232 Politics and the judiciary
statute withdrawing jurisdiction from the Court while a case was actually
under consideration by the justices. However, most of the attacks upon the
Court have failed, though some only by a very narrow margin. They have
taken the form of the introduction of proposed constitutional amendments
which would have required a two-thirds majority, or some other high propor-
tion of the Court’s membership, before a state or federal statute could be
declared unconstitutional. Broad attacks have been mounted on the Court’s
appellate jurisdiction, which would have removed large areas from the Court,
or would even have removed altogether its power to overrule the decisions of
state supreme courts. Thus, the Detainee Treatment Act of 2005 purported
to remove from the jurisdiction of federal courts any cases concerning the
prisoners held in detention at Guantánamo Bay. Attempts have been made
to fix a retiring age for the justices, to make their positions elective, or to
give them short fixed terms of office. Other proposals would have made the
Senate into an appellate court to review Supreme Court decisions, or would
have given to Congress the power to set these decisions aside.
These attacks have come at the Court from every direction. In its early
years the Jeffersonians attacked the Court for its centralising influence; the
abolitionists attacked the Court for its support of the property rights of slave-
owners; after the Civil War the Radical Republicans wished to curb the power
of the Court because of its apparent sympathy for Southern complaints about
arbitrary arrests and restrictions upon freedom of speech; in the last quarter
of the nineteenth century the Progressives attacked the Court because of
its support for business and commercial interests; in the 1930s liberals at-
tempted to transform the Court because of its attack upon the New Deal leg-
islation; in the years following 1954 Southerners and conservatives bitterly
attacked the Court because of its decisions on segregation, apportionment
and abortion.
President Reagan’s administrations saw the emergence of a battle be-
tween the chief executive and the Supreme Court on a scale unknown since
the attack by President Roosevelt on the Court in the 1930s, but from a very
different ideological standpoint. Roosevelt attacked the Court for its activ-
ism in striking down his liberal policies aimed at ending the Depression, and
his attack on the Court was a demand for judicial restraint, allowing the
legislature to make decisions demanded in the national interest. Reagan
also attacked the activism of the Supreme Court, but his complaint was that
the Court was too liberal in its approach to social policy and his demands
for ‘ judicial restraint’ amounted to the requirement that the Court should
reverse its decisions on such questions as abortion, school busing and school
prayers, although on none of these issues could he get Congress to legislate
the policies that he would have liked to see implemented.
The Court and public opinion
The Supreme Court wields considerable power in the American political sys-
tem, and it plays a vital policy-making role in the government. What then is