On October 24th, 2017, Visiting Professor Tara Grove spoke about judicial independence in the current political climate at an event sponsored by the American Constitution Society. Professor Grove is a Professor of Law at William and Mary Law School and served as the Supreme Court Chair on the Harvard Law Review during her time at Harvard Law School, after graduating from Duke University and teaching English and Japanese in Japan. Following law school, Grove clerked for Judge Emilio Garza on the U.S. Court of Appeals for the Fifth Circuit. She spent four years as an appellate attorney for the U.S. Department of Justice. As part of her transition to legal academia, Grove served as a Climenko Fellow and Lecturer on Law at Harvard Law School. Grove was also a visiting professor at Northwestern University School of Law. Her research focuses on the federal judiciary and the constitutional separation of powers. She has been published in various law journals including the Harvard Law Review, Columbia Law Review, University of Chicago Law Review, New York University Law Review, University of Pennsylvania Law Review, Cornell Law Review, and Vanderbilt Law Review.
Grove started her speech by recalling Trump’s travel ban and the chaos that erupted at national airports and international airports as people were stranded and left not knowing whether they could leave or return to the United States. Six days later, a federal district court judge issued a nationwide injunction and everything stopped. Trump called the order ridiculous, but with a single stroke of a pen, judicial independence prevailed as politicians and the Department of Homeland Security immediately complied.
Grove rhetorically asked the audience where this judicial power comes from. She theorizes it comes not from the Constitution, not from Article III, and not from statutory text informed by structure or history, but rather from the convention of protecting judicial independence. In her research, Grove defines convention as a widespread bipartisan norm that holds if anyone fails to comply, even members of their own party will criticize them.
Grove next discussed how the Constitution is not clear on how to remove federal judges from the bench. In the past, some have advocated abolishing the court where the judges sit in order to remove them, but this idea is considered absurd today. In 2011, Newt Gingrich proposed exactly this for the Ninth Circuit, and he received bipartisan backlash because he attempted to violate a convention of judicial independence. Similarly, in 1937, Franklin D. Roosevelt attempted to pack the bench with fifteen Supreme Court justices faced resistance, although not as extensive, because court packing became a violation of the convention of judicial independence.
The most recent norm is compliance with federal court orders. Grove stresses this was not always the case, evidenced by Governor Barnett attempted to defy a federal court order after Brown v. Board of Education, denying James Meredith admission to University of Mississippi. In an effort to find the answer, she delved into historical research and discovered that during the Civil Rights Movement, our society applauded and cheered for defiance of federal court orders in order to uphold segregation.
Grove also found that the Civil Rights Movement was the impetus for compliance with federal court orders. People became tired of obstruction and massive resistance (on the side of segregationists) was viewed as a collection of embarrassing moments in American History. The reaction to the travel ban was in line with this. Even President Trump in his tweets ridiculing the judge who issued the order stated that it “will be overturned.” He saw the only answer as appellate review. Grove argued this shows how strong the convention of judicial independence is.
However, Grove believes we are at risk of a breakdown of these norms and conventions. In 2013 we saw Senate Democrats eliminate the traditional filibuster rule for federal court justices, and in 2017 Senate Republicans got rid of the traditional filibuster requirement for Supreme Court nominations. Notably, the Senate actually refused to hold hearings for Supreme Court nominee Merrick Garland, and even stated they would not hold hearings for any candidate at all, going so far as to say they would block a nominee even if Hillary Clinton won the presidency. This is a breakdown of norms at the appointment process.
We also see this breakdown at the local level. Arizona Sheriff Joe Arpaio was arrested for violating federal district court order against his aggressive enforcement tactics and Trump pardoned him, commenting on his “admirable service.” This is a direct challenge to the convention of judicial independence. Additionally, Judge Roy Moore was twice removed from office for leaving a Ten Commandments display up at a state courthouse and for encouraging officials to deny same-sex marriage licenses in defiance of a federal court order. However, even other judges who agreed with Moore stood up for judicial independence by reinforcing the obligation to obey federal court orders. We have not returned to the 1950s and 1960s where we cheer on violations of federal court orders.
Grove thinks we should still be concerned. Moore was selected as a Republican nominee for U.S. Senate in Alabama, where he was applauded for violating federal court orders. We need to be aware of the conventions that protect judicial independence and do whatever we can to protect them if we think they are correct. Grove believes the study of conventions and thinking about the government at large informs our understanding of the Constitution. The most important of our conventions is that we care about the Constitution at all. Other countries have constitutional texts, but these texts are often weighed differently.
Grove ended by suggesting we think about the conventions that uphold our constitutional culture in order to preserve them, act on them, and use them to remind our leaders that even judges can impact national policy.
In response to questions from the crowd, Grove emphasized that courts stick together. Justice Gorsuch’s rejection of Trump’s tweets reflects that Justices stick together. It is likely
federal judges will stick together to defend the convention of obeying federal court orders as a whole. But it depends who is on the judiciary; if Trump appointed mavericks to the Court instead of traditional federal circuit court judges, we may see a breakdown in the norms.