by Justin Crowe. Princeton, NJ: Princeton University Press, 2012. 328 pp. Cloth $80.00. ISBN: 9780691152929. Paper $35.00. ISBN: 9780691152936. eBook $35.00. ISBN: 9781400842575.
Reviewed by Justin Buckley Dyer, Department of Political Science, University of Missouri. Email: dyerjb [at] missouri.edu.
In a memorable moment during his 2010 State of the Union Address, President Obama leveled a pointed critique of the Supreme Court’s then-recent decision in Citizens United v. Federal Election Commission. “With all due deference for the separation of powers,” the president asserted, “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.” Breaking from the customarily stoic posture of Supreme Court justices at such events, Samuel Alito shook his head defiantly and mouthed the words “not true.”
Commentators left and right quickly latched onto the episode, questioning the propriety of the president’s remarks and the justice’s response. Yet according to Justin Crowe the whole affair “revealed more about our conceptions of the Court than it did about the Court itself – more about our unstated assumptions regarding the place of the judiciary in American politics than about its actual place” (p.271). The initial reaction – by scholars and pundits alike – was to suggest either that someone (Obama or Alito or both) needlessly “politicized” the judiciary or that this was just one more example of an ambitious president (in the mold of Jefferson, Jackson, Lincoln, or FDR) using a political forum to call out the Supreme Court for an impolitic and unpopular decision.
Crowe, an assistant professor of political science at Williams College, argues that both reactions were rooted in an erroneous assumption “that judicial power is separate from and outside the realm of democratic politics” (p.271). In Building the Judiciary: Law, Courts, and the Politics of Institutional Development, Professor Crowe challenges this base assumption. Instead of emphasizing a separation between courts and politics, Crowe argues that the judicial branch is inherently political. This is not to suggest that judges are simply legislators in robes but rather that judicial power is both created and exercised in a political context. To lose sight of this, Crowe insists, is to lose sight of something fundamental to the American judiciary.
Given the prestige, respect, and influence of our modern courts, the assertion that judicial power is politically constructed raises more questions than it answers. The principal question Crowe asks in this study is: “How did the federal judiciary in general, and the Supreme Court in particular, transcend early limitations and become a powerful institution of American governance?” (p.2) This is a big question, and Crowe’s answer comes by way of a holistic historical narrative [*304] of the political development of the judicial branch. The six substantive chapters proceed chronologically, and each chapter excavates a transformative period in the life of the federal judiciary, highlighting a “durable shift in governing authority” (to borrow Orren and Skowroneck’s phrase). In addition to being chronological, the chapters are thematic, focusing respectively on the establishment (1789-1805), reorganization (1805-1850), empowerment (1850-1877), restructuring (1877-1913), bureaucratization (1914-1939), and specialization (1939-2000) of the national court system. These substantive chapters are bookended by introductory and concluding essays.
Crowe’s narrative is well organized, and he adheres to the old adage to “tell them what you’re going to tell them, tell them, and then tell them what you told them.” He introduces each section with an overview of the time period and developmental argument, and he concludes with a narrative recap and a list of key questions and answers. The format is less prosaic but more academically useful than other histories of the federal courts, and the repetition and organization make Building the Judiciary particularly suited for classroom use.
The unifying theme in each of the chapters is the political element to judicial institution building. Beginning with Washington’s first term in 1789, Crowe reconstructs the early congressional debates over the size, scope, and function of the federal judiciary, focusing in particular on the entrepreneurial efforts of Senator Oliver Ellsworth (the principal author of the Judiciary Act of 1789). Crowe next explores the political choices that fleshed out and organized the federal judiciary during the eras of Jeffersonian and Jacksonian democracy. Throughout, Crowe underscores the importance of both congressional action and inaction. “[W]hether the first branch chooses to address the third or neglect it – and, perhaps, more important, precisely how it chooses to address it or neglect it,” Crowe insists, “determines, in large part, the shape and extent of judicial power” (p.131, emphasis in original).
Crowe next turns to the empowerment of the judiciary during the Civil War and Reconstruction eras. The broader nationalistic consequences of the Civil War, coupled with the centralization of the judiciary in the Jurisdiction and Removal Act of 1875, led to the creation of a powerful, centralized, and decidedly national federal judiciary in the late nineteenth century. After the end of Reconstruction in 1877, many of the political debates involving the federal courts centered on judicial administration, and the reforms during the Gilded and Progressive eras were aimed at improving the performance and capabilities of the judiciary. Two legislative efforts in particular – the Circuit Courts of Appeals Act of 1891 and the Judicial Code of 1911 – “alleviated the burden of the Supreme Court, eliminated circuit riding, simplified the judicial system, and completed a fundamental restructuring of Oliver Ellsworth’s 1789 judicial architecture by eliminating one tier of unstaffed courts and replacing it with a new tier of fully staffed courts” (p.195). As benign as these reforms may sound, Crowe highlights the political calculations involved, and he maintains [*305] that even when judicial institution building was “dominated mostly by performance goals, judicial reform remained – as it had been in all prior time periods—a politically constructed process” (p.195).
Finally, mid- and late-twentieth-century judicial institution building has been marked by periods of bureaucratization and specialization. In the interwar and New Deal years, the Judicial Conference Act of 1922 created the federal Judicial Conference; the Judiciary Act of 1925 expanded certiorari jurisdiction; the Rules Enabling Act of 1934 delegated rule-making authority to the Court; and the Administrative Office of the Courts Act of 1939 created the bureaucratic structure of the federal court system. In the post-War years, the Federal Magistrate Act of 1968 replaced United States commissioners with judicial magistrates; the Federal Improvement Act of 1982 created a specialized circuit court for patent cases; and the Foreign Intelligence Surveillance Act of 1978 created two specialized courts focused on national security. These recent developments are perhaps less dramatic than the events that led to the creation and empowerment of the judiciary in the nineteenth century, but each serves to bolster Crowe’s central claim that the extent and exercise of judicial power cannot be severed from the political choices of our elected representatives.
Crowe’s narrative is well written and well sourced, a first-rate piece of scholarship and an important addition to the work being done on American political development. The book is not merely of historical interest, however, and in conclusion Crowe highlights one important normative implication that may temper and perhaps redirect many of the contemporary criticisms of the federal judiciary: If “Americans – on the left, on the right, in the center – do view increased judicial power as problematic,” Crowe insists, “. . . then we have no one to blame but our elected officials . . . and 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.279).
Orren, Karen, and Stephen Skowronek. 2004. The Search for American Political Development. New York: Cambridge University Press.
Citizens United v. Federal Election Commission 558 U.S. 50 (2010).
Copyright by the Author, Justin B. Dyer