Reconstruction's Political Court: The History of the Countermajoritarian Difficulty, Part Two

94 Pages Posted: 25 Nov 2002

See all articles by Barry Friedman

Barry Friedman

New York University School of Law


Judicial review operates in an uneasy space between the claimed necessity of judicial independence, and periodic calls for judicial accountability. The question examined in this piece is "what are the boundaries of judicial freedom?" In other words, what determines when the judiciary is able to express its view of what the law demands, unimpeded by popular pressure?

The events of Reconstruction present an opportunity to examine this question, because - unlike the present - during that time the Supreme Court was in almost constant political jeopardy. Its jurisdiction was stripped under political pressure, and its size was changed three times, arguably in response to political events. The Court changed direction on a critical question of the day - the constitutionality of legal tender laws - apparently as a response to nothing but a change in the political constitution of its membership. These events are examined in detail, documenting the Court's reaction to events, and the public's reaction to judicial decisions (or the threat of them).

This piece explains that politics can threaten the judiciary, but can protect it as well. The political salience of matters coming before the judiciary, and a court's own savvy at avoiding trouble, will do much to determine whether a court is brought to heel. But by the same token, the political economy of disciplining a court serves often to protect judicial independence. Perhaps most important, deeper public sentiments about the importance of the rule of law can operate to protect a court, even when the public is dissatisfied with immediate decisions. These are the factors that demarcate the boundaries of judicial independence and accountability.

Suggested Citation

Friedman, Barry, Reconstruction's Political Court: The History of the Countermajoritarian Difficulty, Part Two. Available at SSRN: or

Barry Friedman (Contact Author)

New York University School of Law ( email )

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