Many people assume that federal judges in our country have a lot of power—and, relatedly, a lot of independence. After all, the Supreme Court once directed President Nixon to turn over tapes of White House conversations—a decision that led directly to the President’s political downfall. Federal judges have also in recent years blocked presidential actions related to immigration, vaccine mandates, access to abortion medication, and more. With life tenure, and the power to rule on controversial issues, federal judges in our system seem to reign supreme.

But this story masks the fragility of judicial independence. For much of our history, federal courts—including the Supreme Court—would not have dreamed of taking on a president.  That is because the position of the federal judiciary has often been quite tenuous, particularly during moments of political turmoil.

Consider our early history. The election of 1800 was deeply divisive, with both John Adams’ Federalists and Thomas Jefferson’s Democratic Republicans arguing that a victory by the competing political party would be dangerous for the country. Soon the federal judiciary became a pawn in this partisan battle. After Jefferson’s party won both the presidency and Congress (but before they took power), the outgoing Federalists enacted a sweeping reform of the judiciary. They created sixteen new Article III judgeships (nearly doubling the size of the judiciary), so that the Federalists could install like-minded judges. But the Democratic Republicans did not take kindly to this maneuver. Once in power, they repealed the reform and thereby fired the new crop of Article III judges—despite the constitutional language protecting judicial tenure during “good Behaviour.” Some political actors also advocated impeaching and removing additional judges for “bad” decisions.

How did the Supreme Court respond? It acquiesced in the firing of the Article III judges, and the Justices deeply feared impeachment. Even the famous Marbury v. Madison decision of 1803—known today as a symbol of judicial power because of its language about judicial review—is also a symbol of judicial weakness. The Court was reluctant to direct the Jefferson administration to allow William Marbury to begin a government job (a job to which the Court said he was entitled), because the Court assumed any such judicial order would be ignored by the President.

This early history is only a snapshot. For over a century, and particularly during moments of severe political upheaval, such as the Civil War and Reconstruction, the judiciary was under considerable pressure. But over time, as our democracy became stronger, political actors began to respect crucial norms of judicial independence. By the mid-twentieth century, political actors assumed that judges enjoy life tenure, absent impeachment; that impeachment is appropriate only for criminal conduct, never as retribution for a judicial decision; and that political actors must always obey court orders. The civil rights era proved to be a crucial moment of transition. Even as late as the 1960s, some segregationists defied federal court orders—and were cheered on by their fellow segregationists. But soon thereafter (by the time of the Nixon presidency), defying court orders was deemed unacceptable—perhaps because political leaders did not want to be equated with the historical villains who had opposed desegregation. 

The strong independence of the judiciary today is a relatively recent achievement in our still young democracy—and, for that reason alone, deeply fragile. And that fragility is very much in view today. In recent years, prominent political actors (from both political parties) have attacked judges by referring to their decisions as a “judicial coup” or as a “mockery of our law”; calling for judges to be impeached because of their decisions; and even suggesting that executive officials have “the authority to ignore this ruling.” 

Such rhetoric matters. In my research on the federal judiciary, I have found that political rhetoric may strengthen or undermine norms of judicial independence. Just as one example: From the 1950s until around 2018, it was unthinkable that any political actor would suggest “packing” the Supreme Court with additional members to change the future course of its decisions. This norm was reinforced by bipartisan rhetoric: both Democrats and Republicans used “Court packing” as a political epithet to condemn any judicial reform that they disliked. But starting around 2018, the rhetoric of political actors and legal professionals began to change—transforming Court packing from a measure that was utterly “off the wall” to one that is, today, not only plausible but (for some) a favored reform.

Whatever one thinks of the idea of expanding the Supreme Court, I want to underscore how quickly things changed: what had been out of the question became, within a few short years, a serious reform proposal. So I take it quite seriously when political actors discuss defiance of federal court orders or impeaching federal judges for their decisions. Norms may take decades to build but may be shattered in far less time.

Many people have told me that they rely on judges to save our democracy from any threats. I sympathize with the desire for a “savior.” But the reality is that the federal judiciary cannot save democracy. That is not simply because of jurisdictional rules and other legal restrictions on the courts. The reason is far more fundamental: A truly independent federal judiciary—that is, one whose judges feel free to make decisions that displease government officials, and whose decisions are nevertheless respected by those same officials—can exist only if we already have a reasonably well-functioning democracy. Judicial independence is a sign of a healthy democracy, not a way to get there.