Congress and the Court: A Case Study in the American Political Process

By Walter F. Murphy

Princeton political scientist Walter Murphy analyzed the role of Congress in trying to manage an activist Supreme Court at a time of seismic change in the law and evolving interplay between these powerful institutions. As the original dustjacket offered, this is a "first-rate assessment of the delicate balance of power between Congress and the Supreme Court as it affects the American political process."

The new digital republication of this classic work adds a 2014 Foreword by law professor Thomas Baker of F.I.U., who notes the continuing relevance of Murphy's insights: "The principal object lesson he offers is that what happened in the 1950s happened before and will happen again, that separation of powers showdowns are cyclical." In sum, "This book was recognized immediately upon publication as an important contribution to the literature on separation of powers and in particular the constitutional dynamic between Congress and the Court." It "continues to enjoy in the canon of constitutional law" a recognized status, to both legal academics and political scientists, as Baker explains in his contemporary introduction.

The digital edition presents the original text and tables accurately and properly formatted as an ebook; it features active contents, linked chapter footnotes and endnotes, and even a fully-linked Index for continuity with the original print edition. Originally published by the University of Chicago Press, this is an authorized and unabridged new addition to the Classics of Law & Society Series from Quid Pro Books.

• Language: English
• Publisher: Quid Pro, LLC
• Release date: Aug 31, 2014
• ISBN: 9781610272681

Walter F. Murphy

Novelist and long-time professor of constitutional law at Princeton, Walter F. Murphy authored The Roman Enigma, Upon This Rock, and the New York Times bestselling novel The Vicar of Christ. His much-cited nonfiction works include Elements of Judicial Strategy and Congress and the Court.

Book preview

Congress and the Court

CONGRESS

AND

THE COURT

A Case Study in the American Political Process

Walter F. Murphy

Classics of Law & Society

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QUID PRO BOOKS

New Orleans, Louisiana

Smashwords edition. Copyright © 1962 by Walter F. Murphy; reprint edition © 2014 by Doris Maher Murphy. Foreword © 2014 by Thomas E. Baker. All rights reserved. No part of this book may be reproduced by any mechanical, photographic, or electronic process, or other recording, nor may it be stored in a retrieval system, transmitted, or otherwise copied for public or private use—other than for fair use—without written permission by the current publisher.

Previously published in 1962 (and reprinted in the Phoenix Books paperback edition in 1965) by the University of Chicago Press, Chicago, Illinois.

Published in 2014 by Quid Pro Books, at Smashwords. Part of the Classics of Law & Society Series from Quid Pro Books.

ISBN 978-1-61027-268-1 (ebk)

ISBN 978-1-61027-266-7 (pbk)

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Publisher’s Cataloging in Publication

Murphy, Walter F., 1929-2010

      Congress and the Court: A Case Study in the American Political Process / Walter F.

      Murphy.

            p. cm. — (Classics of law & society)

      Includes bibliographical references and index.

      ISBN 978-1-61027-268-1 (ePUB ebook edition)

1. United States—Congress. 2. United States—Supreme Court. I. Murphy, Walter F. II. Title. III. Series.

KF 8748 .M84 2014

2014383091

This is an authorized and unabridged digital republication of the original work, adding an updated biographical statement and author photograph. The latter is provided courtesy of Doris Maher Murphy. The new reprint edition also features a new introductory Foreword by Thomas E. Baker. The publisher thanks Professor Baker for his new contribution to this classic work.

ALSO BY WALTER F. MURPHY,

IN NEW EDITIONS FROM QUID PRO BOOKS:

Elements of Judicial Strategy

The Vicar of Christ

Upon This Rock: The Life of St. Peter

The Roman Enigma

To my Mother

and to

the memory of my Father

CONTENTS

Foreword (2014)

Preface (1962)

1. Introduction

I THE HISTORICAL PERSPECTIVE

2. Marshall, Taney, and the Democracy

3. The Struggle for Political Supremacy, 1866–1937

II THE WARREN COURT

4. Judicial Restraint from Stone to Warren

5. The Resurgence of Judicial Power

III THE CONGRESSIONAL REACTION

6. The Jencks Bills

7. The Attack Gains Momentum

8. October Term, 1957

9. Showdown in the Senate

10. The Crisis Resolved

IV CONCLUSION

11. Congress and the Court

Notes

Case Index

Subject Index

About the Author

The Supreme Court, a stormy petrel

in the politics of the country

CHIEF JUSTICE WILLIAM HOWARD TAFT

FOREWORD

A 21st Century Précis to a 20th Century Classic

Thomas E. Baker

This book is a classic. The year CONGRESS AND THE COURT was published, it won the Merriman-Cobbs-Hughes Award from the American Academy of Public Affairs. It has become part of the canon of American constitutionalism and U.S. political science.¹ I am honored to write a Précis for this new edition of this important work. And I am pleased to honor the memory of a man I knew as a friend and admired as a colleague: Dr. Walter F. Murphy, McCormick Professor of Politics, Princeton University.

The dust jacket of the original published edition of this book promised, A first-rate assessment of the delicate balance of power between Congress and the Supreme Court as it affects the American political process. The author keeps this promise in four parts. Part I of the book, subtitled The Historical Perspective, reviews the controversies between the Supreme Court and Congress from the era of Chief Justice Marshall through the defeat of FDR’s Court-packing plan in 1937. Part II of the book, subtitled The Warren Court, summarizes the period between 1937 and the appointment of Earl Warren as Chief Justice in 1953.² Part III, subtitled The Congressional Reaction, chronicles the debate in the Eighty-fifth Congress in eyewitness fashion. It is the compelling emphasis of the case study and it reads like a well-written detective story,³ relying on contemporary press coverage and interviews that Murphy personally conducted with the legislative players, the key members of Congress, and their staffers. Part IV provides some conclusions by the author — the principal object lesson he offers is that what happened in the 1950s happened before and will happen again, that separation of powers showdowns are cyclical.

The narrative and granularity in Part III explains why the title of the book is Congress and the Court and not The Court and Congress. One reason for the emphasis on Congress, of course, is that the Congress conducts its legislative business in public for the most part; by comparison, the Justices perform behind the red curtains in chambers in private. It is a mark of excellence in this book that Murphy’s provisional account — how he surmised that the Justices followed the Bard’s wisdom that the better part of valor is discretion⁴ — was indeed finally confirmed when a later generation of scholars went behind the curtains in the papers of the Justices.⁵

The important take away from this book is how the separation of powers arranges the three branches into something that resembles an eighteenth-century orrery — one of those mechanical models of the solar system that fits together with the Montesquian intricacy of a clockwork design and with an elaborately pre-determined pattern of reciprocal movements synchronized in tandem.⁶ Indeed, the Framers were self-consciously and deliberately practicing the science of politics.⁷ As Murphy noted with irony, Tension among the three branches of the federal government is inevitable, a tribute to the skill of the Framers (259).

The three-act constitutional morality play debuted in John Marshall’s day and this book chronicled the 1950s revival in dramatic terms. First, the Supreme Court decides important issues of public policy. Second, the public and the press criticize the Court and Congress gets into the act to threaten remedial or retaliatory legislative action. Third, the Justices sound a quiet retreat. The 1950s plot climaxed in Congress with the defeat of segregationists and the rise and fall of McCarthyism and their failed legislative proposals to undo Supreme Court decisions and to reduce the power and influence of the Justices. Anti-Court factions receded from the scene. The playbill would read, The Court — and the Constitution — Move On. Murphy’s account of the intrigue and plot twists in Congress reminds us of a time when the actors were larger than life characters; in the Senate men like Lyndon Johnson, Everett Dirksen, and Sam Ervin; in the House men like Sam Rayburn and John McCormack. A comparison to today’s congressional leaders of both parties generates nostalgia, if not despair for our Republic. The Supreme Court, as well, was staffed by Alpha-justices like Earl Warren, Hugo Black, Robert Jackson, Felix Frankfurter, John Harlan, and William Douglas. That Justice League could have been sketched by Stan Lee. Whether you are a strict constructionist or a loose constructionist, whether you are an originalist or a living constitutionalist, you long for those halcyon days. Whatever your views of the run of decisions from the Warren Court, you must admit that the Warren Court was always as interesting as it was controversial. Indeed, the biggest mistake Court-watchers make about the Warren Court is to believe it was normal or typical. It was exceptional in every sense of the word.

Give Murphy credit for intellectual honesty and integrity. He goes on the record to state his own position up front. Eschewing any scholarly pretense to being absolutely neutral, he stands athwart the Zeitgeist of the Cold War to take the side of the Warren Court against its critics (ix). He quotes with approval C. Herman Pritchett, University of Chicago, one of the great political scientists of his own era, as authority for his own opinion that the High Court was performing [the] highest of judicial functions (ix).⁸ At the same time, Murphy was a respectful judicial agnostic who never joined the cult of the robe (47).⁹ Rather, he sought to play the meaningful role of the public intellectual who contributes to the first draft of history as events are still unfolding.

This book was recognized immediately upon publication as an important contribution to the literature on separation of powers and in particular the constitutional dynamic between Congress and the Court. It was greeted by noteworthy and favorable reviews among academicians. Professor Stephen L. Wasby, Southeast Missouri State College, wrote that Murphy’s study helps fill a significant gap in our knowledge and provides for scholar and layman alike a much fuller explanation of the place which the Supreme Court actually holds in the American political and governmental system.¹⁰ Professor George W. Spicer, University of Virginia, complimented the book’s thorough and meticulous research and recognized it as a substantial addition to the literature of congressional-judicial relations.¹¹ Senator Estes Kefauver (Democrat; TN), who is featured in the book as a moderate broker of congressional compromise and emerges as a defender of the Supreme Court (see 131, 165, 195 & 209), described it as fine scholarship and a valuable addition to the literature of a vital and fascinating subject, namely, the relationship between Congress and the Court.¹² In the prestigious ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE, Professor Edward L. Barrett, Jr., University of California, praised the work as a unique and invaluable contribution to our understanding of that most intricate and delicate of governmental relationships — the relationship between the Supreme Court and the Congress of the United States.¹³

The status this book continues to enjoy in the canon of constitutional law is illustrated nicely in three celebrated accounts of the Warren Court by contemporary leading scholars. Professor Morton F. Horwitz, a leading legal historian from Harvard University, traces the thrust and parry by the Court and Congress that led to the demise of McCarthyism and independently agrees with Murphy’s account and insights.¹⁴ Professor Mark Tushnet, Georgetown University, rehearsed the same account of this period following Murphy’s case study.¹⁵ In perhaps the leading account of the Warren Court, Professor Lucas A. Powe, Jr., a former law clerk to Justice Douglas from the University of Texas, explicitly relies on CONGRESS AND THE COURT to explain and understand this period in the historical relationship between the two branches.¹⁶ Thus, there is no mistaking the important influence this book has had on historians, political scientists, and law professors.¹⁷

There is a not unimportant philosophical divide between most political science professors and some constitutional law professors that informs a careful reading of this book. The difference is the difference between the attitudinal model and legal realism. The philosophical difference can be simplified and exaggerated for present purposes: law professors want to believe that the Constitution, history and tradition, precedent, Framers’ intent, and other related sources of meaning constrain how individual Justices interpret the Constitution and decide constitutional issues, while political scientists do not.¹⁸ The regnant paradigm in political science is the attitudinal model which essentially posits that Supreme Court decisions are based on the facts of a case viewed with the ideological attitudes and values of the individual Justices. That is how and why law professors write long discursive qualitative articles parsing majority, concurring and dissenting opinions while political scientists code the outcome in a case quantitatively in binary terms, e.g., liberal or conservative, such as for or against the rights of the accused in a criminal case. Thus, Murphy (the political scientist) and I (the law professor) start at different ends of the spectrum but come closer together eventually. He is stuck with judicial alignments that he sorts into liberal or conservative outcomes, but unlike some of his fellow political scientists he does not attribute any empirical objectivity to those loaded terms.¹⁹ I believe that Justices follow their legal philosophies to a conclusion about a case and vote accordingly, not the other way around. My paradigm is that there is a meaningful difference between law and politics. I believe in the rule of law and I reject the rule of judges. What the Warren Court was doing was constitutional law; what played out in Congress, in response, was constitutional politics. I must admit to a streak of legal realism for judges, however, even Supreme Court Justices, especially Supreme Court Justices, more than other judges. Therefore, I necessarily agree with Murphy that an individual’s life history informs the justice’s jurisprudence and forms the justice’s philosophy of the Constitution:

In a post-Freudian world, there can be no serious doubt that a judge’s . . . personal values influence the way in which he or she interprets the Constitution. Society can require that judges be neutral between parties to a case; but no one can ask a mature adult to be neutral between ideas that go to the heart of political philosophy. Not only do we all carry the effects of early childhood, religious and moral instruction, family relations, and social class, but we are affected by our more formal education and our experiences through life.²⁰

In this regard, I am situated within the cross currents that form the mainstream of contemporary legal thought: I find explanatory power in both formalism and realism.²¹

Murphy was the founder and leading proponent of what might be called the Princeton School of constitutional studies. He sought to understand and explain governmental institutions — Congress and the Supreme Court — from the perspective of institutional history and constitutional design and to measure their impact by social results. His approach combined normative and empirical methods. He stood outside the law school domain of lawyers and judges and, at once, he stood outside the empirical domain of political scientists.

This book is prescient in many ways that keep it relevant. Consider that one of Murphy’s hypotheses is that Congress looks to the Court as a potential ally against a strong President.²² As this Précis is being written, the Speaker of the House of Representatives is championing a bill to authorize him to go into federal court and sue President Obama over the Administration’s implementation of the Patient Protection and Affordable Care Act, popularly known as Obamacare.²³

In closing, a few words about Walter Murphy the man are in order.²⁴ Had they known him, both Robert Burns and J.D. Salinger would approve of my borrowing their famous line to proclaim Walter a gentleman and a scholar.²⁵ Walter taught in the Department of Politics at Princeton University for nearly four decades. James Madison, the Father of the Constitution, went there to study under John Witherspoon, one of the signers of the Declaration of Independence. Walter held the McCormick Professorship established there for Woodrow Wilson and then held by two of the leading American constitutionalists, Edwin S. Corwin and Alpheus T. Mason. Walter lived up to that intellectual lineage. He was a revered figure on campus.²⁶ I can attest that his students loved him. I had a former student of his as a law student who continued to sing his praises and who personally introduced us because he wanted me to know his most famous Princeton professor.

Walter was a prominent scholar. Besides the book being introduced here, two of his other works were path-breaking and deserve brief mention. In 1964, he published ELEMENTS OF JUDICIAL STRATEGY, which pulled back the red curtain at the Supreme Court.²⁷ He relied on internal documents to explore how the Justices work out their decisional differences and negotiate with each other over opinions. In 2006, he wrote what has been called his magnum opus,²⁸ titled CONSTITUTIONAL DEMOCRACY: CREATING AND MAINTAINING A JUST POLITICAL ORDER.²⁹ It was an exhaustive comparative study in the constitutional law of Western democracies. Walter was a teacher’s teacher in that he edited important textbooks. One of my favorites, near and dear to me as a teacher, was his brilliant and original textbook on Constitutional Law,³⁰ from which I taught generations of law students at three law schools. There is no better way to understand the hermeneutics of American constitutional law. It informed my own scholarship greatly.³¹ In this way, Walter was an influential mentor to me and scores of other constitutional law professors.

I met Walter when he came to Texas Tech University to speak at the Law School when I was teaching there. My wife Jane Marie and I hosted a dinner party in his honor attended by many of our students, and he regaled us with stories of Justices he knew over the years. He flirted innocently and good-naturedly with Jane Marie who developed a crush on him that she never got over. It would not be trite to compare Walter to the most interesting man in the world archetype in the long-running beer commercials. After graduating from Notre Dame, he served in the Marine Corps during the Korean conflict³² and earned the Distinguished Service Cross and a Purple Heart. He was buried in Arlington Cemetery with full military honors.³³ He wrote a 600-page novel that would make Dan Brown jealous. It is the story of Declan Walsh, a U.S. Marine Medal of Honor winner, who served as Chief Justice of the United States and then resigns to become a monk who eventually is selected to be the first American pope.³⁴ It was on the New York Times bestseller list for three months.³⁵ He followed it up years later with a biography of the first Pope of his beloved Catholic Church.³⁶

Elected a fellow of the American Academy of Arts and Sciences in 1976, Walter received fellowships from the National Endowment for the Humanities and Guggenheim Foundation and three Fulbright awards. In 1995, the Law and Courts Section of the American Political Science Association gave him its Lifetime Achievement Award. Walter was not the typical or average college professor. How many college professors do you know who speak out against the government so notoriously and effectively to be placed on the No-fly list during the Bush #43 administration?³⁷ Most political science professors talk and write only to other political science professors.³⁸

After we got to know each other and hit it off, Walter invited me to Princeton for a program with Justice Antonin Scalia, and we all hung out together for a most memorable weekend. The Justice lectured at Walter’s constitutional law class. There were several informal sessions with faculty and students.

Twenty-five years later, I still can vividly recall three conversations that weekend. The first was walking from campus to Walter’s nearby house. It was a brisk fall day. Justice Scalia was crunching his way through the brown leaves walking fast against the cold and holding forth about his then-recent dissent in Morrison v. Olson,³⁹ a solitary dissent which has since become his own all-time favorite opinion.⁴⁰ When Walter and I noted that no one else on the Court had agreed with him, Scalia sounded off operatically on Chief Justice Rehnquist’s majority opinion smiling over the fact that I had worked for the Chief a couple of years before. It was a rush to talk shop with Scalia and Murphy. The second conversation was over dinner, in the basement of a nice Chinese restaurant. There were several faculty and guests seated at round tables and Walter showed me the undeserved honor to sit at Scalia’s table. Conversation was polite and frankly boring until I asked the Justice — innocently I promise — what he thought of televising oral arguments at the High Court. At that mention, Scalia, who loves a good argument, went into his oral argument mode.⁴¹ As Holmes, the detective not the Justice, was fond of observing: the game was afoot. We went back and forth for a good twenty minutes. The others at the table resembled fans at a tennis match watching each of us serve and volley. My recollection, which is sufficiently self-serving to call it into question in my own mind, was that it ended when I suggested there was a credible First Amendment argument that the press and the public had a right of access that required televising the arguments. When Scalia scoffed at that suggestion, I shot back, Well, Bill Brennan could write a Supreme Court opinion holding that it was constitutionally required. The Justice laughed and slapped the table as if to gavel the hearing over. Afterwards, a member of the dinner party rebuked me that I may have offended their guest, that I had misbehaved and that my adversariness had been bad manners. I remember Walter laughed and proclaimed that it was great fun and he was sure that the Justice enjoyed it. I think he was right about Scalia. I hope so. But I also appreciated Walter coming to my defense and treating me as a peer, although I was not. The third conversation was back at Walter’s house. We were sitting around a handsomely-appointed den, replete with rich paneling and photographs of Walter with famous people. We were drinking some good Scotch out of heavy tumblers. I do not remember cigars but they would have fit the scene. Walter began to regale us with anecdotes about Supreme Court Justices. Not canned stories that show up today on Wikipedia. Stories of his adventures and travels with them. He apparently was a drinking buddy and a wingman for William O. Douglas. I remember that Walter gave an account of how Douglas was fond of going out wenching (Walter’s word) in Georgetown and living up to his nickname Wild Bill.⁴²

Each of these three vignettes reveals an endearing quality of Walter’s. First, while he was not law-trained he could hold his own with lawyers and judges and law professors, i.e., he was a constitutionalist of the first order. He was comfortable and confident arguing constitutional law with Supreme Court Justices. Second, he had an engaged and engaging intellect; he was the embodiment of a liberal education. He understood Scalia and identified with his love of a good argument. Third, although he labored in the groves of academe, he lived in the real world and he lived large. His virtue was on display in his own life, however. By all accounts, as was evident to anyone who knew him, Walter was a devoted and loving husband and father, in sharp contrast to Douglas. His first marriage to Mary Therese Dolan lasted 54 years; then after her passing and in retirement he reconnected with the first girl he ever dated, Doris Maher, and they were happily married at the time of his death.⁴³ He dedicated CONGRESS AND THE COURT to his mother and the memory of his father (v) and he expressed his appreciation to his wife and children for cheerfully sharing three years of their lives the friends and foes of the Warren Court (x).

One of the regrets of my career is that I fell out of touch with Walter over his later years, as I moved around. This introductory homage to him and to this new edition of his book is tinged with a sense of loss over his passing and a feeling of gratitude for his memory. That Walter’s gentle reader might take away from this new edition some important insights into the Constitution from one of the greatest constitutionalists of his generation is some comfort to me as his friend and colleague. Walter Murphy is gone, but the Constitution lives.⁴⁴

THOMAS E. BAKER

Professor of Law

Florida International University College of Law

July, 2014

Miami, Florida

Footnotes

1 Thomas E. Baker, A Constitutional Bibliography, 5 WM. & MARY BILL RTS. J. 277, 288 (1996), citing WALTER F. MURPHY, CONGRESS AND THE COURT: A CASE STUDY IN THE AMERICAN POLITICAL PROCESS (University of Chicago Press 1962).

2 I was born in 1953. Therefore, what for me is history in textbooks was for Murphy newspaper current events. That generation gap designates him one of my chief constitutional mentors. Murphy lived this book; I merely read it.

3 Edward L. Barrett, Jr., Book Review, 345 ANNALS AM. ACAD. POL. & SOC. SCI. 153, 153 (1963).

4 William Shakespeare, THE FIRST PART OF KING HENRY IV act 5, sc 4.

5 See infra text accompanying notes 14–17.

6 The idea is captured in the title of one of the best books to come out at the Bicentennial of the Constitution. MICHAEL KAMMEN, A MACHINE THAT WOULD GO OF ITSELF: THE CONSTITUTION IN AMERICAN CULTURE (1986).

7 THE FEDERALIST No. 9 (Alexander Hamilton).

8 It is worth repeating the entire quotation:

While not agreeing with every pronouncement of Warren, Black, Douglas, or Brennan, I concur in C. Herman Pritchett’s evaluation of the decisions of the Court’s controversial 1956 Term: No Court can preserve liberty in a country whose people are bent on losing it. But the judgment of a Court, which accepts its responsibility under the Constitution to judge, can give a nation a chance to see how its actions look in the long perspective of history. . . . It can give a community the opportunity to measure its conduct alongside the yardstick of constitutional liberty. The Warren court is performing this highest of judicial functions.

(ix) quoting C. HERMAN PRITCHETT, THE POLITICAL OFFENDER AND THE WARREN COURT 74 (1958).

9 Paradoxically, during the period of the 1890’s and the early 1900’s, the cult of the robe became a firmly established part of the lore of American government (47). See also (48) (referring to the magic which the cult of robe bestowed on judges).

10 Stephen L. Wasby, Book Review, 28 MO. L. REV. 157, 159–60 (1963).

11 George W. Spicer, Book Review, 24 J. POL. 785, 787 (1962).

12 Estes Kefauver, Book Review, 16 VAND. L. REV. 476, 479 (1963).

13 Barrett, supra note 3 at 153.

14 MORTON J. HORWITZ, THE WARREN COURT AND THE PURSUIT OF JUSTICE 52–73 (1998).

15 MARK TUSHNET, THE WARREN COURT IN HISTORICAL AND POLITICAL PERSPECTIVE 5–6, 202 (1993).

16 LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS 100, 101, 128, 132 & 133 (2000).

17 A June 3, 2014 online search for citations to the book in the WestlawNext database Law Reviews & Journals yielded 91 articles referring to the book.

18 Michael J. Gerhardt, Attitudes about Attitudes, 101 MICH. L. REV. 1733, 1733 (2003).

19 As a prefatory matter, Murphy admits his uneasiness with using the same terminology for members of Congress and Justices on the Supreme Court:

There is a perennial problem of the proper nomenclature to be applied to groupings along the political spectrum, and this difficulty is even more apparent when discussing judicial alignments. Liberal and conservative are terms as slippery as left and right, and putting them in quotation marks does not infuse them with the quality of precise, objective meaning. I have frequently used these words in their general, but widely understood sense. I make no apology other than to repeat what . . . has [been] said about this problem: It is a distressing fact that the most meaningful words in the lexicon of government are those least capable of clear definition.

(ix).

20 WALTER F. MURPHY ET AL., AMERICAN CONSTITUTIONAL INTERPRETATION 61 (1st ed. 1986).

21 One of the leading legal philosophers of this generation has described it this way:

The great debate over formalism and realism has a tortuous history. It was the jurisprudential debate of twentieth-century American legal theory, and it continues, rehashing old moves, relabeling old positions, and — this is the hopeful bit — exhibiting new, surprising, and productive developments. One of those productive developments has been the turn to rigorous methods in positive legal theory. Contemporary legal theory is increasingly influenced by methods and ideas imported from the social sciences — a development that is part of a larger trend in the legal academy: interdisciplinarity. . . . One of the most promising trends has been the gradual erosion of the wall of acoustic separation that insulated lawyers, judges, and legal scholars from the rich body of empirical work on judicial behavior developed by political scientists, represented by the so-called attitudinal model. . . . The core idea of the attitudinal model is that ideology (and not the law) is the most important determinant of judicial behavior. The rise of the attitudinal model in political science was anticipated and influenced by the American legal realists, a loosely defined group of judges, lawyers, and scholars, who marked the difference between the law in action and the law in books and formulated early versions of what is now called the indeterminacy thesis associated with the critical legal studies (CLS) movement. Like the attitudinalists in political science, critical scholars who embraced the indeterminacy thesis contended that politics, not law, is the primary determinant of judicial behavior.

Lawrence B. Solum, The Positive Foundations of Formalism: False Necessity and American Legal Realism, 127 HARV. L. REV. 2464–65 (2014) (reviewing LEE EPSTEIN, WILLIAM M. LANDES & RICHARD A. POSNER, THE BEHAVIOR OF FEDERAL JUDGES: A THEORETICAL AND EMPIRICAL STUDY OF RATIONAL CHOICE (2013)).

22 Walter F. Murphy & Joseph Tanenhaus, Publicity, Public Opinion, and the Court, 84 NW. U. L. REV. 985, 988 n. 12 (1990) (Murphy citing his own 1962 book).

23 Ashley Parker, Boehner to Seek Bill to Sue Obama Over Executive Actions, N.Y. TIMES, June 25, 2014, http://www.nytimes.com/2014/06/26/us/politics/boehner-to-seek-bill-to-sue-obama-over-executive-actions.html.

24 An obituary in the national paper of record is recognition of an influential career as a public intellectual. Bruce Weber, Walter Murphy, Author and Princeton Political Scientist, Dies at 80, N.Y. TIMES, May 2, 2010, http://www.nytimes.com/2010/05/02/us/02murphy.html. See also Ruth Stevens, Leading Constitutional Scholar Walter Murphy Dies at Age 80, NEWS AT PRINCETON, April 22, 2010, http://www.princeton.edu/main/news/archive/S27/19/53O68/index.xml?section=topstories.

25 He was possessed of the virtue of gentlemanliness. See HARVEY C. MANSFIELD, MANLINESS (2006) (criticism for this reference should be assigned to me and not to Walter: de mortuis nil nisi bonum).

26 Weber, supra note 24.

27 WALTER F. MURPHY, ELEMENTS OF JUDICIAL STRATEGY (1964).

28 Weber, supra note 24.

29 WALTER F. MURPHY, CONSTITUTIONAL DEMOCRACY: CREATING AND MAINTAINING A JUST POLITICAL ORDER (2006).

30 AMERICAN CONSTITUTIONAL INTERPRETATION, supra note 20.

31 The paradigm in this textbook equipped me to write THOMAS E. BAKER & JERRE S. WILLIAMS, CONSTITUTIONAL ANALYSIS IN A NUTSHELL (2003).

32 Walter, the Marine, served proudly, of course, and heroically. Walter, the constitutionalist, would approve of my careful wording not to call it a war. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 611 (1952) (Frankfurter, J., concurring) (. . . at a time when this country was not at war, in the only constitutional way in which it can be at war); id. at 643 (Jackson, J., concurring) (I do not, however, find it necessary or appropriate to consider the legal status of the Korean enterprise to discountenance an argument based on it.).

33 His friend and colleague Stan Katz told the story of Walter’s heroism:

On June 10, 1951 he led his platoon up one of the three peaks of Hill 676. The peaks were strongly fortified by North Korean troops, so that Walter had to lead his men straight into enemy fortifications. They came under heavy rifle and machine gun fire, and suffered a large number of deaths and casualties — one particularly brave Marine dashed into the open to take out the remaining North Korean machine gun nest with a grenade. Walter and his comrades had to dodge grenades that the enemy rolled down the slope into their midst. He later wrote that Another grenade landed a few feet in front of me and slowly, very slowly, rolled between my legs. I prayed it farther down the slope, where it blew up. I remember thinking ‘You don’t have to know Sigmund Freud to be terrified by that.’ They took the hill with a final bayonet charge, but only 14 members of the platoon survived the battle. The Marine who sacrificed himself to destroy the enemy machine gun received the Medal of Honor. Walter received the Distinguished Service Cross for his bravery on Hill 676. One of his non-coms later said We’d storm the gates of hell if Mr. Murph would lead us.

Stan Katz, Walter F. Murphy, A Hero of War, and of Scholarship, CHRONICLE OF HIGHER EDUCATION, July 30, 2010, http://chronicle.com/blogs/brainstorm/walter-f-murphy-a-hero-of-warof-scholarship/25895.

34 WALTER F. MURPHY, THE VICAR OF CHRIST (1979; rept. 2014).

35 Weber, supra note 24.

36 WALTER F. MURPHY, UPON THIS ROCK: THE LIFE OF ST. PETER (1987; rept. 2014).

37 Whether or not it happened the way Walter believed it to have happened, it was a good story. He believed that his name showed up on the terrorist watch No-fly list in petty bureaucratic retribution for his outspoken opposition to the Administration’s foreign policy. He also believed that his name was removed after he made numerous complaining phone calls to various government officials he knew personally; he believed those calls were monitored by the NSA as part of its domestic surveillance protocol. Ryan Singel, Professor: Bashing Bush Got Me on Watch List: Suggests NSA Might Have Taken Him Off, WIRED, April 10, 2007, http://www.wired.com/2007/04/professor_bashi/ (interview with Walter F. Murphy). Compare Mark Graber, Another Enemy of the People?, BALKINAZATION, Apr. 8, 2007, http://balkin.blogspot.com/2007/04/another-enemy-of-people.html (finding the report credible), with Orin Kerr, Update on the Walter Murphy Story, THE VOLOKH CONSPIRACY, June 10, 2007, http://www.volokh.com/archives/archive_2007_06_10-2007_06_16.shtml (expressing doubt).

38 Ditto law professors. When a young Felix Frankfurter sought advice from Justice Holmes about becoming a law professor, the old man harrumphed, [A]cademic life is but half life — it is a withdrawal from the fight in order to utter smart things that cost you nothing except the thinking them from a cloister. Letter from Oliver W. Holmes, Jr. to Felix Frankfurter (July 15, 1913), reprinted in Oliver Wendell Holmes Jr. Papers (1985).

39 487 U.S. 654 (1988). The majority upheld the constitutionality of the Independent Counsel Act. Justice Scalia repeated his opening salvo. After invoking the rule of law that is the Constitution and explaining that the issue involved the separation of powers, he declared:

That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish — so that a gradual concentration of the several powers in the same department, Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

40 Jennifer Senior, In Conversation: Antonin Scalia, NEW YORK MAGAZINE, Oct. 6, 2013, http://nymag.com/news/features/antonin-scalia-2013-10.

41 See Jay D. Wexler, Laugh Track, 9 GREENBAG 2d 59 (2005); Adam Liptak, So, Guy Walks Up to the Bar, and Scalia Says..., N.Y. TIMES, Dec. 31, 2005, http://www.nytimes.com/2005/12/31/politics/31mirth.html?incamp=article_popular_1 (reporting that Justice Scalia perennially delivers the most laugh lines during oral arguments).

42 See BRUCE ALLEN MURPHY, WILD BILL — THE LEGEND AND LIFE OF WILLIAM O. DOUGLAS 362–77 (2003) (chronicling how for Douglas the quest for new women was constant and unrelenting).

43 Weber, supra note 24.

44 Someday, sooner rather than later, someone will say the same for me. . . . Recall the poignant story of the last day on earth of Thomas Jefferson and John Adams, July 4, 1826. Both those old men had served on the Committee of Five appointed by the Continental Congress to draft the Declaration of Independence fifty years before. Each clung to life until that semicentennial anniversary. John Adams’ last spoken words were Thomas Jefferson survives. He could not know that Jefferson had passed a few hours before. DAVID MCCULLOUGH, JOHN ADAMS 646 (2001).

PREFACE

The observation that Supreme Court decisions are political in effect is commonplace, yet there is relatively little literature which actually explores the reactions of other branches of government to Court decisions. This book is an effort to contribute toward the filling of this gap. My purpose is the limited one of examining the decisions of the Warren Court and the resulting response of Congress, both to the decisions themselves and to the stimuli of interest groups whose goals were affected by judicial action. I hope that this case study will shed some light on Court-congressional relationships and will serve as one of the empirical steppingstones to a more complete theory of American politics than we now possess.

Like all studies which focus on a single period, this one has inherent limitations. It investigates the Court’s relations with Congress during a time of crisis. Much can be learned about the Court and Congress during periods of relative quiet, but there is also a great deal to be gained from observing the behavior of members of these two institutions under the stress of conflict. There is another difficulty, perhaps an insuperable one, which every case study must face, that of generalizing from a single instance. I have met this difficulty—though I do not claim to have completely overcome it—by beginning the book with a brief survey of previous clashes between Congress and the Court. I have not attempted a full history of Court-congressional relations; rather, I have tried to