New Deal policy aims and the Court's post-1937 interpretive emphasis on living constitutionalism promoted specification of un-enumerated rights. Foremost among these contentious judicially constructed rights was a right to privacy, detailed in Griswold v. Connecticut. To avoid criticism plaguing the Lochner Court's discovery of un-enumerated rights within the Fourteenth Amendment's due process clause, such as liberty of contract, the majority in Griswold grounded its holding in constitutional text. Justice Douglas's ruling specified “penumbras” and “emanations” of the Bill of Rights suggesting a right to privacy. Justice Goldberg's concurrence, true to the precepts of living constitutionalism, anchored the right outside the text and in “‘the traditions and [collective] conscience of our people to determine whether a principle is ‘so rooted [there] … as to be ranked fundamental.’” Yet, to avoid falling prey to the claim that he was entrenching his own values, Goldberg argued that the right to privacy drew on the original meaning of the Ninth Amendment, which held that the rights enumerated in the first eight amendments did not constitute an exhaustive list, but that “others” are “retained by the people.” Of course, as Justices Black and Stewart's dissents made clear, simply referencing constitutional text in and of itself did not constitute valid interpretation. The living constitutionalist approaches of the majority “turn[ed] somersaults with history.”

For many legal scholars and judges, privacy doctrine represented the same challenges posed by unrestrained judicial power that liberals charged had been evident in Lochner-era rulings.

Many accounts of federal judicial politics during the Progressive era – the 1890s through 1930s – note how Republican hold on the Senate and presidency allowed near total control over judicial appointments. Candidates were vetted for “their devotion to party principles and ‘soundness’ on major economic questions of the day.” Judges protected corporate interests against state and federal regulation of workplace conditions, wages, and hours. Judges gave constitutional interpretation a Republican cast, shorthanded by the economic doctrine of laissez-faire and its legal counterpart, liberty of contract.

Federal courts are thereby depicted as countermajoritarian. By resisting popular support for workplace and wage regulation, rulings fomented anti-judge hostility that culminated in Franklin Roosevelt's seemingly Jeffersonian attack in 1937, that is, his proposal to stack the Supreme Court and enlarge the lower federal judiciary to prevent judicial nullification of New Deal policy. The failure to pass various Progressive measures, including FDR's Court-packing proposal, are understood to be evidence of popular and elite acceptance of judicial independence if not outright supremacy.

This chapter challenges this account by focusing attention on assessments of whether, how, and why Progressive proposals failed. Progressives took an inconsistent stance toward federal judicial authority. While some offered the most virulent anti-Court rhetoric since the Jeffersonian years, Progressives proved unable to construct a single solution to the problem of legitimate judicial authority. This failure stemmed from a muddled tradition drawing on incongruent Jeffersonian and Lincolnian strands of Republicanism.

Politicians have challenged the judiciary's legitimate independent authority throughout American history. Yet scholars contend that the judiciary, and particularly the Supreme Court, has become more powerful and secure over time. Nothing in twentieth-century American politics matches how Jeffersonians reined in the judiciary in the early 1800s or what congressional Republicans achieved in the 1860s. Franklin Delano Roosevelt's (FDR's) court-packing plan collapsed and the impeachment and jurisdiction-curbing threats lobbed against the Warren Court went nowhere. Recent attacks notwithstanding, the Court is unfazed; it and has “intensified its political activity” since the mid-twentieth century, and it shows “few signs of reversing course.” Some scholars assert not only that the judiciary reigns supreme in matters of constitutional interpretation but that such supremacy has been deliberately sought and constructed by elected politicians.

It appears that attacks focused on the Court's democratic deficit have become less potent over time even as the polity as a whole has become more democratic. One way to reconcile this paradox is to suggest that judicial aggrandizement has not come at the expense of the elected branches. Political attacks on the federal courts that do not result in undermining judicial power could be a win-win for all sides. Or, a strong judiciary might serve some advantage despite its countermajoritarian potential, and thus that potential needs to be grudgingly accommodated.

The Chase impeachment set an ideal of judicial independence as political neutrality, but it hardly resolved the underlying antagonism with the judiciary. By showing that the federal judiciary could not easily be brought into alignment with the other branches, the impeachment began to unravel the idea of regime unity among political leaders; however, it did not diminish their hope that it could be achieved. As this chapter details, the Framers' presumptions of such unity and corresponding fears about federal consolidation against states' rights continued to color politicians' actions well into the next generation. But ideas about opposition also continued to evolve, and with them came a new attitude toward the judiciary. This chapter examines that evolution during the Jacksonian era (1828–60), which witnessed changes in how politicians viewed parties, the opposition's right to rule, and the advantages and threats posed by judicial power. More specifically, it draws out connections among these dynamics.

The Jacksonian era lacked the explosive anti-judicial hostilities of the early Jeffersonian years. This was a relative calm, at best, but the contrast with what came before is indicative of a newly emergent state of affairs. These years mark an intermediate stage between Jeffersonian attempts to undermine judicial authority when it could not be brought to heel and later Lincolnian attempts to manipulate judicial power to implement a particular political party's constitutional vision.

This chapter lays out a theory of elected branch-judiciary relations, which anchors individual interests and strategies in perceptions, ideas, and norms. It offers an explanation of the observed shift, detailed in Chapter 1, in emphasis of attacks on judicial authority, that is, a move from undermining judicial legitimacy to harnessing judicial power, which, in its general outlines, pivots the years of Civil War and Reconstruction.

Strategic-interest models offer one possible explanation for the harnessing strategy: deference to judicial authority may serve political purposes. Yet, many of these theories tend to take preferences as given – even if they are institutionally constrained – and hold the underlying parameters of rationality constant; the ideas and norms constituting the boundaries of rationality and structuring the range of legitimate political choices are not themselves closely scrutinized. In short, they “relegate ideas, however they are conceived, to the sidelines in explanatory accounts of political processes.” As such, ideas are often viewed as derivative of or epiphenomenal to interests rather than constituting them.

However, entrenched ideas, like norms and institutions, limit and motivate political action. Entrenched ideas constrain how challenges to a political regime can take shape: “challengers to a dominant regime do not operate in an empty playing field, but are forced to challenge inherited norms and institutions, or to adapt their insurgency to the regime they seek to dislodge.” Political agents are situated in an inherited regime of ideas and institutions that set the boundaries and delimit the range of legitimate preferences.

This book has traced the changing politics of hostilities toward the federal judiciary. Episodic conflicts between courts and the elected branches have been with us from the beginning of our constitutional history. They suggest a persistent and still unresolved problem over the place of an independent judiciary in a democracy. But these attacks have not been all of a piece, suggesting that this phenomenon is not merely the result of a constitutional design flaw of an unelected judiciary in an otherwise democratic republic. Their variation reflects systemic changes ongoing within the polity at large, changes that mark the development of American democracy and reveal processes of ideational and institutional change that structure the assumptions underlying rationally strategic political behavior. In particular, shifts in how elected actors understood the legitimacy and loyalty of opposition – evident in changing positions they took on threats posed by and purposes of political parties – have had a pronounced effect on politicians' solutions to the challenge of independent judicial authority. New responses to judicial power emerged in each period as politicians eyed different possibilities for democratic politics and reconsidered the utility of courts accordingly.

This account stands in stark contrast to received understandings of anti-court sentiment, hostility toward judges, and the tactics used to manipulate judicial power. Scholars have long been aware of the episodic manifestations of the problem of judicial authority in American politics.

In contrast to Martin Van Buren's ideas about a disloyal aristocratic minority opposition and single-party constitutionalism, Abraham Lincoln, as the first Republican president and a consummate party politician, conceded the political opposition's right to rule and endorsed the idea that constitutional interpretations could legitimately vary. Lincoln's ideational innovation was compelled by the secession crisis, and it carried vast consequences for how future politicians would manipulate judicial power. Just as the Framers relocated the source of sovereignty from the legislature to the people in order to stem the crisis of governance created by the Articles of Confederation, and just as Van Buren altered the meaning of party from an institution inimical to civic health to one that promoted civil stability in an effort to end the “corruption” against which the Madisonian design proved ineffectual, Lincoln, seeking to prevent the complete breakup of the republic, would re-define the status of opposition and, with it, the notion of what counted as legitimate constitutional interpretation.

This chapter begins by detailing politicians' ideas about opposition and party during the 1850s and 1860s. The first section examines how early Republican leaders, especially William Seward, characterized Democrats in civic republican terms, that is, as an anti-constitutional conspiracy, and cast Republicans not just as competitors but also in the Van Burenite framework of a singular constitutional party replacement.