Car Rubba

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FEDERALISM, PUBLIC OPINION, AND JUDICIALAUTHORITY IN COMPARATIVE PERSPECTIVE

Clifford J. Carrubba*

2010MICH.ST.L.REV.697

TABLE OF CONTENTS

ABSTRACT .................................................................................................. 697INTRODUCTION........................................................................................... 698I. WHY CREATE ACOURT? ..................................................................... 699II. JUDICIAL PERFORMANCE ..................................................................... 707CONCLUSION .............................................................................................. 712

ABSTRACT

Barry Friedman provides a compelling account of how public opinioninfluences the shape and direction of American Law by influencing the de-cisions of the Supreme Court of the United States. Barry covers the Courtfrom its inception at the Constitutional Convention through the multipleperiods of the Rehnquist Court.1 This relationship between public opinionand judicial decision-making is not limited to the United States. For exam-ple, a 2005 work by Georg Vanberg demonstrates that the German FederalConstitutional Court not only pays attention to, but also relies upon theGerman public to help promote its agenda.2 In this Essay, I use a general

theory of judicial influence first developed in the comparative courts con-text to evaluate the role of the Supreme Court in the 1800s.

* Clifford J. Carrubba is an associate professor of political science at Emory Uni-versity. 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 OPINIONHAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION(2009).

2. See generally GEORG VANBERG, THE POLITICS OF CONSTITUTIONAL REVIEW INGERMANY (2005).

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698 Michigan State Law Review [Vol. 2010:697

INTRODUCTION3

What role does the Supreme Court of the United States play in defin-ing and applying the laws of the land? The answer to this question superfi-cially appears quite straightforward. Formally, the Supreme Court is thecourt and the final arbiter of domestic disputes and questions over the con-stitutionality of secondary legislation. Only a constitutional amendment, nomean feat to pull off, can overturn a judicial declaration. As such, the dejure powers of the Supreme Court are quite awe-inspiring.

Barry Friedmans book, The Will of the People, challenges this per-ception with a careful and detailed case history of the Supreme Court sinceits inception. Barry argues that the de jure and de facto roles of the Su-preme Court could not be farther apart. While the Supreme Court looks thepart of an almost anti-democratic institution on paper, in practice, theCourts ability to promote the application of law contrary to public opinionis highly constrained. Barry not only argues why this should be true intheory but also demonstrates the heavy constraints on the Court throughoutits history. Barrys argument is straightforward: The Supreme Court has nopowers of enforcement, and it is highly vulnerable to political manipulationif 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 typesof policy areas over which the court is able to extend its authority overtime? Is it just a coincidence of history, or is there some underlying expla-nation?

In this Essay, I propose an answer that derives from my work on na-tional 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 theCourt is both a very important, and a very weak, component of the federalgovernment. 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 thisEssay are drawn from Urofsky & Finkelman, Farber & Sherry, and Friedman where nototherwise noted. See generally MELVIN I. UROFSKY & PAUL FINKELMAN, A MARCH OFLIBERTY:ACONSTITUTIONAL HISTORY OF THE UNITED STATES (2002); DANIEL A.FARBER&SUZANNA SHERRY, A HISTORY OF THE AMERICAN CONSTITUTION (1990); FRIEDMAN, supranote 1. Previous versions of the theoretical argument that inform this Essay have appeared innumerous journals of political science and include Clifford J. Carrubba, Courts and Com-

pliance 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) [hereinaf-ter 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, Courtsand Compliance,supra note 3; Carrubba,Federal and International Systems,supra note 3.

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Fall] Federalism, Public Opinion, and Judicial Authority 699played a critical role in facilitating state compliance with federal regulatorypolicies, but only over policies in which states faced collective action di-lemmas. Where the Court tried to do more, such as with the Dred Scottcase, the Court failed. Only after the New Deal do we see the Court start tosuccessfully push a legal agenda beyond this limited domain. In particular,the Court was an active participant in the United States civil rights revolu-tion, and, since then, continues to play an active role in a wide range of fed-eral 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 juri-sprudence through the Gilded Age. This analysis is neither meant to be atest of my argument,6 nor an exhaustive case history. Rather, I see it moreas a plausibility probe, which explores to what degree the development ofthe authority of the Supreme Court of the United States appears consistentwith more general arguments about the conditions under which sovereignstates 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 Rog-ers.7

I. WHY CREATE ACOURT?

In 1777, the thirteen colonies were asked to approve a central govern-ment created by the Articles of Confederation. The government consistedof a unicameral legislature in which each state delegation (consisting of twoto seven delegates) received one vote. Depending upon the subject matter,votes were by majority or supermajority (nine of thirteen) rule and a delega-tion could only cast a vote if at least two of its members were present. Re-vision of the Articles required unanimous consent of the member states. As

cumbersome as these procedures were, the central governments jurisdictionwas even more restrictive. The central government was formally grantedcontrol over foreign relations, including the right to wage war and negotiatetreaties, but not the power to tax or to regulate domestic affairs in any mea-ningful way.

This system started having problems along three dimensions almostimmediately. First, the lack of taxation powers created major revenue short-falls. The Confederation carried significant debt, both owing unpaid sol-diers for their wartime efforts and foreign governments for wartime loans.Without the power to tax, the central government had to rely upon states tovoluntarily pay its assessments. While some states did pay, that payment

6. See generally Carruba & Rogers, supra note 5; Carrubba, Courts and Com-pliance,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 mil-lion.8

Second, the inability to regulate interstate or international trade led tobeggar thy neighbor strategies across the colonies. For example, northernports taxed foreign imports to earn state revenue, resulting in higher pricesfor consumers in other states. Conversely, southern states that lacked a do-mestic shipping industry taxed exports lightly to encourage British ships totransport their goods directly to foreign markets. This strategy denied thenorthern shipping interests of business. A lack of coordination in foreigntrade also arose with interstate trade. While interstate trade was exemptedfrom foreign duties, states still taxed goods when they crossed borders, aswell as charged different navigation fees depending on the home state of theship.9

Finally, the rigidity of the Articles exacerbated both of these problemsby making it almost impossible for the national government to react. WhenRobert Morris attempted to revise the Articles so that the central govern-ment could charge a 5% impost duty payable directly to its coffers, the soleveto of Rhode Island was enough to prevent the revision from happening.Similarly, a proposal to amend the Articles to allow Congress to imposeuniform navigation acts was defeated when Rhode Island and North Caroli-na vetoed the proposal.10

The nations failure to address these problems led to the nationwiderecession of 1785-1786. Economies shrank, states started printing money totry to deal with budget shortfalls, inflation gained momentum, and unrest,such as Shays rebellion, grew. In response, increasing efforts were made toaddress some of the root causes of the recession. Pennsylvania unilaterallylowered a number of its discriminatory tariffs in 1785. Also, in 1785,Maryland and Virginia agreed to the Mount Vernon Compact, a commit-ment to not charge fees when ones ships used the others waterways. And,most aggressively, in 1786 the Virginia legislature called for a national con-vention on the Confederations overall commercial problems.11 In the end,only five states showed up and the Annapolis Convention ended with nosubstantive action taken.12 It did, however, end with a second call for aConfederation-wide convention that linked the need for revision of com-mercial policy with revision of the structure of government.

[T]hat the power of regulating trade is of such comprehensive extent, and will enterso far into the general System of the federal government, that to give it efficacy,

8. FARBER&SHERRY,supra note 3, at27-31;UROFSKY &FINKELMAN,supra note3, at 80-82.9. FARBER&SHERRY,supra note 3, at 29-30.

10. UROFSKY &FINKELMAN,supra note 3, at 84-85.11. Id. at 88-91.12. UROFSKY &FINKELMAN,supra note 3, at 90-91.

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Fall] Federalism, Public Opinion, and Judicial Authority 701and to obviate questions and doubts concerning its precise nature and limits, mayrequire a correspondent adjustment of other parts of the Federal System. 13

In the wake of the recession and its concurrent effects, as well as thefalse start of the Annapolis Convention, in 1787 the Continental Congressseconded the call for a constitutional convention. This decision by Con-gress was not unanimous. The Virginia legislature initiated the call, and byFebruary 1787, New Jersey, Pennsylvania, North Carolina, New Hampshire,Delaware, and Georgia signed on. However, with these seven states, Con-gress agreed that it was time for a constitutional convention. Debates in theconstitutional convention revolved around questions of institutional designand policy competencies. In terms of institutional design, two dimensionsloomed large, geographic representation and slavery. Unsurprisingly, smallstates wanted representation by state while bigger states wanted representa-tion by population. The plan known as the Connecticut Compromise, au-thored by Roger Sherman on June 11, 1787, resolved the conflict by havingone House selected by each mechanism. Also unsurprisingly, the Southwanted representation by population to include counting slaves as well. Inthe end, a slave counted as three-fifths of a person for purposes of allocatingseats in the House.

While these two themes occupied the majority of the time during theconvention, for the purposes of this Essay, the bigger issues revolvedaround deciding what policy competencies to allocate to the national gov-ernment. Many of the obvious flaws of the Articles of Confederation wereidentified and addressed by broad consensus, including the national gov-ernments need to be able to collect taxes, to establish and regulate curren-cy, to support a standing army, and to have sole jurisdiction over foreignaffairs. Relatedly, state governments no longer had the right to make trea-ties, issue tariffs on export duties, issue money, or abrogate contracts.14

Establishing a national commercial regulatory regime was more con-tentious. In particular, the South was reticent to agree to national regulationof commerce because of sectional concerns. The first of these concernscentered on economic interests. The South was a net exporter of agricultur-al goods and a net importer of manufactures. Southerners were concernedthat, if given the opportunity, the North would use the central government tosupport its interests over the Souths, such as raising export taxes to fundthe central government. The second of these concerns was the issue of theslave trade. Again, the South was concerned that the forces opposed to sla-very might use the central governments ability to regulate trade to restrictor 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 regulatetrade, but denied the central government the right to tax exports or regulatethe slave trade. As stated in Article I, Sec. 8 of the Constitution: the com-merce clause granted Congress the right [t]o regulate Commerce with for-eign 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 theestablishment of the federal judicial system. The agreement at the constitu-tional convention was limited. While there was a decision to create a Su-preme Court, and an agreement to allow for the possibility of lower federalcourts, the actual powers of the courts were left vague. The Constitutionclearly established that the Constitution, federal law, and international trea-ties were meant to be supreme over state law, and that federal courts wereexpected to enforce this scheme, but the only explicit statement of judicialpower was that [t]he judicial Power shall extend to all Cases . . . under thisConstitution, the Laws of the United States, and Treaties made . . . undertheir Authority.16 The Judiciary Act of 1789 resolved two of the outstand-ing issues. District courts were created for each state, and, in section 25, thefederal judiciary was explicitly granted the right to strike down state lawsthat 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 significantlyexpand the powers of the central government? Why did they decide tocreate a federal judiciary, and why did they explicitly confirm its authorityto rule state action invalid with the Judiciary Act? And finally, what ex-plains all of the powers the Founders did notprovide to the central govern-ment and its judiciary, such as federal judicial review?

In a series of articles, I argue for a simple underlying logicsovereignstates have the strongest incentive to create a common regulatory regimewhen the policies they wish to enact entail a collective action dilemma.17By this I mean that the state governments recognize the benefits of follow-ing a particular policy if the other states are also following that policy, butthat they also have incentives to defect from the policy despite the mutualbenefits to be gained from uniform compliance.

The prisoner dilemma is the classic example of this type of collectiveaction problem. Two individuals have been arrested for a crime and placedin separate rooms by the police. Each is told that they are going to jail ifneither 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 bothprisoners 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 Com-

pliance, supra note 3; Carrubba,Federal and International Systems,supra note 3.

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Fall] Federalism, Public Opinion, and Judicial Authority 703longer sentences than if they both stay silent. Each prisoner most prefers togo free, next most prefers the shorter, shared prison sentence, next mostprefers the longer, shared prison sentence, and least prefers to serve thewhole 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 strategyto rat; if the other prisoner is going to say nothing, by ratting you go freerather 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 thatthis is a Pareto inferior outcome, meaning that both prisoners are worse offthan if they both kept their mouths shut.

Sovereign governments have the strongest incentives to create a com-mon regulatory regime over policies that induce these sorts of collectiveaction dilemmas, and that seems to be what happened in the context of theUnited States. Two examples will suffice. Consider first fiscal and mone-tary policy. All of the states benefit from a sound economy (e.g. economicgrowth and low inflation). However, by not allowing the central govern-ment to collect taxes or establish a single national currency, collective ac-tion dilemmas undermined the governments ability to achieve this goal. Asdescribed above, the states had the incentive to, and did, refuse to pay as-sessments meant to fund the central governments coffers. Then, as thenational debt grew, the value of the Continental Congresss paper moneyshrank and the bonds it issued depreciated. The result was a national short-age of cash, pressure on the states to print their own money, inflation, andrecession. The decision at the constitutional convention to allow the centralgovernment to collect revenue and impose a single, national currency spe-cifically 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 wouldbe uniformly better off under a free trade regime than one in which every-one imposes trade barriers.19 However, a free trade regime is one in which astate government does nothing to protect its import-competing sectors inexchange for its exporters having easier access to the other states markets.Thus, each government has an incentive to unilaterally raise trade barriers inan effort to protect its import-competing firms, while hoping that the otherstates are not doing the same. Again, we see that the Articles of Confedera-tion failed to resolve this collective action dilemma, and the constitutionalconvention placed this policy competence into the hands of the federal gov-ernment 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 dilem-

18. See, e.g., DAVID BRIAN ROBERTSON, THE CONSTITUTION AND AMERICASDESTINY 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 thisgame is played only once, there is no way out of the dilemma, even with anexplicit statement on the part of both prisoners not to defect, defection isstill a dominant strategy. Thus, when state governments agree on a Consti-tution that says the federal government has the sole power to regulate trade,it does not mean that the states physically cannot regulate trade in responseto pressure from their import-competing sectors. It is only a written com-mitment not to do so. So what can resolve the dilemma?

Again returning to the stylized example, if the prisoners play the pris-oners dilemma game repeatedly, coordinating silence is a possibility. Thelogic is simple. Each prisoner can engage in the following threat: I willkeep silent every time we are arrested if you will as well; however, if I keepsilent and you rat on me, I will not keep silent in the future. This threatchanges the strategic dynamic of the game because it induces a long-run/short-run trade-off. If I rat on you, I gain the short-run benefit of stay-ing out of jail, but I cost myself the long-run benefit of you keeping silentabout my criminal activities in the future. As long as each of the prisonersvalues the long-run benefit of cooperation highly enough, they will forgothe short-run benefit of ratting today and Pareto-improving cooperation be-tween the prisoners is sustainable. Passing control over fiscal, monetary,and trade policy to the federal government can be understood as a writtencommitment to play the cooperative strategy on these policies and that non-compliance with the regimes rules can be punished through whatever me-chanisms are available, such as retaliation in this case.

If this narrative explains the decision to create the federal governmentand the particular regulatory regime it was empowered to control, what ex-plains the decision to create the federal judiciary? The obvious answer isthat it was created to ensure compliance, particularly state governmentcompliance, with the national regulatory regime. This interpretation is con-sistent both with what came out of the constitutional convention and theJudiciary Act. However, this answer cannot be sufficient. The judiciary hasno direct power of enforcement. For example, once the Supreme Courtdeclares that the Virginia government unduly burdened trade, its job isdone. If Virginia was willing to ignore the federal governments sole au-thority to regulate trade, it can equally well ignore the Courts ruling. Fur-ther, if the decision to centralize trade policy was an implicit agreement toenforce compliance through threats of retaliation, why would there be aneed for a Court in the first place? The federal government could presuma-bly monitor compliance and dish out punishment itself without need of a

judiciary.

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Fall] Federalism, Public Opinion, and Judicial Authority 705In 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 regulatorynetwork, monitoring compliance with the regimes rules can require a po-tentially enormous investment of resources. For example, suppose Virginiadecides 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 tryingto get Virginia merchants to accept the specie. It is not so simple with re-gards to trade, because there are so many ways to burden trade. States canimpose tariffs on imports, an easy behavior to monitor directly, providesubsidies to the import competing firm, harder to observe without time andeffort, or impose regulations that end up favoring domestic firms over theimporters, harder still to monitor. Further, Virginia has to monitor this be-havior with regards to all trade activity of all states continuously over time.Such monitoring could of course be done, but it would require a significantinvestment in government resources.

Establishing a judiciary can be an efficient alternative solution to thestates monitoring challenges. To see how, suppose Maryland engages insome form of discriminatory behavior over Virginian beer. The beer pro-ducer being directly harmed by Maryland policy has every incentive tobring a case in federal court. This is what is meant by a fire alarm sys-tem. In the process of bringing the case, the private litigant automaticallyadvertises the possibility that Maryland is engaging in discriminatory prac-tice. Not only does this draw Virginias attention to a possible instance ofnoncompliance, but it also saves Virginia time from having to watch all theother ways Maryland might have been violating the regulatory regime. Ifno one is complaining, by bringing a case to court, Virginia can ignore it.

While important, this is only half the story. The governments stillneed to identify if the claimed violation should be punished. The court faci-litates answering this question by acting as an information clearinghouse.Once a case has been brought, the litigants argue their cases, third partieshave the opportunity to file amicus briefs, and information about the case ingeneral is disseminated among the vested interests. This information isimportant in two regards. Most obviously, this information helps clarifywhether the state has really violated national law. If the state has not vi-olated the regulatory rules, the state most likely will be off the hook. How-ever, if the state has violated the rules, that does notnecessarily mean it isgoing to lose the case and come into compliance. Why? State governmentsdo 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 Com-pliance, 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 tothe state looking for compliance. When the benefits of an instance of com-pliance exceed the costs, we can call that an instance ofmutually beneficialcompliance. It is not mutually beneficial because both states benefit fromthat instance of compliance, but rather because both states are ultimatelybetter off under a regime in which every state complies whenever the bene-fits of compliance exceed the costs (assuming, of course, these situationsarise frequently enough in expectation). When the benefits of complianceare less than the costs, we would call this an instance of mutually costlycompliance. Everyone is worse off in expectation if everyone compliesunder these circumstances. Thus, the states wantselective compliance withthe regulatory regimes rules, compliance when it is mutually beneficial, butnot otherwise. Hearing the case facilitates selective compliance because,whether directly in the argument of the case or indirectly through backchannel communications, vested interests are also going to learn about howcostly compliance would be. This cost can be a function of a variety offactors, including the economic cost of compliance to state interests or thepolitical 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, thePike balancing test,specifically formalized the Courts longstanding practice of weighing thecosts and benefits of state legislation that burdens trade:

Although the criteria for determining the validity of state statutes affecting inter-state commerce have been variously stated, the general rule that emerges can be

phrased as follows: Where the statute regulates even-handedly to effectuate a legi-timate local public interest, and its effects on interstate commerce are only inciden-tal, it will be upheld unless the burden imposed on such commerce is clearly exces-

sive 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 betolerated will of course depend on the nature of the local interest involved, and onwhether it could be promoted as well with a lesser impact on interstate activities.Occasionally the Court has candidly undertaken a balancing approach in resolvingthese issues, but more frequently it has spoken in terms of direct and indirecteffects 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 vi-olated national law, and the state has not come back into compliance bycomplying with an adverse ruling by the court, the state is going to be pu-nished. Under this punishment strategy, the federal court then has the abili-ty 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 thestate 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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Fall] Federalism, Public Opinion, and Judicial Authority 707that they wish to resolve by passing those laws up to the national level.However, it cannot rule against state governments and get compliance whenits decisions are otherwise. Thus, the influence of a court in this system isvery selective. It can facilitate compliance with a common regulatory re-gime that the state governments wish to see followed, but it can do so onlyto the degree that the state governments want it followed. The Court cannotpush law beyond this point, and it certainly cannot get state governmentcompliance with its rulings when these conditions are not met.

II. JUDICIAL PERFORMANCE

If this argument is correct, one should observe a variety of implica-tions. The Court should be active in trying to resolve inter-state collectiveaction problems, the Court should be limited in how severe a cost it mayimpose 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 follow-ing discussion relies upon Barrys examination of the case history of theSupreme Court from its founding through the Gilded Age.22

Prior to the onset of the Civil War, the Supreme Court was engaged intwo battles: a battle over its authority to declare state action invalid and abattle over its authority to rule federal action invalid. For ease of exposi-tion, I start with the federal challenge first.

Anyone familiar with the history of the Supreme Court is familiar withthe two great foundational cases of federal judicial review,Marbury v. Mad-ison23 and Stuart v. Laird.24 In 1800, the Federalists were defeated soundlyby Thomas Jefferson and his anti-federalist Republicans. Fearful of whatthe Republicans would do, the outgoing Adams administration and Federal-

ist Congress passed the Judiciary Act of 1801. In this Act, the Federalistscreated numerous new circuit court judgeships and appointed a host of Fe-deralists to those posts. The Republicans responded quickly by passing theRepeal Act of 1802, an act that repealed the Judiciary Act and thereby can-celled all of the Federalist appointments. The two cases arose from thisbattle. In Marbury v. Madison, Marbury challenged Madisons refusal todeliver his circuit court appointment,25 while in Stuart v. Lairdthe constitu-tionality of the Repeal Act of 1802 was challenged.26 These cases are fam-ous for Marshalls crafting of the opinions. InMarbury, Marshall declaredthat Marburys appointment had been properly made, that federal officialscould be taken to court for violations of legal rights, and that federal courts

22. FRIEDMAN,supra note 1, at 19-166.23. 5 U.S. (1 Cranch) 137 (1803).24. 5 U.S. (1 Cranch) 299 (1803).25. Marbury, 5 U.S. (1 Cranch) at 138.26. 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 sup-ported a ruling in favor of Marbury, the Court lacked jurisdiction and dis-missed his action.27 With the establishment of federal judicial review inMarbury, Marshall then found that there was no problem with the constitu-tionality of the Repeal Act.28

These opinions were seen as politically, if not legally, brilliant; Mar-shall provided a firm precedent for federal judicial review without actuallyruling against the federal authorities and thereby avoiding any risk of thefederal government ignoring the Courts decisions. Whether or not theseopinions were foundational for future federal judicial review, the salient facthere is that the Court did not rule against the federal government. This de-cision is consistent with my argument. The federal governments actionsresolved no collective action dilemma for the states. Therefore, there wouldbe no reason to expect the states to sanction federal noncompliance with theCourts rulings, and the Court could not expect Jefferson to obey an adverseruling. Recognizing its inability to get compliance, the Court bided its timeand ruled in favor of the Republicans.

Now compare this outcome to judicial efforts to assert authority overstate behavior in the early 1800s. In Chisholm v. Georgia (1793),29Martinv. Hunters Lessee (1816),30McCulloch v. Maryland(1819),31Cohens v. Vir-ginia (1821),32Gibbons v. Ogden (1824),33New Jersey v. Wilson (1812),34United States v. Peters (1809),35Green v. Biddle (1823),36 and Worchester v.Georgia (1832),37 the Supreme Court asserted the right of federal judicialreview over the actions of state legislatures and state courts. These deci-sions met with varying levels of success. In Gibbons v. Ogden, the Courtwas asked to determine the validity of a steamboat monopoly granted to anin-state interest.38 This monopoly clearly violated the commerce clause,placing a blanket restriction on the right of outside interests to compete toprovide a service. The Court struck down the monopoly right and the deci-sion was followed. Compliance with this decision makes intuitive sense;the monopoly right issue fits cleanly within this collective action dilemmaframework, and given the concentrated costs of compliance (only Ogden

27. Marbury, 5 U.S. (1 Cranch) at 146-80.28. Stuart, 5 U.S. (1 Cranch) at 299.29. 2 U.S. (2 Dall.) 419 (1793).30. 14 U.S. (1 Wheat.) 304 (1816).31. 17 U.S. (4 Wheat.) 316 (1819).32. 19 U.S. (6 Wheat.) 264 (1821).

33. 22 U.S. (9 Wheat.) 1 (1824).34. 11 U.S. (7 Cranch) 164 (1813).35. 9 U.S. (5 Cranch) 115 (1809).36. 21 U.S. (8 Wheat.) 1 (1823).37. 31 U.S. (6 Pet.) 515 (1832).38. 22 U.S. (9 Wheat.) at 1-2.

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Fall] Federalism, Public Opinion, and Judicial Authority 709suffers), it is unlikely the costs of compliance for the state government werehigh.

Contrast this result with McCulloch v. Maryland.39 In McCulloch,Maryland had imposed targeted taxes on in-state branches of the NationalBank.40 Fundamental to this case was the question of whether the federalgovernment had the right to charter a national bank or not. Summarizing along history briefly, there was real division at all levels as to whether a na-tional bank was important to the economic health of the nation. Those whobelieved it was felt that the added competition to state bankssomethingany state government would have to work to justify supporting to their localbanking interestsas worth the cost, but only if the bank could successfullyoperate at a national level. In deciding in favor of the bank and against thelocal taxes, which were designed to drive the national bank branches out ofbusiness, the Court was deciding against particularized state interest and infavor of a perceived collective benefit. While Maryland complied with thedecision, Ohio refused to recognize the precedent and imposed its own taxeson instate national bank branches. Only four years later, when Ohio lost thecase, the banking controversy had quieted, and potentially the political costof compliance for the Ohio government lessened, did Ohio come into com-pliance.

Finally, there were cases at the opposite end of the scale, cases inwhich the Court ruled against states and the states outright defied the court,includingMartin v. Hunters Lessee (1816),41New Jersey v. Wilson (1812),42United States v. Peters (1809),43Green v. Biddle (1823),44 and Worchester v.Georgia (1832).45 For the purposes of illustration, I focus on three of thesecases. First, considerNew Jersey and Worchester.46 In neither of these cas-es did the states face an evident collective action dilemma. InNew Jersey,the Court ruled that the state had illegally ended a tax exemption on Indianlands; while in Worchester, the Court ruled that a requirement to obtain alicense to live on Cherokee lands was invalid. With no obvious collectiveaction benefit from enforcing the Court decisions, the states had little to fearfrom ignoring the decision.

Last, consider Green.47 When Kentucky became a state, it made anagreement with Virginia that any Virginian landholders would retain theirtitle on all Virginia land ceded to Kentucky. Subsequent to this agreement,

39. McCullough v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).40. Id. at 317-22.41. 14 U.S. (1 Wheat.) 304 (1816).

42. 11 U.S. (7 Cranch) 164 (1813).43. 9 U.S. (5 Cranch) 115 (1809).44. 21 U.S. (8 Wheat.) 1 (1823).45. 31 U.S. (6 Pet.) 515 (1832).46. 11 U.S. (7 Cranch) 164; 31 U.S. (6 Pet.) 515.47. 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 re-quired Virginians to pay the squatters the value of the improvements, seek-ing to remove the squatters from the Virginians lands. In deciding Green,the Court invalidated the Kentucky law and initially Kentucky state courtsissued rulings consistent with the Supreme Courts decision. However, thedecision was deeply unpopular in Kentucky and, in response to these deci-sions, a Relief party emerged, won office, reconstituted the Kentucky Courtof Appeals, and started getting the occupying claimant laws applied again instate court. While obviously a complicated political situation with morethan just these particular laws at stake, this case seems pretty clearly to fallinto the camp of a high cost compliance situation for the Kentucky stategovernment. So high cost, in fact, that the Kentucky government actuallywas replaced with a party specifically intent upon noncompliance. Thus,while there obviously are collective action issues implicated in any contrac-tual law conflict, it appears that the Court incorrectly assessed, or did notcare, that the enforcement was going to be deeply problematic.

While this discussion is far from a full and thorough treatment of allthe important cases pre-Civil War, it does suggest that where the Court hadsuccess ruling against government actions it was because they were stategovernment actions in which a plausible case for a collective action dilem-ma could be made. And, further, where the costs of compliance were high-er, compliance was problematic.

The period leading up to the Civil War and through Reconstruction isacknowledged as a particular low point for the Court. Famously, withDredScott v. Sandford (1857), the Court weighed into the slavery issue.48 Sla-very divided the country like no other issue. With the westward expansionof the country, efforts to keep the fragile balance between the pro-slaveryand anti-slavery states became increasingly tenuous. With tensions rising,Dred Scott, a slave, sued for freedom while in Missouri. Scott argued thathis freedom should be granted because his owner had taken him to Illinoisand the northern territory, which were designated as free lands by the Mis-souri Compromise. After a number of appeals, the case eventually reachedthe Supreme Court. The Court declared both that Scott had no standing infederal court and that the Missouri Compromise was unconstitutional.49Barrys discussion of this case goes into far greater detail, however, for mypurposes, the main point is that the Court failed to resolve this issue in anymeaningful way. The tensions that led to the case eventually led to the CivilWar and an eventual reversal of the decision. This failure to successfully

navigate the tension between the North and South comes as no surprise.

48. 60 U.S. (19 How.) 393 (1856).49. Id. at 395.

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Fall] Federalism, Public Opinion, and Judicial Authority 711There is no decision the Court could have made that would have resolvedthe fundamental tension because in this issue there was no collective actionproblem, only winners and losers.

As Barry points out, the decisions of the Court and the treatment ofthose decisions changed during the Civil War and Reconstruction.50 First,while Lincoln rode roughshod over the Court during the war, he did takecare to attempt to couch the decisions to suspend habeas corpus rights, forexample, in legalistic language. Second, throughout Reconstruction, expli-cit calls for noncompliance transformed into calls for legislative overridesand constitutional amendments. However, the outcome was the same. Thewinners of the war wanted to use military tribunals and military law againstthe South. In ex parte Milligan51 the use of military tribunals was chal-lenged, while in ex parte McCardle52 military rule over the South was chal-lenged. ForMilligan, the Court actually ruled in favor of the plaintiff anddeclared that military tribunals could not be used in a state belonging to theunion that had a functioning civil court. This decision, along with DredScott, was overridden by passage of the Fourteenth Amendment and subse-quent legislation that imposed military rule upon the South. ForMcCardle,the Court procrastinated on hearing the case until Congress passed a billstripping the Court of jurisdiction to hear the case.

In sum, it should come as no surprise that the Court had little ability torein in federal government behavior. The North was fighting a war andimposing a peace. There was no collective action dilemma, no incentive forthe northern states to accept anything less than whatever terms they wantedto impose upon the southern states. Thus, there were no grounds uponwhich the Court could successfully assert its authority over the collectiveinterests of the northern states as represented in Congress.

Interestingly, the opposite dynamic held for the Courts treatment ofthe Fourteenth and Fifteenth Amendments and the Civil Rights Act of 1866.Here, Congress specifically tried to protect the rights of the newly freedslaves, but in case after case, the Court struck down Congresss efforts. Inthe Slaughterhouse Cases (1873), the Court so narrowly construed the rightsof a nationalas opposed to statecitizen that it effectively defined awaythe reach of the Fourteenth Amendments Privileges or Immunities Clause.53In United States v. Cruikshank54 and United States v. Reese,55 the Court ap-plied similarly narrow readings of the rights that the Fifteenth Amendment

50. FRIEDMAN,supra note 1, at 105-36.51. 71 U.S. (4 Wall.) 2 (1866).52. 74 U.S. (7 Wall.) 506 (1868).53. 83 U.S. (16 Wall.) 36 (1872).54. 92 U.S. 542 (1875).55. 92 U.S. 214 (1875).

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could protect, and, in the Civil Rights Cases,56 the Court struck down theCivil Rights Act of 1875. All of these decisions effectively stripped Con-gress 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 toenforce these provisions and protect minority rights had dwindled by thetime the cases were decided. Without that potential sanction, there was noway for the Court to be able to enforce these rights and get the southernstates to comply. Thus, again, even if the Court had applied an aggressivereading of rights into these decisions, the outcome would have been thesame. 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 syste-matically assert its authority. Here the Court was confronted with the issueof regulating the railroads. As Barry Friedman documents, while an effec-tive system supporting inter-state commerce required a cheap way of gettinggoods across the country, individual states had strong incentives to applytaxes and other burdens onto the railroads, as well as repudiate state debt.Thus, the Court was once again on strong ground. By ruling against stateactions that burdened the railroadsor undermined the incentive for privateactors to invest in railroad construction, the Court was helping to resolve acritical inter-state collective action problem. With the anti-Granger rul-ings such as Wabash, St. Louis and Pacific Railway Co. v. Illinois (1886),57Chicago, Milwaukee & St. Paul Railway Co. v. Minnesota (1890),58 andGelpcke 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 Su-preme Court through the 1800s were in helping resolve inter-state collectiveaction problems. During this period such problems consisted in dampingdown state efforts to regulate economic activity. Where the Court tried toinfluence behavior outside of this realm, such as with the slavery issue andIndian rights, the Court had a notable lack of success.

CONCLUSION

So how does this analysis fit into Barrys work? According to Barrysargument, public opinion set meaningful constraints on how the SupremeCourt could rule and thereby how the Supreme Court could, in any syste-matic way, influence the contours of American law. In this Essay, I suggestthat 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. 109 U.S. 3 (1883).57. 118 U.S. 557 (1886).58. 134 U.S. 418 (1890).59. 68 U.S. (1 Wall.) 175 (1863).

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Fall] Federalism, Public Opinion, and Judicial Authority 713government with the capacity to facilitate the creation and enforcement of acommon regulatory regime designed to resolve collective action problemsamong the states. Where the Supreme Court made rulings that were clearlyconsistent with these goals, such as in Ogden or the Grangercases, the de-cisions were obeyed. Where the Supreme Court made decisions that did notfit within this framework, such as with regards to state policy towards Na-tive Americans or its Civil War and Reconstruction rulings, compliance wasproblematic. Thus, I see my arguments as complementary with BarryFriedmans to the degree that public opinion and state government prefe-rences went hand-in-hand. This relationship is particularly well exemplifiedby Green, a case where state public opinion went so far against the SupremeCourts ruling that a party specifically intent upon countering the SupremeCourts decision was, implicitly, voted into power.

This discussion still leaves much on the table. First, it says nothingabout why problematic policies, such as regulation of Native Americans,were passed into the hands of the federal government at the constitutionalconvention. That decision, in many ways, appears to have set the Court upto fail and certainly seems inconsistent with my argument. Second, it saysnothing about how the Courts jurisdiction and influence changed after theGilded Age. For example, what explains the Courts evolving role in thecivil rights revolution of the mid-1900s? Finally, it says nothing about howan evolving understanding of the proper role of the Court comes about. Wefirst see the possibility of effective federal judicial review emerge duringReconstruction, followed by more battles over it with New Deal legislation,and now today it is de facto an uncontested power. Why does public opi-nion come to support this change, among others? These last two points arenot necessarily inconsistent with my argument, though at a minimum theyrequire some added machinery.60

To conclude, I return to where I started this Essay, with work on inter-national and comparative courts. Many of the ideas proposed here firstarose from research on the European Court of Justice (ECJ). While thisEssay is not the place to do a full comparison, a quick discussion posessome intriguing questions.

In 1959, six European states created the European Economic Commu-nity (EEC). These statesFrance, Germany, Italy, Belgium, Luxembourg,and the Netherlandshad been through two world wars and felt that devel-oping closer political and economic ties was critical towards ensuring thatthere would not be a third one. As famously stated, however, Europewould 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 therewould be mutual gains from the elimination of tariff and non-tariff barriersto trade among the member states, as well as the creation of a common ex-ternal tariff. However, also as with the US, the EEC recognized that mem-ber states had incentives to defect from this regulatory regime. As such,they created the European Commission, European Parliament, and Euro-pean Council of Ministers to propose, enact, and implement the laws neces-sary to create this common market. The EEC also created the ECJ to ruleon possible violations of this regimes rules.

Unlike in the U.S. case, the ability of the ECJ to rule acts of the EECinvalid was never in question. The preliminary ruling system was designedby the member states to do exactly that. In particular, private litigants coulduse 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 lawfrom the ECJ, which it would then use in making a final ruling. Mechan-isms were also set up to challenge member state government compliancewith EEC law. In particular, either member states or the Commission couldbring a case directly to the ECJ, arguing that the member state was in viola-tion of EEC law. Eventually, the preliminary ruling system was trans-formed into one that also allowed private litigants to challenge that theirrights under EEC law were being violated as well.61

Other than private litigants ability to challenge EEC law being imme-diately available, the EEC system and resultant behavior look remarkablysimilar to the U.S. in the 1800s. In other work, I argue that there is goodreasonthe same reason as hereto believe that the ECJ had to worryabout compliance with its rulings and that it can only anticipate complianceif it anticipates the threat of sanctions from other member statessuch as ifits rulings are not followed.62 Evidence consistent with this argument isfound 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 in-ternational or domestic, face similar challenges. Asserting authority oversovereign government behavior is no trivial task, no matter what the laws onpaper say. At least initially, these courts can help facilitate compliance witha regulatory regime in ways consistent with the preferences of those consti-tuent governments, but no more. The challenge then comes in with the

61. Geoffrey Garrett & Barry R. Weingast, Ideas, Interests, and Institutions: Con-structing 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 EUROPEANLAW (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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Fall] Federalism, Public Opinion, and Judicial Authority 715Courts efforts to accrue the kind of legitimacy necessary such that they canstart to act independent of those government preferences. As Barrys argu-ment suggests, this can happen if public opinion is strong enough in onedirection that the Court can use it as political cover, but that only happens ifpublic opinion is also contrary to the preferences of the governments. Oth-erwise, as I argue in my 2009 article, A Model of the Endogenous Devel-opment of Judicial Institutions in Federal and International Systems, moremust be true.64

64. Carrubba,Federal and International Systems,supra note 3.

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