Complaints about Supreme Court and lower court rulings have a long and bipartisan history in the United States. President Franklin Roosevelt’s court-packing plan to increase the number of high court justices to 15 from nine grew out of decisions striking down parts of the New Deal.
Sheldon Goldman, a political science professor at the University of Massachusetts at Amherst, said these efforts generally fail. “When push comes to shove, aside from some of this demagoguery on the campaign trail, most Americans are genuinely conservative. That is, they don’t want to undermine the Constitution, they want to abide by it,” Goldman said.
More recently, Republican candidates since Richard Nixon in his 1968 campaign for the presidency have pledged to appoint conservative judges to counteract their perception of a judiciary dominated by liberal activists.
But Republicans have controlled the White House for 20 of the past 30 years, and the party breakdown on the federal bench reflects their edge, 437 appointees to 352 judges appointed by Democratic presidents.
Barry Friedman, a New York University law professor who has written a book about the relationship between public opinion and the high court, said he is puzzled by the effort to take federal courts out of the picture. He said that would increase the influence of more liberal-leaning state courts.
“The wonder of it coming from the Republicans now is that we have what is easily the most conservative Supreme Court in many, many years. This is nothing more than red meat they throw to the conservative base,” Friedman said.
Brandenburg’s not-for-profit group has been critical of both parties on what it sees as efforts to undermine judicial independence. He noted that Congress passed a 2005 law with bipartisan support that sought to pressure federal courts to weigh in on the protracted family fight over keeping Terri Schiavo alive, 15 years after she slipped into what her doctors called a permanent vegetative state.
“That was both parties of Congress running as fast as they could to placate a small number of people who were angry at the courts,” Brandenburg said. In Schiavo’s case, a Florida state judge ordered Schiavo’s feeding tube removed and federal courts refused to step in, even after Congress acted.
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