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Scholars working within the field of “Federal Courts” have, from the beginning, been concerned about the past and future of the federal courts as instruments of government. But the beginning of Federal Courts as a field was in the early 1950s, several decades after the Judiciary Act of 1891 created the intermediate circuit courts of appeals and almost three decades after the Judiciary Act of 1925 reconfigured the relationship between the Supreme Court and all other courts in the United States deciding questions of federal law. And the trajectory that the federal judiciary has traveled since that time has been relatively consistent. To the extent that this may have resulted in a failure to appreciate the forces that had already made the federal courts so powerful by the time Federal Courts came into its own, Justin Crowe’s recent book Building the Judiciary offers a helpful corrective.

Building the Judiciary seeks to answer questions about the puzzle of judicial institution building: “How did the federal judiciary in general, and the Supreme Court in particular, transcend its early limitations and become a powerful institution of American governance? How, in other words, did we move from a Court of political irrelevance to one of political centrality?” (P. 2) The book provides a “holistic historical narrative” that focuses on “‘architectonic’ politics: the politics of actors seeking to shape the structures of government in order to further their own interests.”(P. 6.) Crowe contrasts this focus with the “emphasis on judicial prerogative” that he attributes to a “prevailing but problematic ethos of judicial exceptionalism.” (P. 3.) The result of this ethos, Crowe contends, has been the neglect of important questions: “In seeking to understand how judges rule, we have largely neglected the conditions that have made it possible for judges to rule; in emphasizing how the judiciary acts upon politics, we have minimized the ways in which it is equally acted upon by politics.”(P. 5.)

Crowe’s examination of the federal judiciary as a product of architectonic politics focuses on “judicial institution building”: “the creation, consolidation, expansion, or reduction of the structural and institutional capacities needed to respond to and intervene in the political environment.” (P. 8.) The guts of the book are six chapters offering a “developmental account of judicial power” that “embeds case studies of a series of transformative moments within a more deeply contextual understanding of the process in the historical period under consideration.” (P. 15.) Opening and concluding chapters in which Crowe develops his approach and his broader conclusions provide structure and refinement.

Although the historical narrative is necessarily punctuated given how the federal judiciary has actually developed, Crowe provides a unitary framework for historical-institutional analysis that ensures his account is not simply a collection of unrelated episodes. For each period, Crowe asks three questions: Why was judicial institution building pursued? How was it accomplished? And what “concrete and enduring changes in the exercise of judicial power” resulted? (P. 10.) Crowe also identifies three goals that, alone or in combination, structured choices about institutional design in this process: policy (“satisfying substantive regime commitments”); politics (“consolidating partisan strength and preserving electoral support”); and performance (“maintaining a functionally efficient judicial branch”). (Pp. 10-11.) By asking the same set of questions and grouping the reasons for institution building with his three “P”s, Crowe is able to explain many aspects of a single “overriding purpose” for judicial institutional building over time: “to use the judiciary to further some end that would otherwise be difficult or impossible to achieve.” (P. 11.)

Crowe’s treatment of judicial institution building in the period of Jeffersonian and Jacksonian Democracy (1805-50) illustrates the types of insights that his focus on architectonic politics yields. He explains how performance concerns (driven largely by Westerners shut out of the circuit system) interacted with political concerns (stemming from the linkage between the creation of new circuits and the establishment of new Supreme Court seats) and with policy concerns (arising out of the nationalist tilt of Supreme Court rulings in the first few decades of this period) to shape reform efforts. These forces first blocked and then led to judicial institution building in the Judiciary Act of 1837, which in turn provided “the foundation for Southern slaveholding dominance of the Supreme Court” heading into the 1840s and ‘50s. (P. 130.)

Crowe deftly highlights the significance of this institution building by juxtaposing judicial decisions like Martin v. Hunter’s Lessee (in 1816) and Cohens v. Virginia (in 1821) with the political decisions of interest to students of architectonic politics. Crowe argues that these judicial decisions are comparatively less important than commonly thought. Although Martin and Cohens aligned the judiciary with nationalists, they “occurred within the prevailing stream of congressional action—perhaps doing little more than providing a judicial voice for a legislative enactment.” (P. 95.) And from the perspective of judicial institution building, attention to the limited reach of these decisions reveals what the federal judiciary could not do not its own, namely “convert the judiciary into an institution that could effectively administer justice in a growing nation.” (Id.) This inability of the federal judiciary to expand itself and to provide for the administration of justice in new states, Crowe argues, is just one example of the institutional judiciary’s dependence on Congress. More generally: “whether the first branch chooses to address the third branch or neglect it—and, perhaps more important, precisely how it chooses to address it or neglect it—determines, in large part, the shape and extent of judicial power.” (P. 131.)

The book’s periodization of the six historical chapters reveals just how much judicial institution building had already taken place by the time that Federal Courts appears on the scholarly scene. Crowe identifies six historic periods: Establishment (The Early Republic, 1789-1805), Reorganization (Jeffersonian and Jacksonian Democracy, 1805-50), Empowerment (The Civil War and Reconstruction, 1850-1877), Restructuring (The Gilded Age and the Progressive Era, 1877-1913), Bureaucratization (The Interwar and New Deal Years, 1913-1939), and Specialization (Modern America, 1939-2000). In comparison with the institutional developments that took place in the prior five periods, the developments of judicial institutions during the last period were more refining than transformative. (P. 269.)

While refinements during this last period are consistent with Crowe’s assessment of the relationship between the judiciary and politics in earlier periods, the transformations in those earlier periods provide the most support for the claims he develops in his final chapter. Those transformations reveal continual expansion of the power of the federal judiciary “because of, rather than in spite of political action.” (P. 273.)

The final chapter begins with a reflection on popular and scholarly reactions to President Obama’s castigation of the Supreme Court during the 2010 State of the Union Address for its Citizens United decision and to Justice Alito’s small but unmistakable expression of disagreement. Crowe argues that seemingly divergent reactions—a popular reaction concerned with over-politicization and a scholarly reaction viewing this as just another conflict in a long line—share the common, mistaken presumption “that judicial power is separate from and outside the realm of democratic politics.” (P. 271). According to Crowe, the history of judicial institution building tells a different story, “one that locates the judicial branch squarely within the political arena but also places substantially greater emphasis on its cooperation rather than conflict with those in that arena, most notably federal elected officials.” (P. 272.)

The story that emerges from Crowe’s study of judicial institution building, he argues, “casts doubt on the simplistic and essentially conflictual models of interbranch relations proffered in much extant scholarly literature about judicial politics.” (P. 274.) As a consequence, “the empirical foundations upon which much normative theorizing—both scholarly and popular—about judicial power is based are at best incomplete and at worst outright incorrect.” (P. 277.) Rather than “emphasizing concepts such as Court-curbing and strategic retreats” (P. 275.) , scholars of judicial politics and related fields should pay more attention to phenomena like court creation and jurisdictional expansion. These are strong claims. But their foundational observations about the relationship between the judiciary and democratic politics are supported by the history of institution building that Crowe traces in Building the Judiciary.

Crowe is careful throughout not to adopt a “Whiggish assumption of progress between past and present.” (Pp. 8-9, n.32) Yet the story that he tells, it turns out, is one in which “the trajectory of judicial power in America has been consistently and undeniably upward.” (Id.) Less clear, however, is whether that trajectory can, or ought to, continue. Crowe argues that “the centering of judicial power in a political world should be seen as normatively balanced in a manner that is democratically empowering.” (P. 278.) But he also recognizes that “politicians may lack either or both the will and incentive to restrict judicial power.” (P. 278, n.12.) And he acknowledges that, when the need for changes in the relative independence or accountability of federal courts comes to the fore, “the forces of path dependence may make such changes difficult and thereby lessen the ability of the citizenry to control (or, at the very least, influence) the extent of judicial power in any meaningful sense . . . .” (P. 278 n.13.)

These acknowledgments suggest a stronger cautionary note than the book offers. Crowe appropriately disclaims the argument that “the judicial power is unproblematic because judges are accountable to citizen preferences or responsive to changes in the political climate in any meaningful sense.” (P. 279.) (He says that may or may not be true; it is just not his concern in the book. (Id.)) But he does argue that if “Americans . . . do view increased judicial power as problematic, . . . then we have no one to blame but our elected officials.” (Id.)

Crowe is right—and importantly so—to insist that we point the finger at our elected officials, and ultimately at ourselves (for we are responsible for them). But that does not mean we should let the judges themselves off the hook. One can agree with Crowe that “judicial exceptionalism” is a problem in evaluating judicial power, but still insist on condemning judicial overreach in the exercise of that power—whatever the power’s pedigree in considerations of performance, policy, or politics.

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Cite as: Kevin C. Walsh, Building the Federal Judiciary, JOTWELL (February 11, 2013) (reviewing Justin Crowe, Building the Judiciary: Law, Courts, and the Politics of Institutional Development (Princeton University Press, 2012)),