Because the Supreme Court is powerful, it is largely able to fulfill its legal responsibilities. Because it is a court — because it lacks both the sword and the purse — it is vulnerable to being defied successfully by Presidents and states and punished by Congress.
This Essay argues that the Court has become powerful despite being vulnerable because it has learned through hard experience to perform two roles reasonably well. The first is legal: The Court interprets and applies the Constitution and federal statutes in disputes before it. The second is political: The Court must survive in a world in which it ultimately must persuade powerful politicians to abide by its decisions. In short, the Court has two central tasks, especially when under threat — preserving the rule of law, and protecting itself. Commentators who believe that the Court should focus exclusively on its legal function fail to credit sufficiently the fact that, even today, the Court does not just act; it can also be acted upon — or ignored.
As this Essay shows, the Court began playing both roles early on. The Court made itself available to interpret and apply the law, as Article III of the Constitution and the Judiciary Act of 1789 directed. But the Court soon learned that it could not continue performing this legal function if it did not develop a way of practicing self-protective politics. Drawing upon several historical episodes, this Essay contends that the Supreme Court inevitably, and (within limits) properly, takes account of political threats to itself in exercising judicial review.
Part I identifies the reasons for the Court’s institutional vulnerability and the devices that the Court has developed over time to navigate difficult situations, including the current challenges facing the Court. Parts II through IV examine three episodes from the nineteenth century in which the Court successfully, although not always perfectly, navigated existential threats to its continued authority: cases arising out of the Jeffersonian backlash against the judiciary after the elections of 1800; Georgia’s defiance of the Court in the Cherokee Cases of the 1830s; and the Court’s decisions about military trials after the Civil War. The Conclusion defends the Court’s use of the tools of judicial self-protection despite the potential costs of such use.