Adam White highlights the history of threats to judicial independence in the United States.
In an anti-institutional era, does any institution face more dangerous attacks than our Constitution’s judicial branch? Today, it faces outlandish political attacks from both the right and the left. President Donald Trump and other senior officials launch petulant insults against judges who rule against his administration’s policies. Democratic senators make reckless threats that Supreme Court justices should “pay the price” for their decisions and assert that the court itself should be “restructured,” because its decisions do not please them.
Throughout the Biden presidency, progressives called for the court to be packed or restructured; eventually, even President Joe Biden joined the chorus with a proposal to end judicial life tenure and regulate the justices themselves. Federal judges and justices now face such heated political attacks—even assassination threats—that the federal judiciary is considering creating an entirely new security force to better protect judges against this wave of threats.
It is an unsettling moment—but not an entirely unprecedented one. The judicial branch is supposed to be insulated from political pressure, but our history has witnessed many other moments when judges and courts have faced withering political attacks despite their constitutional protection, or perhaps even because of it. We saw this in FDR’s failed court-packing gambit; and in the Progressive movement’s flurry of proposals to subject the courts to direct democratic vetoes; and, more recently, in various Democratic and Republican proposals to strip the courts’ jurisdiction over cases involving racial segregation, abortion, and other matters.
Indeed, these debates go back to the very start. The first genuine presidential transition from one party to another—from John Adams’ Federalists to Thomas Jefferson’s Republicans—was preceded by a pitched fight over the courts. First, the Adams administration’s effort to restructure the federal courts and fill them with more Federalist judges. Then the Jefferson administration’s efforts to restructure the courts, eliminate the new judges, and even to impeach Federalist justices.
