Conversations with RBG confirms that the prime reason for Ginsburg's accolades is her relentless progressivism.
In the first part of this two-part entry, I argued that the original understanding of judicial power—to say what the law is in the context of a dispute between two parties—has been altered in part as a result of legislative changes to the courts’ jurisdiction and their tools to implement their judgments, and that these changes may have induced the courts to view the Constitution and the law in a new way. Naturally the next step of inquiry might seem to be to ask which changes have been improvements and which have proven problematic. But in this entry, I want to address a potential obstacle to that inquiry, or at least to its having any practical meaning: the suggestion that institutional change is irreversible.
Among political scientists, a subfield called American Political Development has recently emerged to consider such concerns. It encompasses two competing paradigms: one looks at the building of the centralized state and emphasizes transformations in the constitutional system since the time of the Founding, the other at the consequences of founding ideas in American political and constitutional life—ideas such as liberty, equality, and democracy, and even ideas about nature, history, and religion that underlie these.
Most scholars working on American political development—for example, Karen Orren of UCLA and Stephen Skowronek of Yale, founding editors of the journal Studies in American Political Development—adopt the first approach just sketched. To them, it is unmistakably the Progressive era that establishes the paradigm that defines their research questions and colors what counts as evidence in response. The Progressives did not feel bound by the principles of the founding, nor were they satisfied with the institutions it established. Instead, they were institution-builders themselves, and they confidently sought to reform American government away from the old model of courts and parties and towards a more unified, rational, central state. Democratic politics and scientific administration were thought compatible, the first to establish the goals to be sought, the second to craft the means to secure them. Progressives saw the formalism and traditionalism of American law and constitutionalism as obstacles to the rational implementation of public policy. Pragmatic analysis was needed to replace outdated common-law categorization, and such old constitutional devices as the separation of powers were evidence at best of eighteenth-century mechanical thinking, now seen at once as inefficiently complex and scientifically simplistic in the context of an evolutionary age.
If these scholars of American political development are informed by the Progressive paradigm, they do not necessarily identify themselves as Progressives in their scholarship. In fact, a central question animating their research is why the United States failed, or only partially succeeded, in building a modern, centralized state with a shared norm of rational policy-making—their answer, quickly, being that in America the state was built after democracy was established, while in Europe the state came first, democracy afterwards. Although on the whole they implicate courts (and political parties) as pre-Progressive instruments of governance, by defining political development in terms of “durable shifts in governing authority”—especially those shifts of perspective accepted on both sides of the political spectrum and no longer even recognized as controversial—they raise the issue of whether change in the character of courts is a durable shift or a temporary, partisan development. In his celebrated recent book, Political Foundations of Judicial Supremacy, Keith Whittington makes the case that judicial supremacy, the idea that the United States Supreme Court has final say over the meaning of the Constitution, while not originally intended, has become a generally accepted characteristic of American politics, an authoritative “constitutional construction” developed over time as a result of real political incentives that cannot be readily overridden nor easily altered.
Do scholars who adopt the alternative approach to American political development—who see political change in terms of founding ideas—offer better resources for addressing what can be done today to re-examine the question of judicial power? One might expect so, if only because they tend to be open to the claims of originalism and to the consequences of ideas for political change. To argue that political ideas drive political development is not to say that revolutions in ideas are easily accomplished, only that institutional development is intelligible even when it changes course. Indeed, the alternation of dominant ideas might have surprising effects: Under Progressive influence, the courts were redesigned to be more policy-oriented in their approach and more administrative in their language, but the traditional American solicitude for individual rights soon thrust courts into contention with the very administrative agencies originally designed by Progressives to replace the courts. Even though ideas have consequences, in other words, it is not always clear in the context of established institutions what those will be.
Whether influenced by sustained efforts at state-building or by underlying political ideas, what have been the major legislative interventions altering the shape of the judicial power since the Constitution was written? Let me list a few and invite comments from readers of other candidates:
- Judiciary Act of 1789—This constitutive act established many of the principles still operative in defining the federal judiciary today, for example extensive concurrent jurisdiction with state courts and federal courts of primary jurisdiction whose districts do not cross state lines, but there is much in it that now seems unfamiliar: for example, comprehensive diversity jurisdiction, but limited federal question jurisdiction, or for another example, Supreme Court justices riding circuit and sitting together with district judges in trying many cases.
- Ku Klux Klan Act of 1871 and Jurisdiction and Removal Act of 1875—This Reconstruction era legislation made the federal courts more widely available to litigants, the first giving the (much-later revived) right to sue state and local officials over the violation of civil rights, the second establishing general federal question jurisdiction.
- Act establishing circuit courts of appeals in 1891—Circuit riding by the Supreme Court justices was finally ended by this act, and a new set of intermediate courts of appeals was established, to ease the complained-of caseload crunch.
- Judges Bill of 1925—This bill, written by Chief Justice Taft and defended as necessary to allow the Supreme Court to manage its caseload, gave the Court discretion in many instances as to whether or not to accept an appellate case. In addition, over the following decade bills were passed that combined process for law and equity; that limited the judges’ ability to use injunctions in labor disputes (Norris-LaGuardia Act of 1932); that allowed federal courts to issue declaratory judgments; and that established new and uniform Federal Rules of Civil Procedure.
- Anti–Terrorism and Effective Death Penalty Act of 1996—This act limited the use of the writ of habeas corpus to allow prisoners to bypass state judicial process and seek federal review of their cases; if not the only, this is the most prominent bill I know to have emerged from Congress since the Warren Court expansion of federal judicial power designed to limit some aspect of that expansion.
Although the development took place step-by-step, the federal courts, designed originally as instruments for the settlement of disputes about the rights of individual parties, especially property rights, have become forums for the decision of constitutional issues, largely at their own discretion. Given this new orientation by the issue rather than the case, it should come as no surprise that federal judges began to see their power of judicial review as central to their constitutional function, not incidental to the decision of a particular case. Given discretion in their choice of the agenda, it should be no surprise that judges begin interpreting the Constitution more liberally. Given these and the basic practice of judicial finality, it should be no surprise if the Court sees itself in any inter-branch conflict as constitutionally supreme. If that supremacy is not inevitable, and in a democratic regime not healthy, what might be within the power of Congress to do to restore to the courts something more like their original role?