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FEDERALISM, PUBLIC OPINION, AND JUDICIAL AUTHORITY IN COMPARATIVE PERSPECTIVE

Clifford J. Carrubba* 2010 MICH. ST. L. REV. 697 TABLE OF CONTENTS ABSTRACT .................................................................................................. 697 INTRODUCTION ........................................................................................... 698 I. WHY CREATE A COURT? ..................................................................... 699 II. JUDICIAL PERFORMANCE ..................................................................... 707 CONCLUSION .............................................................................................. 712 ABSTRACT Barry Friedman provides a compelling account of how public opinion influences the shape and direction of American Law by influencing the decisions of the Supreme Court of the United States. Barry covers the Court from its inception at the Constitutional Convention through the multiple periods of the Rehnquist Court.1 This relationship between public opinion and judicial decision-making is not limited to the United States. For example, a 2005 work by Georg Vanberg demonstrates that the German Federal Constitutional Court not only pays attention to, but also relies upon the German public to help promote its agenda.2 In this Essay, I use a general theory of judicial influence first developed in the comparative courts context to evaluate the role of the Supreme Court in the 1800s.

* Clifford J. Carrubba is an associate professor of political science at Emory University. Many thanks for helpful comments from Tom Clark, Mike Giles, Jeff Staton, Randy Strahan, Georg Vanberg, and Tom Walker. 1. See generally BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009). 2. See generally GEORG VANBERG, THE POLITICS OF CONSTITUTIONAL REVIEW IN GERMANY (2005).

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What role does the Supreme Court of the United States play in defining and applying the laws of the land? The answer to this question superficially appears quite straightforward. Formally, the Supreme Court is the court and the final arbiter of domestic disputes and questions over the constitutionality of secondary legislation. Only a constitutional amendment, no mean feat to pull off, can overturn a judicial declaration. As such, the de jure powers of the Supreme Court are quite awe-inspiring. Barry Friedmans book, The Will of the People, challenges this perception with a careful and detailed case history of the Supreme Court since its inception. Barry argues that the de jure and de facto roles of the Supreme Court could not be farther apart. While the Supreme Court looks the part of an almost anti-democratic institution on paper, in practice, the Courts ability to promote the application of law contrary to public opinion is highly constrained. Barry not only argues why this should be true in theory but also demonstrates the heavy constraints on the Court throughout its history. Barrys argument is straightforward: The Supreme Court has no powers of enforcement, and it is highly vulnerable to political manipulation if its decisions start to systematically deviate from public opinion.4 Barrys argument raises an intriguing, but only partially answered, question. If the Court is so constrained, what explains the timing and types of policy areas over which the court is able to extend its authority over time? Is it just a coincidence of history, or is there some underlying explanation? In this Essay, I propose an answer that derives from my work on national and international courts.5 This Essay is an attempt to posit a plausible answer that builds off of Barrys insights. In particular, I propose that the Court is both a very important, and a very weak, component of the federal government. The evidence suggests that, for much of its history, the Court
3. The historical data that comprises the evidence in support of the argument in this Essay are drawn from Urofsky & Finkelman, Farber & Sherry, and Friedman where not otherwise noted. See generally MELVIN I. UROFSKY & PAUL FINKELMAN, A MARCH OF LIBERTY: A CONSTITUTIONAL HISTORY OF THE UNITED STATES (2002); DANIEL A. FARBER & SUZANNA SHERRY, A HISTORY OF THE AMERICAN CONSTITUTION (1990); FRIEDMAN, supra note 1. Previous versions of the theoretical argument that inform this Essay have appeared in numerous journals of political science and include Clifford J. Carrubba, Courts and Compliance in International Regulatory Regimes, 67 J. POL. 669 (2005) [hereinafter Carrubba, Courts and Compliance] and Clifford J. Carrubba, A Model of the Endogenous Development of Judicial Institutions in Federal and International Systems, 71 J. POL. 55 (2009) [hereinafter Carrubba, Federal and International Systems]. 4. FRIEDMAN, supra note 1, at 14. 5. See generally Clifford Carrubba & James R. Rogers, National Judicial Power and the Dormant Commerce Clause, 19 J.L. ECON. & ORG. 543 (2003); Carrubba, Courts and Compliance, supra note 3; Carrubba, Federal and International Systems, supra note 3.

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played a critical role in facilitating state compliance with federal regulatory policies, but only over policies in which states faced collective action dilemmas. Where the Court tried to do more, such as with the Dred Scott case, the Court failed. Only after the New Deal do we see the Court start to successfully push a legal agenda beyond this limited domain. In particular, the Court was an active participant in the United States civil rights revolution, and, since then, continues to play an active role in a wide range of federal policy domains. In this Essay, I focus on two parts of this larger story: the decision to create the federal judiciary and a selected history of its jurisprudence through the Gilded Age. This analysis is neither meant to be a test of my argument,6 nor an exhaustive case history. Rather, I see it more as a plausibility probe, which explores to what degree the development of the authority of the Supreme Court of the United States appears consistent with more general arguments about the conditions under which sovereign states will create a court that has the power to declare their actions invalid. In some ways, it is an extension on, and broadening of, work with Jim Rogers.7 I. WHY CREATE A COURT? In 1777, the thirteen colonies were asked to approve a central government created by the Articles of Confederation. The government consisted of a unicameral legislature in which each state delegation (consisting of two to seven delegates) received one vote. Depending upon the subject matter, votes were by majority or supermajority (nine of thirteen) rule and a delegation could only cast a vote if at least two of its members were present. Revision of the Articles required unanimous consent of the member states. As cumbersome as these procedures were, the central governments jurisdiction was even more restrictive. The central government was formally granted control over foreign relations, including the right to wage war and negotiate treaties, but not the power to tax or to regulate domestic affairs in any meaningful way. This system started having problems along three dimensions almost immediately. First, the lack of taxation powers created major revenue shortfalls. The Confederation carried significant debt, both owing unpaid soldiers for their wartime efforts and foreign governments for wartime loans. Without the power to tax, the central government had to rely upon states to voluntarily pay its assessments. While some states did pay, that payment

6. See generally Carruba & Rogers, supra note 5; Carrubba, Courts and Compliance, supra note 3; Carrubba, Federal and International Systems, supra note 3. 7. See Carrubba & Rogers, supra note 5.

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was far from consistent and the national debt more than doubled to $28 million.8 Second, the inability to regulate interstate or international trade led to beggar thy neighbor strategies across the colonies. For example, northern ports taxed foreign imports to earn state revenue, resulting in higher prices for consumers in other states. Conversely, southern states that lacked a domestic shipping industry taxed exports lightly to encourage British ships to transport their goods directly to foreign markets. This strategy denied the northern shipping interests of business. A lack of coordination in foreign trade also arose with interstate trade. While interstate trade was exempted from foreign duties, states still taxed goods when they crossed borders, as well as charged different navigation fees depending on the home state of the ship.9 Finally, the rigidity of the Articles exacerbated both of these problems by making it almost impossible for the national government to react. When Robert Morris attempted to revise the Articles so that the central government could charge a 5% impost duty payable directly to its coffers, the sole veto of Rhode Island was enough to prevent the revision from happening. Similarly, a proposal to amend the Articles to allow Congress to impose uniform navigation acts was defeated when Rhode Island and North Carolina vetoed the proposal.10 The nations failure to address these problems led to the nationwide recession of 1785-1786. Economies shrank, states started printing money to try to deal with budget shortfalls, inflation gained momentum, and unrest, such as Shays rebellion, grew. In response, increasing efforts were made to address some of the root causes of the recession. Pennsylvania unilaterally lowered a number of its discriminatory tariffs in 1785. Also, in 1785, Maryland and Virginia agreed to the Mount Vernon Compact, a commitment to not charge fees when ones ships used the others waterways. And, most aggressively, in 1786 the Virginia legislature called for a national convention on the Confederations overall commercial problems.11 In the end, only five states showed up and the Annapolis Convention ended with no substantive action taken.12 It did, however, end with a second call for a Confederation-wide convention that linked the need for revision of commercial policy with revision of the structure of government.
[T]hat the power of regulating trade is of such comprehensive extent, and will enter so far into the general System of the federal government, that to give it efficacy, 8. 3, at 80-82. 9. 10. 11. 12. FARBER & SHERRY, supra note 3, at 27-31; UROFSKY & FINKELMAN, supra note FARBER & SHERRY, supra note 3, at 29-30. UROFSKY & FINKELMAN, supra note 3, at 84-85. Id. at 88-91. UROFSKY & FINKELMAN, supra note 3, at 90-91.

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and to obviate questions and doubts concerning its precise nature and limits, may require a correspondent adjustment of other parts of the Federal System.13

In the wake of the recession and its concurrent effects, as well as the false start of the Annapolis Convention, in 1787 the Continental Congress seconded the call for a constitutional convention. This decision by Congress was not unanimous. The Virginia legislature initiated the call, and by February 1787, New Jersey, Pennsylvania, North Carolina, New Hampshire, Delaware, and Georgia signed on. However, with these seven states, Congress agreed that it was time for a constitutional convention. Debates in the constitutional convention revolved around questions of institutional design and policy competencies. In terms of institutional design, two dimensions loomed large, geographic representation and slavery. Unsurprisingly, small states wanted representation by state while bigger states wanted representation by population. The plan known as the Connecticut Compromise, authored by Roger Sherman on June 11, 1787, resolved the conflict by having one House selected by each mechanism. Also unsurprisingly, the South wanted representation by population to include counting slaves as well. In the end, a slave counted as three-fifths of a person for purposes of allocating seats in the House. While these two themes occupied the majority of the time during the convention, for the purposes of this Essay, the bigger issues revolved around deciding what policy competencies to allocate to the national government. Many of the obvious flaws of the Articles of Confederation were identified and addressed by broad consensus, including the national governments need to be able to collect taxes, to establish and regulate currency, to support a standing army, and to have sole jurisdiction over foreign affairs. Relatedly, state governments no longer had the right to make treaties, issue tariffs on export duties, issue money, or abrogate contracts.14 Establishing a national commercial regulatory regime was more contentious. In particular, the South was reticent to agree to national regulation of commerce because of sectional concerns. The first of these concerns centered on economic interests. The South was a net exporter of agricultural goods and a net importer of manufactures. Southerners were concerned that, if given the opportunity, the North would use the central government to support its interests over the Souths, such as raising export taxes to fund the central government. The second of these concerns was the issue of the slave trade. Again, the South was concerned that the forces opposed to slavery might use the central governments ability to regulate trade to restrict or eliminate the slave trade. A deal was eventually struck between New
13. Proceedings of Commissioners to Remedy Defects of the Federal Government, The Annapolis Convention, Sept. 14, 1786, available at http://avalon.law.yale.edu/ 18th_century/annapoli.asp#1. 14. UROFSKY & FINKELMAN, supra note 3, at 102-03.

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England and the South that allowed the central government to regulate trade, but denied the central government the right to tax exports or regulate the slave trade. As stated in Article I, Sec. 8 of the Constitution: the commerce clause granted Congress the right [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.15 The final part of the story that is important to highlight here was the establishment of the federal judicial system. The agreement at the constitutional convention was limited. While there was a decision to create a Supreme Court, and an agreement to allow for the possibility of lower federal courts, the actual powers of the courts were left vague. The Constitution clearly established that the Constitution, federal law, and international treaties were meant to be supreme over state law, and that federal courts were expected to enforce this scheme, but the only explicit statement of judicial power was that [t]he judicial Power shall extend to all Cases . . . under this Constitution, the Laws of the United States, and Treaties made . . . under their Authority.16 The Judiciary Act of 1789 resolved two of the outstanding issues. District courts were created for each state, and, in section 25, the federal judiciary was explicitly granted the right to strike down state laws that were in contravention of treaties, the Constitution, or national statute. Judicial review of federal law was not addressed. What explains the decision of the founders to reform and significantly expand the powers of the central government? Why did they decide to create a federal judiciary, and why did they explicitly confirm its authority to rule state action invalid with the Judiciary Act? And finally, what explains all of the powers the Founders did not provide to the central government and its judiciary, such as federal judicial review? In a series of articles, I argue for a simple underlying logicsovereign states have the strongest incentive to create a common regulatory regime when the policies they wish to enact entail a collective action dilemma.17 By this I mean that the state governments recognize the benefits of following a particular policy if the other states are also following that policy, but that they also have incentives to defect from the policy despite the mutual benefits to be gained from uniform compliance. The prisoner dilemma is the classic example of this type of collective action problem. Two individuals have been arrested for a crime and placed in separate rooms by the police. Each is told that they are going to jail if neither one rats out the other. However, if one is willing to rat on the other, then the rat will go free and the other prisoner will do the full time. If both prisoners rat on each other, then they still both go to jail and actually serve
15. U.S. CONST. art. I, 8, cl. 3. 16. U.S. CONST. art. III, 2, cl. 1. 17. See generally Carruba & Rogers, supra note 5; Carrubba, Courts and Compliance, supra note 3; Carrubba, Federal and International Systems, supra note 3.

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longer sentences than if they both stay silent. Each prisoner most prefers to go free, next most prefers the shorter, shared prison sentence, next most prefers the longer, shared prison sentence, and least prefers to serve the whole time. The expected result is that they will each rat out the other. Why? Independent of what the other prisoner does, it is a dominant strategy to rat; if the other prisoner is going to say nothing, by ratting you go free rather than serve partial time, while if the other prisoner is ratting on you, you serve a shorter sentence than if you keep your mouth shut. Notice that this is a Pareto inferior outcome, meaning that both prisoners are worse off than if they both kept their mouths shut. Sovereign governments have the strongest incentives to create a common regulatory regime over policies that induce these sorts of collective action dilemmas, and that seems to be what happened in the context of the United States. Two examples will suffice. Consider first fiscal and monetary policy. All of the states benefit from a sound economy (e.g. economic growth and low inflation). However, by not allowing the central government to collect taxes or establish a single national currency, collective action dilemmas undermined the governments ability to achieve this goal. As described above, the states had the incentive to, and did, refuse to pay assessments meant to fund the central governments coffers. Then, as the national debt grew, the value of the Continental Congresss paper money shrank and the bonds it issued depreciated. The result was a national shortage of cash, pressure on the states to print their own money, inflation, and recession. The decision at the constitutional convention to allow the central government to collect revenue and impose a single, national currency specifically was intended to address these collective action problems.18 Similarly, this strategic dilemma also holds for interstate trade policy. As described in Carrubba and Rogers, the states recognized that they would be uniformly better off under a free trade regime than one in which everyone imposes trade barriers.19 However, a free trade regime is one in which a state government does nothing to protect its import-competing sectors in exchange for its exporters having easier access to the other states markets. Thus, each government has an incentive to unilaterally raise trade barriers in an effort to protect its import-competing firms, while hoping that the other states are not doing the same. Again, we see that the Articles of Confederation failed to resolve this collective action dilemma, and the constitutional convention placed this policy competence into the hands of the federal government in an effort to resolve the problem. Important to this story, simply passing the policy competence up to the national government is not sufficient to resolve the collective action dilem18. See, e.g., DAVID BRIAN ROBERTSON, THE CONSTITUTION DESTINY 17-62 (2005). 19. See generally Carrubba & Rogers, supra note 5.
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mas. To see why, consider the prisoners dilemma example again. If this game is played only once, there is no way out of the dilemma, even with an explicit statement on the part of both prisoners not to defect, defection is still a dominant strategy. Thus, when state governments agree on a Constitution that says the federal government has the sole power to regulate trade, it does not mean that the states physically cannot regulate trade in response to pressure from their import-competing sectors. It is only a written commitment not to do so. So what can resolve the dilemma? Again returning to the stylized example, if the prisoners play the prisoners dilemma game repeatedly, coordinating silence is a possibility. The logic is simple. Each prisoner can engage in the following threat: I will keep silent every time we are arrested if you will as well; however, if I keep silent and you rat on me, I will not keep silent in the future. This threat changes the strategic dynamic of the game because it induces a longrun/short-run trade-off. If I rat on you, I gain the short-run benefit of staying out of jail, but I cost myself the long-run benefit of you keeping silent about my criminal activities in the future. As long as each of the prisoners values the long-run benefit of cooperation highly enough, they will forgo the short-run benefit of ratting today and Pareto-improving cooperation between the prisoners is sustainable. Passing control over fiscal, monetary, and trade policy to the federal government can be understood as a written commitment to play the cooperative strategy on these policies and that noncompliance with the regimes rules can be punished through whatever mechanisms are available, such as retaliation in this case. If this narrative explains the decision to create the federal government and the particular regulatory regime it was empowered to control, what explains the decision to create the federal judiciary? The obvious answer is that it was created to ensure compliance, particularly state government compliance, with the national regulatory regime. This interpretation is consistent both with what came out of the constitutional convention and the Judiciary Act. However, this answer cannot be sufficient. The judiciary has no direct power of enforcement. For example, once the Supreme Court declares that the Virginia government unduly burdened trade, its job is done. If Virginia was willing to ignore the federal governments sole authority to regulate trade, it can equally well ignore the Courts ruling. Further, if the decision to centralize trade policy was an implicit agreement to enforce compliance through threats of retaliation, why would there be a need for a Court in the first place? The federal government could presumably monitor compliance and dish out punishment itself without need of a judiciary.

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In a series of articles, I propose that the Court plays a critical role by acting as a fire alarm and information clearinghouse.20 In a dense regulatory network, monitoring compliance with the regimes rules can require a potentially enormous investment of resources. For example, suppose Virginia decides to directly monitor other states compliance with the Constitution. This monitoring might be fairly easy with regards to printing currency. Virginia merely has to notice that Rhode Island is printing money and trying to get Virginia merchants to accept the specie. It is not so simple with regards to trade, because there are so many ways to burden trade. States can impose tariffs on imports, an easy behavior to monitor directly, provide subsidies to the import competing firm, harder to observe without time and effort, or impose regulations that end up favoring domestic firms over the importers, harder still to monitor. Further, Virginia has to monitor this behavior with regards to all trade activity of all states continuously over time. Such monitoring could of course be done, but it would require a significant investment in government resources. Establishing a judiciary can be an efficient alternative solution to the states monitoring challenges. To see how, suppose Maryland engages in some form of discriminatory behavior over Virginian beer. The beer producer being directly harmed by Maryland policy has every incentive to bring a case in federal court. This is what is meant by a fire alarm system. In the process of bringing the case, the private litigant automatically advertises the possibility that Maryland is engaging in discriminatory practice. Not only does this draw Virginias attention to a possible instance of noncompliance, but it also saves Virginia time from having to watch all the other ways Maryland might have been violating the regulatory regime. If no one is complaining, by bringing a case to court, Virginia can ignore it. While important, this is only half the story. The governments still need to identify if the claimed violation should be punished. The court facilitates answering this question by acting as an information clearinghouse. Once a case has been brought, the litigants argue their cases, third parties have the opportunity to file amicus briefs, and information about the case in general is disseminated among the vested interests. This information is important in two regards. Most obviously, this information helps clarify whether the state has really violated national law. If the state has not violated the regulatory rules, the state most likely will be off the hook. However, if the state has violated the rules, that does not necessarily mean it is going to lose the case and come into compliance. Why? State governments do not necessarily want the national regulatory regimes rules followed without exception. Any given application of the regulatory regimes rules is
20. See generally Carrubba & Rogers, supra note 5; Carrubba, Courts and Compliance, supra note 3; Carrubba, Federal and International Systems, supra note 3.

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going to have varying costs to the state expected to comply and benefits to the state looking for compliance. When the benefits of an instance of compliance exceed the costs, we can call that an instance of mutually beneficial compliance. It is not mutually beneficial because both states benefit from that instance of compliance, but rather because both states are ultimately better off under a regime in which every state complies whenever the benefits of compliance exceed the costs (assuming, of course, these situations arise frequently enough in expectation). When the benefits of compliance are less than the costs, we would call this an instance of mutually costly compliance. Everyone is worse off in expectation if everyone complies under these circumstances. Thus, the states want selective compliance with the regulatory regimes rules, compliance when it is mutually beneficial, but not otherwise. Hearing the case facilitates selective compliance because, whether directly in the argument of the case or indirectly through back channel communications, vested interests are also going to learn about how costly compliance would be. This cost can be a function of a variety of factors, including the economic cost of compliance to state interests or the political costs of compliance to the state government. While this sort of calculation may appear unlawlike on the surface, in fact it is anything but that. Just as one example, the Pike balancing test, specifically formalized the Courts longstanding practice of weighing the costs and benefits of state legislation that burdens trade:
Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Occasionally the Court has candidly undertaken a balancing approach in resolving these issues, but more frequently it has spoken in terms of direct and indirect effects and burdens.21

Using the information gleaned through the process of hearing the case, state governments can target the threat of punishment. If the state has violated national law, and the state has not come back into compliance by complying with an adverse ruling by the court, the state is going to be punished. Under this punishment strategy, the federal court then has the ability to rule against state governments and get compliance when the cost of compliance is low. The federal court can do so over policies in which the state governments have agreed that there is a collective action problem and
21. Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) (citations omitted).

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that they wish to resolve by passing those laws up to the national level. However, it cannot rule against state governments and get compliance when its decisions are otherwise. Thus, the influence of a court in this system is very selective. It can facilitate compliance with a common regulatory regime that the state governments wish to see followed, but it can do so only to the degree that the state governments want it followed. The Court cannot push law beyond this point, and it certainly cannot get state government compliance with its rulings when these conditions are not met. II. JUDICIAL PERFORMANCE If this argument is correct, one should observe a variety of implications. The Court should be active in trying to resolve inter-state collective action problems, the Court should be limited in how severe a cost it may impose on a state with its decisions, and the Court should fail to assert its authority in cases that did not entail collective action problems. The following discussion relies upon Barrys examination of the case history of the Supreme Court from its founding through the Gilded Age.22 Prior to the onset of the Civil War, the Supreme Court was engaged in two battles: a battle over its authority to declare state action invalid and a battle over its authority to rule federal action invalid. For ease of exposition, I start with the federal challenge first. Anyone familiar with the history of the Supreme Court is familiar with the two great foundational cases of federal judicial review, Marbury v. Madison23 and Stuart v. Laird.24 In 1800, the Federalists were defeated soundly by Thomas Jefferson and his anti-federalist Republicans. Fearful of what the Republicans would do, the outgoing Adams administration and Federalist Congress passed the Judiciary Act of 1801. In this Act, the Federalists created numerous new circuit court judgeships and appointed a host of Federalists to those posts. The Republicans responded quickly by passing the Repeal Act of 1802, an act that repealed the Judiciary Act and thereby cancelled all of the Federalist appointments. The two cases arose from this battle. In Marbury v. Madison, Marbury challenged Madisons refusal to deliver his circuit court appointment,25 while in Stuart v. Laird the constitutionality of the Repeal Act of 1802 was challenged.26 These cases are famous for Marshalls crafting of the opinions. In Marbury, Marshall declared that Marburys appointment had been properly made, that federal officials could be taken to court for violations of legal rights, and that federal courts
22. 23. 24. 25. 26. FRIEDMAN, supra note 1, at 19-166. 5 U.S. (1 Cranch) 137 (1803). 5 U.S. (1 Cranch) 299 (1803). Marbury, 5 U.S. (1 Cranch) at 138. Stewart, 5 U.S. (1 Cranch) at 299.

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had the power of federal judicial review, but, while all of these points supported a ruling in favor of Marbury, the Court lacked jurisdiction and dismissed his action.27 With the establishment of federal judicial review in Marbury, Marshall then found that there was no problem with the constitutionality of the Repeal Act.28 These opinions were seen as politically, if not legally, brilliant; Marshall provided a firm precedent for federal judicial review without actually ruling against the federal authorities and thereby avoiding any risk of the federal government ignoring the Courts decisions. Whether or not these opinions were foundational for future federal judicial review, the salient fact here is that the Court did not rule against the federal government. This decision is consistent with my argument. The federal governments actions resolved no collective action dilemma for the states. Therefore, there would be no reason to expect the states to sanction federal noncompliance with the Courts rulings, and the Court could not expect Jefferson to obey an adverse ruling. Recognizing its inability to get compliance, the Court bided its time and ruled in favor of the Republicans. Now compare this outcome to judicial efforts to assert authority over state behavior in the early 1800s. In Chisholm v. Georgia (1793),29 Martin v. Hunters Lessee (1816),30 McCulloch v. Maryland (1819),31 Cohens v. Virginia (1821),32 Gibbons v. Ogden (1824),33 New Jersey v. Wilson (1812),34 United States v. Peters (1809),35 Green v. Biddle (1823),36 and Worchester v. Georgia (1832),37 the Supreme Court asserted the right of federal judicial review over the actions of state legislatures and state courts. These decisions met with varying levels of success. In Gibbons v. Ogden, the Court was asked to determine the validity of a steamboat monopoly granted to an in-state interest.38 This monopoly clearly violated the commerce clause, placing a blanket restriction on the right of outside interests to compete to provide a service. The Court struck down the monopoly right and the decision was followed. Compliance with this decision makes intuitive sense; the monopoly right issue fits cleanly within this collective action dilemma framework, and given the concentrated costs of compliance (only Ogden
27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. Marbury, 5 U.S. (1 Cranch) at 146-80. Stuart, 5 U.S. (1 Cranch) at 299. 2 U.S. (2 Dall.) 419 (1793). 14 U.S. (1 Wheat.) 304 (1816). 17 U.S. (4 Wheat.) 316 (1819). 19 U.S. (6 Wheat.) 264 (1821). 22 U.S. (9 Wheat.) 1 (1824). 11 U.S. (7 Cranch) 164 (1813). 9 U.S. (5 Cranch) 115 (1809). 21 U.S. (8 Wheat.) 1 (1823). 31 U.S. (6 Pet.) 515 (1832). 22 U.S. (9 Wheat.) at 1-2.

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suffers), it is unlikely the costs of compliance for the state government were high. Contrast this result with McCulloch v. Maryland.39 In McCulloch, Maryland had imposed targeted taxes on in-state branches of the National Bank.40 Fundamental to this case was the question of whether the federal government had the right to charter a national bank or not. Summarizing a long history briefly, there was real division at all levels as to whether a national bank was important to the economic health of the nation. Those who believed it was felt that the added competition to state bankssomething any state government would have to work to justify supporting to their local banking interestsas worth the cost, but only if the bank could successfully operate at a national level. In deciding in favor of the bank and against the local taxes, which were designed to drive the national bank branches out of business, the Court was deciding against particularized state interest and in favor of a perceived collective benefit. While Maryland complied with the decision, Ohio refused to recognize the precedent and imposed its own taxes on instate national bank branches. Only four years later, when Ohio lost the case, the banking controversy had quieted, and potentially the political cost of compliance for the Ohio government lessened, did Ohio come into compliance. Finally, there were cases at the opposite end of the scale, cases in which the Court ruled against states and the states outright defied the court, including Martin v. Hunters Lessee (1816),41 New Jersey v. Wilson (1812),42 United States v. Peters (1809),43 Green v. Biddle (1823),44 and Worchester v. Georgia (1832).45 For the purposes of illustration, I focus on three of these cases. First, consider New Jersey and Worchester.46 In neither of these cases did the states face an evident collective action dilemma. In New Jersey, the Court ruled that the state had illegally ended a tax exemption on Indian lands; while in Worchester, the Court ruled that a requirement to obtain a license to live on Cherokee lands was invalid. With no obvious collective action benefit from enforcing the Court decisions, the states had little to fear from ignoring the decision. Last, consider Green.47 When Kentucky became a state, it made an agreement with Virginia that any Virginian landholders would retain their title on all Virginia land ceded to Kentucky. Subsequent to this agreement,
39. 40. 41. 42. 43. 44. 45. 46. 47. McCullough v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). Id. at 317-22. 14 U.S. (1 Wheat.) 304 (1816). 11 U.S. (7 Cranch) 164 (1813). 9 U.S. (5 Cranch) 115 (1809). 21 U.S. (8 Wheat.) 1 (1823). 31 U.S. (6 Pet.) 515 (1832). 11 U.S. (7 Cranch) 164; 31 U.S. (6 Pet.) 515. 21 U.S. (8 Wheat.) 1.

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Kentuckians started squatting on Virginian land and making improvements. The Kentucky government then passed occupying claimant laws that required Virginians to pay the squatters the value of the improvements, seeking to remove the squatters from the Virginians lands. In deciding Green, the Court invalidated the Kentucky law and initially Kentucky state courts issued rulings consistent with the Supreme Courts decision. However, the decision was deeply unpopular in Kentucky and, in response to these decisions, a Relief party emerged, won office, reconstituted the Kentucky Court of Appeals, and started getting the occupying claimant laws applied again in state court. While obviously a complicated political situation with more than just these particular laws at stake, this case seems pretty clearly to fall into the camp of a high cost compliance situation for the Kentucky state government. So high cost, in fact, that the Kentucky government actually was replaced with a party specifically intent upon noncompliance. Thus, while there obviously are collective action issues implicated in any contractual law conflict, it appears that the Court incorrectly assessed, or did not care, that the enforcement was going to be deeply problematic. While this discussion is far from a full and thorough treatment of all the important cases pre-Civil War, it does suggest that where the Court had success ruling against government actions it was because they were state government actions in which a plausible case for a collective action dilemma could be made. And, further, where the costs of compliance were higher, compliance was problematic. The period leading up to the Civil War and through Reconstruction is acknowledged as a particular low point for the Court. Famously, with Dred Scott v. Sandford (1857), the Court weighed into the slavery issue.48 Slavery divided the country like no other issue. With the westward expansion of the country, efforts to keep the fragile balance between the pro-slavery and anti-slavery states became increasingly tenuous. With tensions rising, Dred Scott, a slave, sued for freedom while in Missouri. Scott argued that his freedom should be granted because his owner had taken him to Illinois and the northern territory, which were designated as free lands by the Missouri Compromise. After a number of appeals, the case eventually reached the Supreme Court. The Court declared both that Scott had no standing in federal court and that the Missouri Compromise was unconstitutional.49 Barrys discussion of this case goes into far greater detail, however, for my purposes, the main point is that the Court failed to resolve this issue in any meaningful way. The tensions that led to the case eventually led to the Civil War and an eventual reversal of the decision. This failure to successfully navigate the tension between the North and South comes as no surprise.
48. 49. 60 U.S. (19 How.) 393 (1856). Id. at 395.

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There is no decision the Court could have made that would have resolved the fundamental tension because in this issue there was no collective action problem, only winners and losers. As Barry points out, the decisions of the Court and the treatment of those decisions changed during the Civil War and Reconstruction.50 First, while Lincoln rode roughshod over the Court during the war, he did take care to attempt to couch the decisions to suspend habeas corpus rights, for example, in legalistic language. Second, throughout Reconstruction, explicit calls for noncompliance transformed into calls for legislative overrides and constitutional amendments. However, the outcome was the same. The winners of the war wanted to use military tribunals and military law against the South. In ex parte Milligan51 the use of military tribunals was challenged, while in ex parte McCardle52 military rule over the South was challenged. For Milligan, the Court actually ruled in favor of the plaintiff and declared that military tribunals could not be used in a state belonging to the union that had a functioning civil court. This decision, along with Dred Scott, was overridden by passage of the Fourteenth Amendment and subsequent legislation that imposed military rule upon the South. For McCardle, the Court procrastinated on hearing the case until Congress passed a bill stripping the Court of jurisdiction to hear the case. In sum, it should come as no surprise that the Court had little ability to rein in federal government behavior. The North was fighting a war and imposing a peace. There was no collective action dilemma, no incentive for the northern states to accept anything less than whatever terms they wanted to impose upon the southern states. Thus, there were no grounds upon which the Court could successfully assert its authority over the collective interests of the northern states as represented in Congress. Interestingly, the opposite dynamic held for the Courts treatment of the Fourteenth and Fifteenth Amendments and the Civil Rights Act of 1866. Here, Congress specifically tried to protect the rights of the newly freed slaves, but in case after case, the Court struck down Congresss efforts. In the Slaughterhouse Cases (1873), the Court so narrowly construed the rights of a nationalas opposed to statecitizen that it effectively defined away the reach of the Fourteenth Amendments Privileges or Immunities Clause.53 In United States v. Cruikshank54 and United States v. Reese,55 the Court applied similarly narrow readings of the rights that the Fifteenth Amendment

50. 51. 52. 53. 54. 55.

FRIEDMAN, supra note 1, at 105-36. 71 U.S. (4 Wall.) 2 (1866). 74 U.S. (7 Wall.) 506 (1868). 83 U.S. (16 Wall.) 36 (1872). 92 U.S. 542 (1875). 92 U.S. 214 (1875).

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could protect, and, in the Civil Rights Cases,56 the Court struck down the Civil Rights Act of 1875. All of these decisions effectively stripped Congress of the ability to protect blacks rights. Based upon Barrys argument, these decisions are not a mystery. The political will of the North to try to enforce these provisions and protect minority rights had dwindled by the time the cases were decided. Without that potential sanction, there was no way for the Court to be able to enforce these rights and get the southern states to comply. Thus, again, even if the Court had applied an aggressive reading of rights into these decisions, the outcome would have been the same. This result is consistent with the argument I am putting forward. It was not until the Gilded Age that the Court was again able to systematically assert its authority. Here the Court was confronted with the issue of regulating the railroads. As Barry Friedman documents, while an effective system supporting inter-state commerce required a cheap way of getting goods across the country, individual states had strong incentives to apply taxes and other burdens onto the railroads, as well as repudiate state debt. Thus, the Court was once again on strong ground. By ruling against state actions that burdened the railroadsor undermined the incentive for private actors to invest in railroad construction, the Court was helping to resolve a critical inter-state collective action problem. With the anti-Granger rulings such as Wabash, St. Louis and Pacific Railway Co. v. Illinois (1886),57 Chicago, Milwaukee & St. Paul Railway Co. v. Minnesota (1890),58 and Gelpcke v. City of Dubuque (1863)59 the Court did just that. In sum, it seems clear that much of the focus and successes of the Supreme Court through the 1800s were in helping resolve inter-state collective action problems. During this period such problems consisted in damping down state efforts to regulate economic activity. Where the Court tried to influence behavior outside of this realm, such as with the slavery issue and Indian rights, the Court had a notable lack of success. CONCLUSION So how does this analysis fit into Barrys work? According to Barrys argument, public opinion set meaningful constraints on how the Supreme Court could rule and thereby how the Supreme Court could, in any systematic way, influence the contours of American law. In this Essay, I suggest that we can also get purchase on what we expect public opinion to support. In particular, state electorates appointed public officials who recognized, after the failures of the Articles of Confederation, the benefits of a central
56. 57. 58. 59. 109 U.S. 3 (1883). 118 U.S. 557 (1886). 134 U.S. 418 (1890). 68 U.S. (1 Wall.) 175 (1863).

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government with the capacity to facilitate the creation and enforcement of a common regulatory regime designed to resolve collective action problems among the states. Where the Supreme Court made rulings that were clearly consistent with these goals, such as in Ogden or the Granger cases, the decisions were obeyed. Where the Supreme Court made decisions that did not fit within this framework, such as with regards to state policy towards Native Americans or its Civil War and Reconstruction rulings, compliance was problematic. Thus, I see my arguments as complementary with Barry Friedmans to the degree that public opinion and state government preferences went hand-in-hand. This relationship is particularly well exemplified by Green, a case where state public opinion went so far against the Supreme Courts ruling that a party specifically intent upon countering the Supreme Courts decision was, implicitly, voted into power. This discussion still leaves much on the table. First, it says nothing about why problematic policies, such as regulation of Native Americans, were passed into the hands of the federal government at the constitutional convention. That decision, in many ways, appears to have set the Court up to fail and certainly seems inconsistent with my argument. Second, it says nothing about how the Courts jurisdiction and influence changed after the Gilded Age. For example, what explains the Courts evolving role in the civil rights revolution of the mid-1900s? Finally, it says nothing about how an evolving understanding of the proper role of the Court comes about. We first see the possibility of effective federal judicial review emerge during Reconstruction, followed by more battles over it with New Deal legislation, and now today it is de facto an uncontested power. Why does public opinion come to support this change, among others? These last two points are not necessarily inconsistent with my argument, though at a minimum they require some added machinery.60 To conclude, I return to where I started this Essay, with work on international and comparative courts. Many of the ideas proposed here first arose from research on the European Court of Justice (ECJ). While this Essay is not the place to do a full comparison, a quick discussion poses some intriguing questions. In 1959, six European states created the European Economic Community (EEC). These statesFrance, Germany, Italy, Belgium, Luxembourg, and the Netherlandshad been through two world wars and felt that developing closer political and economic ties was critical towards ensuring that there would not be a third one. As famously stated, however, Europe would not be built in a day. Rather, through an approach of incremental policy building, closer ties would inevitably lead toward a closer Union. The centerpiece of this approach was the creation of a Common Market. As
60. Carrubba, Federal and International Systems, supra note 3, at 55-69.

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with the founding of the United States (US), the EEC recognized that there would be mutual gains from the elimination of tariff and non-tariff barriers to trade among the member states, as well as the creation of a common external tariff. However, also as with the US, the EEC recognized that member states had incentives to defect from this regulatory regime. As such, they created the European Commission, European Parliament, and European Council of Ministers to propose, enact, and implement the laws necessary to create this common market. The EEC also created the ECJ to rule on possible violations of this regimes rules. Unlike in the U.S. case, the ability of the ECJ to rule acts of the EEC invalid was never in question. The preliminary ruling system was designed by the member states to do exactly that. In particular, private litigants could use national courts to challenge EEC law that they felt violated their rights. The national court could then decide to ask for an interpretation of EU law from the ECJ, which it would then use in making a final ruling. Mechanisms were also set up to challenge member state government compliance with EEC law. In particular, either member states or the Commission could bring a case directly to the ECJ, arguing that the member state was in violation of EEC law. Eventually, the preliminary ruling system was transformed into one that also allowed private litigants to challenge that their rights under EEC law were being violated as well.61 Other than private litigants ability to challenge EEC law being immediately available, the EEC system and resultant behavior look remarkably similar to the U.S. in the 1800s. In other work, I argue that there is good reasonthe same reason as hereto believe that the ECJ had to worry about compliance with its rulings and that it can only anticipate compliance if it anticipates the threat of sanctions from other member statessuch as if its rulings are not followed.62 Evidence consistent with this argument is found upon analyzing all cases decided by the ECJ from 1990 to 1995.63 What all of this together suggests is that Courts, whether they are international or domestic, face similar challenges. Asserting authority over sovereign government behavior is no trivial task, no matter what the laws on paper say. At least initially, these courts can help facilitate compliance with a regulatory regime in ways consistent with the preferences of those constituent governments, but no more. The challenge then comes in with the
61. Geoffrey Garrett & Barry R. Weingast, Ideas, Interests, and Institutions: Constructing the European Communitys Internal Market, in IDEAS AND FOREIGN POLICY: BELIEFS, INSTITUTIONS, AND POLITICAL CHANGE 173-206 (Judith Goldstein & Robert O. Keohane eds., 1993); see also KAREN J. ALTER, ESTABLISHING THE SUPREMACY OF EUROPEAN LAW (2001). 62. Carrubba, Courts and Compliance, supra note 3. 63. See Clifford J. Carrubba, Matthew Gabel, & Charles Hankla, Judicial Behavior Under Political Constraints: Evidence from the European Court of Justice, 102 AM. POL. SCI. REV. 435 (2008).

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Courts efforts to accrue the kind of legitimacy necessary such that they can start to act independent of those government preferences. As Barrys argument suggests, this can happen if public opinion is strong enough in one direction that the Court can use it as political cover, but that only happens if public opinion is also contrary to the preferences of the governments. Otherwise, as I argue in my 2009 article, A Model of the Endogenous Development of Judicial Institutions in Federal and International Systems, more must be true.64

64.

Carrubba, Federal and International Systems, supra note 3.