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Extra resources for Bloomberg Markets - February 2011
The cyclical threats that our state and federal courts have weathered are familiar to many. 1 A generation later, Jacksonian Democrats attempted to control and, in some cases, defy state and federal courts. In the aftermath of the Civil War, Radical Republicans embarked on an aggressive program of court curbing. A generation later, populists and progressives pursued numerous strategies to subdue conservative, Lochner-era 1 Emily Field Van Tassel and Paul Finkelman, Impeachable Offenses: A Documentary History From 1787 to the Present 91-107 (1999).
Once voters’ policy preferences are enacted into rules of law, it is up to judges to ensure that those rules of law are faithfully interpreted and upheld— an all but impossible task if judges are subject to the influence of threats, favors or constituencies that could endanger their unbiased judgment. Put another way, the rule of law would be corrupted if interest groups, public officials, powerful private citizens, or fleeting majorities of the public could intimidate a judge into interpreting a law to their liking or reading a law out of existence altogether.
In 1996, The Tennessee Conservative Union and other groups successfully campaigned for the defeat of Tennessee Justice Penny White on account of a decision she joined overturning a death sentence. In the next election cycle, Justice Adolpho Birch Jr. resisted a challenge to his retention based upon his decision in the same case. • In 1999, a candidate challenged the Wisconsin chief justice’s dissent from a decision upholding the constitutionality of the state’s child predator law, suggesting that predators would be free to prey on children if the incumbent had her way.