remotely parasitic. That is to say, even when institution building did not explicitly trigger judicial empowerment—as in the case of the geographic expansion and reorganization of the federal circuit system in Judiciary Act of 1837 (chapter 3), the compilation of all judiciary-related laws into one statute in the Judicial Code of 1911 (chapter 5), or the establishment of the Court of Appeals for the Federal Circuit in 1982 (chapter 7), for example—it hardly signaled judicial endangerment. Throughout American history, elected officials may have pursued institution building because they believed it in their interest to do so, but judges—far from being harmed or limited—have been the actors who benefited most.

Why, then, have scholars of judicial politics continued to view the history of legislative-judicial relations through a primarily conflictual lens, emphasizing political tension and hostility where it simply did and does not exist? Because they have—somewhat peculiarly, given their broader interests in the separation of powers—adopted a view of the judiciary as not simply functionally independent but intrinsically extrapolitical. Because they have assumed, in other words, the same perspective that runs through so much partisan rhetoric about the Supreme Court in American politics. As a result, when scholars of judicial politics see political forces acting on the judiciary, they view the occurrence as an anomaly to be studied. But once we discard the idea that courts are in any way isolated from politics and (more accurately and reasonably) treat the judiciary as behaving like one of American government’s “separated institutions sharing powers,”8 then we see that political forces shaping the nature, contour, and extent of judicial power is not the exception but the unequivocal historical rule. And once we recognize this reality, it is not clear why legislators or executives trying to shape the judiciary to serve their interests should be considered hostile court curbers in the least. Especially if we shift our focus from what politicians say about the judiciary to what they do (or do not do) for or to it, then most evidence of an oppositional relationship virtually disappears; especially if we shift our concern from demagoguery surrounding judicial power to the policy making that enables or encumbers the exercise of it, competition reveals itself to be far more isolated and far less central than collaboration.

Judicial Power and Democratic Politics

By moving us away (contra political rhetoric) from the idea of a hermetic separation between judicial power and democratic politics, and by recasting (contra academic exegesis) the historical relationship between politicians and the Court as one of cooperation rather than conflict, the case I have outlined in this book and highlighted (p.277) in this chapter suggests that the empirical foundations upon which much normative theorizing—both scholarly and popular—about judicial power is based are at best incomplete and at worst outright incorrect. Indeed, the fact that the dramatic expansion of the institutional judiciary has resulted less from countermajoritarian judicial decisions than majoritarian political ones should force us to consider whether the substantial hand-wringing about the supposed democratic deviance of judicial power is truly warranted or whether a model that points toward some degree of democratic pedigree for judicial power might justify somewhat different normative conclusions.

The fact that there is little sense in talking about the institutional development of the judiciary as being either meaningfully estranged from or meaningfully in tension with politics should, as a starting point, be of great comfort to all constituencies, save perhaps those partisan operatives and interest groups on both sides of the aisle who seem to thrive on the escalation of conflicts surrounding the culture war and the Supreme Court’s place within it. In concluding this book, I want to outline why this finding—the fact that judicial power is not currently and has not historically been devoid of politics—should be seen as normatively desirable by anyone with one or more of three political commitments: first, protecting judicial independence from democratic politics; second, promoting judicial accountability to democratic politics; and, third, solidifying and revitalizing the participation of “the people” in democratic politics.

First, for those who desire robust independence and limited accountability, the centering of judicial power in a political world should serve to counter overheated discourse about courts and judges and provide a powerfully weighty counterpoint to the arguments of those seeking to curb them. After all, to the extent that antijudicial hostility is often expressed in terms of courts acting in an extrapolitical manner—judges are unelected, their power is constitutionally unspecified, their behavior virtually unchecked by and unaccountable to political branches9—the dismantling of that paradigm could serve to deny the critics of judicial power a meaningful rhetorical frame. In a more affirmative fashion, demonstrating the extent to which judicial institution building has been a political project and the extent to which the current shape of the federal judiciary is a political product should indicate that judicial power has a firmer base in the political system than previously thought. In fact, given that such power has been actively, repeatedly, and strategically granted by democratically elected—and, thus, democratically accountable—legislators, one might even suggest that it is cloaked in something of a democratic pedigree.10 If so, then even though judicial power—as all governmental power—should still be wielded cautiously and (p.278) carefully,11 it can also be wielded without guilt about its origins because those origins lie in the votes and actions of democratic politicians.

Second, for those who desire robust accountability and limited independence, the centering of judicial power in a political world should be comforting because it means that, far from a perversion of American democracy, judicial power was actually constructed by elected actors. In other words, the fact that judicial institution building is suffused with democratic politics—that it is democratic politics that serves as the engine for the acceleration of judicial capacity—should serve to assuage fears about self-aggrandizing and so-called activist judges run amok in the constitutional temple. Having neutralized the rhetoric of accountability by softening some of the bite of the countermajoritarian difficulty, the idea of political construction also aids the reality of accountability by providing evidence that political actors have bestowed judicial power and, thus, can take it away if they desired to do so.12 With life-tenured judges anything but insulated from political controversy and contestation, attempts by political actors to rein them in seem far less unprecedented and inappropriate than we might previously have thought.

Third, and finally, for those who might desire to triangulate between independence and accountability in any number of ways, the centering of judicial power in a political world should be seen as normatively balanced in a manner that is democratically empowering. Crucially, it offers some—but not too much—of both independence and accountability. In the fusion between decisional sovereignty and institutional responsibility, power is wielded outside the political world but constructed inside it. Striking a particularly delicate equilibrium between two rival aims, this dynamic allows for the formation of moderate virtues and the avoidance of excessive vices. Perhaps even more important, should we collectively decide that we desire more independence and less accountability (or vice versa), the idea of a politically constructed judiciary leaves the political space (and the possibility for democratic agency) needed to make such changes happen.13 In that way, emphasizing the ways in which courts and judges have historically grown more powerful shifts onto us the responsibility to hold our elected officials—and, by extension, the judges they empower—answerable for the size, scope, and character of judicial power.

(p.279) Let me be clear: my argument is not that judicial power is unproblematic because judges are accountable to citizen preferences or responsive to changes in the political climate in any meaningful sense. (That argument may or may not be true; regardless, I leave it for others to make or dispute.14) Nor do I wish to portray the decisions of courts and judges as beyond reproach. We may legitimately and appropriately disagree with the holding or rationale of a particular case—we may think decisions permitting late-term abortion or unlimited corporate campaign contributions wrong on any number of moral, political, legal, or policy dimensions—but when the power to decide those cases is a function of the political process, we lose some of our ability to attack it. Under this view, the accusation that the judiciary is at fault for any number of national problems holds little water. We may question the decisions the judiciary makes, but we—through our elected officials—have conferred upon it the power to make them. Once again, the implication here is not that we, as citizens, cannot or should not critique courts and judges for making decisions we do not like or do not think the Constitution supports. Rather, it is that if Americans—on the left, on the right, in the center—do view increased judicial power as problematic (and I am not saying they should), then we have no one to blame but our elected officials. And, if we consider those officials in some sense accountable through linkage mechanisms such as elections or the mass media, then—unless we (seek to) use our democratic power to encourage those officials to strip or limit judicial power according to our interests—we have nobody to blame but ourselves. (p.280)


(1) Barack Obama, Second State of the Union Address, January 27, 2010.

(2) 558 U.S. ___ (2010) (striking down a federal regulation of corporate campaign speech as a violation of the First Amendment).

(4) Associated Press, “Chief Justice John Roberts Found State of the Union Scene ‘Troubling,’ ” Washington Post, March 10, 2010.

(5) For early scholarly reactions that express, in various forms, both of these reactions, see Douglas E. Edlin, “ ‘It’s Not What You Said, It’s How You Said It’: Criticizing the Supreme Court in the State of the Union,” Yale Law and Policy Review Inter Alia 28 (2010): 27–36; Mark A. Graber, “A Tale Told by a President,” Yale Law and Policy Review Inter Alia 28 (2010): 13–25; Bruce Peabody, “What Deference is Due? Constitutional Chiding and the State of the Union,” Yale Law and Policy Review Inter Alia 28 (2010): 1–11; and Keith E. Whittington, “The State of the Union Is a Presidential Pep Rally,” Yale Law and Policy Review Inter Alia 28 (2010): 37–50.

(6) As noted previously, existing work on the “political construction” of judicial power tends to focus on how the practice of judicial review is maintained and supported by political actors—a subject that, while admittedly important, embodies a relatively limited conception of judicial power and captures a relatively small proportion of interactions between the judiciary and the political branches. See chapter 1.

(7) Marbury v. Madison, 5 U.S. 137 (1803) (invalidating Section 13 of the Judiciary Act of 1789 as in conflict with Article III); McCulloch v. Maryland, 17 U.S. 316 (1819) (upholding the creation of the Second Bank of the United States as a constitutional exercise of congressional authority under the Necessary and Proper Clause and rejecting the idea that a state could tax an organ of the federal government).

(8) Richard E. Neustadt, Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan (New York: Free Press, 1991), 29. See also Charles O. Jones, The Presidency in a Separated System (Washington, DC: Brookings Institution Press, 1994).

(9) See, most recently and perhaps most aggressively, James McGregor Burns, Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court (New York: Penguin, 2009). See also Mark Tushnet, Taking the Constitution away from the Courts (Princeton, NJ: Princeton University Press, 2000); and Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 2001).

(10) Christopher L. Eisgruber, Constitutional Self-Government (Cambridge, MA: Harvard University Press, 2001). This is distinct from the idea that the Court has a useful role as a “referee” for the democratic process and a useful function in “reinforcing democracy” even as it technically stands outside it. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980).

(11) Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New Haven, CT: Yale University Press, 1986); Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge, MA: Harvard University Press, 1997).

(12) I acknowledge here that politicians may lack either or both the will and incentive to restrict judicial power, but that reality has little bearing on the fact that they have, should they choose to exercise it, the authority to do so.

(13) While it is undeniably true that the forces of path dependence may make such changes difficult and thereby lessen the ability of the citizenry to control (or, at the very least, influence) the extent of judicial power in any meaningful sense, the existence of obstacles to a particular result does not (as the history of judicial institution building clearly illustrates) make attainment of that result impossible. Neither, I would suggest, does it remove the normative force and justification that even the possibility of democratic agency provides.

(14) The classic account on this point is Robert G. McCloskey, The American Supreme Court, 5th ed., rev. Sanford Levinson (Chicago: University of Chicago Press, 2010). For current variations on the theme, see Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (New York: Farrar, Straus and Giroux, 2009); Lucas A. Powe Jr., The Supreme Court and the American Elite, 1789–2008 (Cambridge, MA: Harvard University Press, 2009); and Jeffrey Rosen, The Most Democratic Branch: How the Courts Serve America (Oxford: Oxford University Press, 2006).