I gratefully acknowledge helpful and extensive comments on an earlier draft from John Mark Hansen and Cass Sunstein of the University of Chicago and Rogers Smith and Stephen Carter of Yale University.

1. Horsky, Charles A., “Law Day: Some Reflections on Current Proposals to Curtail the Supreme Court,” Minnesota Law Review 42 (1958): 1105, 1111.Google Scholar

2. U.S. v. Will, 449 US. 200, 218 (1980). To the extent that public opinion is mediated through executive and legislative action, it is subsumed under the definition.

3. Kaufman, Irving R., “The Essence of Judicial Independence,” Columbia Law Review 80 (1980): 671, 691, emphasis addedCrossRefGoogle Scholar.

4. See, for example, Horwitz, Morton J., The Transformation of American Law (Cambridge, MA: Harvard University Press, 1977)Google Scholar; Marshall, Thomas R., Public Opinion and the Supreme Court (Boston: Unwin Hyman, 1989)Google Scholar; Note, “Government Litigation in the Supreme Court: The Roles of the Solicitor General,” Yak Law Journal 78 (1969): 428Google Scholar; Puro, Steven, “The United States as Amicus Curiae,” in Courts, Law, and Judicial Processes, ed. Ulmer, S. Sidney (New York: Free Press, 1981)Google ScholarScigliano, Robert, The Supreme Court and the Presidency (New York: Free Press, 1971)Google Scholar; Shapiro, Martin, “The Supreme Court: From Warren to Burger,” in The New American Political System, ed. King, Anthony (Washington, D.C.: American Enterprise Institute, 1978)Google Scholar; Ulmer, S. Sidney and Willison, David, “The Solicitor General of the United States as Amicus Curiae in the U.S. Supreme Court, 1969–1983 Terms” (Paper presented at the annual meeting of the American Political Science Association, New Orleans, 1985).Google Scholar

5. This is especially the case with electoral realignments. It has been argued that attempts to curb the Court are due to the periodic electoral realignments that sweep the United States. However, since their precise meaning and identity is unclear, and since this claim reduces to one of electoral pressure, it seems more sensible to focus on the broader indicator. Focusing directly on the positions of elected officials includes realigning periods but is not limited to them.

6. In addition, the president could order the army to arrest or detain judges, as was done by President Lincoln. Similarly, presidents, like governors in the 1950s and 1960s over the issue of desegregation, can order governmental institutions to ignore Court orders. But when this stage is reached, there is no constitutional government.

7. Stone, Harlan F., “The Common Law in the United States,” Harvard Law Reviw 50 (1936): 4, 25.CrossRefGoogle Scholar

8. Murphy, Walter F., Congress and the Court (Chicago: University of Chicago Press, 1962), p. 63.Google Scholar

9. See, generally, Comment, “Congress Versus the Court: The Legislative Arsenal,” Villanova Law Review 10 (1965): 347Google Scholar; Culp, Maurice S., “A Survey of the Proposals to Limit or Deny the Power of Judicial Review by the Supreme Court of the United States,” 2 pts. Indiana Law Journal 4 (1929): 387; 474Google Scholar; Elliot, Sheldon D., “Court-Curbing Proposals in Congress,” Notre Dame Lawyer 33 (1958): 597Google Scholar; Halper, Thomas, “Supreme Court Responses to Congressional Threats: Strategy and Tactic,” Drake Law Review 19 (1970): 292.Google Scholar

10. This definition combines parts of several offered by Stumpf, Harry P., “Congressional Responses to Supreme Court Rulings: The Interaction of Law and Politics,” Journal of Public Law 14 (1965): 377, 382Google Scholar. See, also, Eckhoff, Torstein, “Impartiality, Separation of Powers, and Judicial Independence,” Scandinavia Studies in Law 9 (1965): 9, 38.Google Scholar

11. For an extensive compilation of data on recent statutory overrides, see Eskridge, William N. Jr., “Overriding Supreme Court Statutory Interpretation Decisions,” Yale Law Journal 101 (1991): 331.CrossRefGoogle Scholar

12. See, generally, Stumpf, , “Congressional Responses to Supreme Court Rulings” (1965)Google Scholar. There is evidence that members of Congress are aware of the context in which bills are aimed at the Court Schmidhauser et al. studied 147 House and Senate roll call votes from 1945–1968 dealing with Court-Congressional relations. Comparing Court-curbing to simple reversal bills, they found that members of Congress differentiated between the two in their voting patterns (Schmidhauser, John R., Berg, Larry L., and Melone, Albert, “The Impact of Judicial Decisions: New Dimensions in Supreme Court-Congressional Relations, 1945–1968,” 1971 Washington University Law Review, p. 209Google Scholar).

13. Marbury v. Madison, 5 U.S. 49 (1 Cranch 137) (1803). While Chief Justice Marshall did seize the opportunity to assert the power of judicial review, little political attention was paid to it. The focus was on the more immediate Federalist- Republican battle, including the Court's holding that some actions of the executive branch were amenable to judicial oversight. (Mccloskey, Robert G., The American Supreme Court [Chicago: University of Chicago Press, 1960], pp. 44–45).Google Scholar

14. Stuart v. Laird, 5 U.S. 95 (1 Cranch 299) (1803).

15. 60 U.S. (19 How.) 393 (1857).

16. Ex Parte McCardle, 74 U.S. (7 Wall.) 506 (1869).

17. Leuchtenburg, William E., “The Court Packing Crisis of 1937,” News for Teachers of Political Science 45 (1985): 12, 13.Google Scholar

18. The cases include West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)Google Scholar, NLRB v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937)Google Scholar, and Steward Machine Co. v. Davis 301 U.S. 548 (1937).Google Scholar In each case, Justice Roberts supplied the fifth vote, upholding the legislation. The decisions were handed down in March, April, and May of 1937.

19. Steamer, Robert J., The Supreme Court in Crisis: A History of Conflict (Amherst, MA: University of Massachusetts Press, 1971), p. 21.Google Scholar

20. Dodd, Walter, “The United States Supreme Court, 1936–1946,” American Political Science Review 41 (1947): 1, 4, emphasis added.CrossRefGoogle Scholar

21. E.g., Ex Porte Milligan, 71 US. (4 Wall.) 2 (1866), Cummings v. Mo., 71 U.S. (4 WalL) 277 (1867), Ex Parte Garland, 71 US. (4 WalL) 333 (1867).

22. U.S. v. E. C. Knight, 156 US. 1 (1895), Pollockv. Farmers Loan and Trust Co., 157 U.S. 429 (1895), affd on rehearing, 158 U.S. 601 (1895). See, Generally, , Paul, Arnold, Conservative Crisis and the Rule of law (Ithaca: Cornell University Press, 1960).Google Scholar

23. Westin, Alan F., “The Supreme Court, the Populist Movement and the Campaign of 1896,” Journal of Politics 15 (1953): 3, 38.CrossRefGoogle Scholar

24. Engel v. Vitale, 370 U.S. 421 (1962)Google Scholar, Abington School District v. Schempp, 374 U.S. 203 (1963).Google Scholar

25. Baker v. Carr, 369 U.S. 186 (1962)Google Scholar, Wesberry v. Sanders, 376 U.S. 1 (1964)Google Scholar, Reynolds v. Sims, 377 U.S. 203 (1964).Google Scholar

26. Editorial, “Crisis for the Court,” New York Times, 9 August 1965, sec. 4, p. 8.

27. Emanuel Cellar, the Chair of the House Judiciary Committee, called another bill a “vicious attack on the Supreme Court.” Kenworthy, E W., “House Votes Ban on Court Power to Reapportion,” New York Times, 20 08 1964, p. 1.Google Scholar

28. Lewis, Anthony, “Congress vs. The Court—Issue Joined on Redistricting: Decision to Reapportion the State Legislatures Stirs Opposition,” New York Times, 16 08 1964, sec. 4, p. 3.Google Scholar

29. Mccloskey, Robert G., The Modern Supreme Court (Cambridge, MA: Harvard University Press, 1972), p. 359.CrossRefGoogle Scholar

30. There is evidence to suggest that the Court acted during these years to mollify congressional opposition. Every November since 1949, the Harvard Law Review has compiled Supreme Court cases with full opinions involving the government (both state and federal). They show that by 1965, Supreme Court decisions supporting the government had risen 14 percent over the 1963 figure. While the annual number of cases is large, ranging from 70 to over 100, the inclusion of state government, and the variety of issues involved, make this weak evidence. However, it is in the direction supportive of the effectiveness of Court-attacking.

31. While there was a good deal of opposition to the Court's apportionment decisions among officeholders, the public was rather oblivious to the issue.

32. Warren, Charles, “Legislative and Judicial Attacks on the Supreme Court of the United States-A History of the Twenty-Fifth Section of the Judiciary Act,” American Law Review 47 (1913): 1, 165.Google Scholar

33. Mccloskey, , American Supreme Court, p. 59.Google Scholar

34. Beal v. Doe, 423 U.S. 438 (1977), Maher v. Roe, 432 U.S. 464 (1977), Poelker v. Doe, 432 U.S. 519 (1977).

35. Harris v. McRae, 448 U.S. 297 (1980).

36. By 1982, Supreme Court decisions supporting the government rose slightly more than 10% over the period's low point. See supra, note 30, particularly the caveat on interpreting this data.

37. See, generally, Murphy, Congress and the Court.

38. Cases include Pennsylvania v. Nelson, 350 U.S. 497 (1956)-sedition; Schware v. New Mexico, 353 U.S. 232 (1957), Konigsberg v. California, 353 U.S. 252 (1957)-bar exclusions; Jencks v. U.S., 353 U.S. 657 (1957)-access to government files.

39. 354 U.S. 178(1957).

40. 354 U.S. 234 (1957).

41. See, Steamer, Robert J., “Statesmanship or Craftsmanship: Current Conflict over the Supreme Court,” Western Political Quarterly 11 (1958): 265CrossRefGoogle Scholar; Lytle, Clifford M., “Congressional Response to Supreme Court Decisions in the Aftermath of the School Segregation Cases,” Journal of Public Law 12 (1963): 290.Google Scholar

42. For a fascinating account of the bill's history, see Murphy, Congress and the Court.

43. 360 U.S. 72 (1959).

44. 360 U.S. 109 (1959).

45. Breckenridge, Adam, Congress and the Court (Lincoln, NE: University of Nebraska Press, 1970), p. 15.Google Scholar

46. Pritchett, C. Herman, Congress Versus the Supreme Court (Minneapolis, MN: University of Minnesota Press, 1961), p. 49.Google Scholar

47. Cohn, Roy M. and Bolan, Thomas A., ‘The Supreme Court and the A.B. A. Report and Resolutions,” Fordham Law Review 28 (1959): 233, 273.Google Scholar

48. Editorial, “A Regrettable Decision,” New York Times, 2 March 1960, p. 36.

49. Breckenridge, , Congress and the Court; Chase, Harold W., The Warren Court and Congress,” Minnesota Law Review 44 (1960): 595Google Scholar; Berg, Roger Hand and Hill, Harold F., “Court-Curbing, Court Reversals, and Judicial Review: The Supreme Court Versus Congress,” Law and Society Review 14 (1980): 309Google Scholar; Mccloskey, , Modern Supreme Court; Murphy, Congress and the Court; Pritchett, Congress Versus the Supreme Court; Bernard Schwartz, “The Supreme Court-October 1958 Term,” University of Michigan Law Review 58 (1959): 165Google Scholar; Steamer, , Supreme Court in Crisis; Wasby, Stephen L., D' Amato, Anthony A., and Metrailer, Rosemary, Desegregation from Brown to Alexander (Carbondale, IL: Southern Illinois University Press, 1977).Google Scholar

50. 347 U.S. 483 (1954).

51. Pollak, Louis H., “The Supreme Court Under Fire,” Journal of Public Law 6 (1957): 428.Google Scholar

52. Cooper v. Aaron, 358 U.S. 1 (1958).Google Scholar

53. Goss v. Board of Education of Knoxville, 371 U.S. 683 (1963).Google Scholar

54. Southern Education Reporting Service, A Statistical Summary of School Segregation—Desegregation in the Southern and Border States (Nashville, TN: Southern Education Reporting Service, 1967), pp. 40–44.Google Scholar

55. For full development of this argument, see Rosenberg, Gerald N., The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991), chap. 3.Google Scholar

56. Wasby, et al. , Desegration from Brown to Alexander, p. 107.Google Scholar

57. The Court declined to hear any housing cases from 1953 to 1967. Some of its refusals had the effect of upholding segregation (e.g., Cohen v. Public Housing Authority, 358 U.S. 928 [1959]; Barnes v. City of Gadsden, 361 U.S. 915 [1959]). More generally, the refusal to hear Rice v. Sioux City Memorial Park Cemetery, 348 U.S. 88 (1954), after Brown, effectively upheld a cemetery's restrictive covenant limiting burial to Caucasians. In Dawly v. City of Norfolk, Virginia, 359 U.S. 935 (1959), refusal to hear the case left restrooms in a state courthouse segregated. Another denial of certiorari, In re Girard College Trusteeship, 357 U.S. 570 (1958), had the effect of allowing a segregated school administered by the state to remain segregated. And in Nairn v. Naim, 350 U.S. 891 (1955), 350 U.S. 985 (1956), the Court declined to hear an attack on state laws prohibiting inter-racial marriage. While the Court did issue numerous per curiam opinions striking down segregation laws, they were mostly ignored.

58. 354 U.S. 449 (1957).

59. 367 U.S. 643 (1961).

60. 372 U.S. 335 (1963).

61. 384 U.S. 436 (1966).

62. By 1959, decisions supporting the government had risen 14 percent over the lowest figure in the 1955–1959 Court-attack period. See supra, note 30, particularly the caveat on interpreting this data.

63. Cf., Lasser, William, The Limits of Judicial Power: The Supreme Court in American Politics (Chapel Hill, NC: University of North Carolina Press, 1988), p. 262Google Scholar, who argues that the Supreme Court has “always been largely invulnerable to political assault.” However, he never offers a definition of judicial independence, and at times his argument is contradictory.

64. 60 U.S. (19 How.) 393 (1857).