The Anti-Partisan Principle
posted by Gerard Magliocca
To return to my posts from last week, I’m working through the idea that there is an unwritten constitutional principle (or, if you do not like that phrase, a powerful norm) holding that changes to the structure of government cannot be undertaken when they would lead to a substantial and foreseeable partisan advantage. This is a logical extension of Federalist #10. Madison argued there that an object of constitutional design was to prevent any one faction from gaining too much power. Sometimes, though, the constitutional design is inadequate. At that point, though, public opinion, elite opinion, and the courts step in to preserve the balance of power.
The first set of precedents expressing this anti-partisan tenet with respect to political parties came in the aftermath of Jefferson’s election in 1800, which marked the first transfer of power from one party to another. Consider one of the famous incidents from that era–the “Midnight Judges” nominated by President John Adams. After the election, the Federalist Congress enacted (and Adams signed) the Judiciary Act of 1801. This Act, among other things, created many new federal judgeships. Adams nominated and the Senate confirmed men for these seats on the eve of Jefferson’s Inaugural.
Today we think that this action was deeply wrong. Why? The Judiciary Act of 1801 was not unconstitutional. Nor was there anything illegal about the subsequent appointments. The “Midnight Judges” are an anti-precedent because they were done by a lame-duck President and Congress for a significant and definite partisan advantage. Why is that important? Because it helps explain why the repeal of the Judiciary Act was constitutional. When scholars look at Stuart v. Laird, the 1803 case that upheld the repeal, it is often seen as an example of the Supreme Court folding in the face of political pressure. Viewed in light of this anti-partisan principle, the Court’s decision was sound. When in doubt, brazen partisan power grabs cannot stand.
Consider another example from this era–the impeachment of Justice Samuel Chase in 1805. The failure of the Senate to convict Chase (a Federalist) is now seen as a precedent establishing that Justices may not impeached for expressing views that are unpopular. Another way of viewing that acquittal, though, is that the impeachment and removal of Justices of one party by the other party is fundamentally wrong because it would allow a party to take advantage of a temporary supermajority in Congress to purge the Court and replace the Justices en masse.
Tomorrow I will take a look at additional examples, as I build toward articulating something about Chief Justice Roberts’s opinion in Sebelius.