Found a copy of Archibald Cox’s _The Role of the Supreme Court in American Government_ (Oxford, UK: Oxford University Press, 1976) a few years ago and put it aside in my book closet. Thought now was the time to take it out. The book is from lectures Cox delivered in the UK. Archibald Cox was the target of Richard Nixon’s Saturday Night Massacre that was part of the whole Watergate investigation and impeachment process and his words, I believe, speak to today’s politics too.
Archibald Cox
The Role of the Supreme Court in American Government
Oxford, UK: Oxford University Press, 1976
(page 7) Constitutionalism as a constraint upon government depends, in the first instance, upon the habit of voluntary compliance and, in the last resort, upon a people’s realization that their freedom depends upon observance of the rule of law. The realization must be strong enough for the community to rise up and overwhelm, morally and politically, any notable offender.
(8) Suppose that the President’s defiance [Nixon tapes case] were successful. The habit of compliance - the notion that a powerful executive official has no choice but to comply with a judicial decree - is a fragile bond.
(26) The courts ruled upon the claim of executive privilege as a defence to the subpoenas obtained by the Special Prosecutor because it arose in the course of normal judicial business: a grand jury inquiry into possible crimes in the one case [Nixon v Sirica], and the trial of a criminal indictment [United States v Nixon] in the other.
But resolving disputes between the President and Congress over the provision of evidence for the Congress is not part of, or incident to, any judicial business confided to the courts by the statutes that presently define their jurisdiction.
(107) Similarly, although the general outlook of an appointee may often be predictable enough and would be taken into account by any President, “value-packing" the Court in the sense of appointing men so committed to one set of values that all would vote together on a variety of issues in predictable ways would soon raise questions of legitimacy, and thus undermine both the Court and the impact of its decisions. One of the chief dangers of excessive politicization is its tendency to feed upon itself. If constitutional decisions lose their roots in law, such pressures as there are to appoint Justices steeped in the legal tradition would diminish, the decisions would become more political, and the descending spiral accelerate.
NB: John Adams’ “paper judges" - the Federal appointments rushed through confirmation at the end of Adams’ first and only term in office. Value packing and political cronyism have been part of the judiciary in the USA since the beginning.
More of my notes on this book at https://hubeventsnotes.blogspot.com/2019/12/archibald-cox-on-role-of-supreme-court.html