President Donald Trump’s second term has been defined by repeated showdowns with federal judges, who have issued nationwide injunctions in record numbers enjoining his executive orders. With Democrats relegated to minority status, congressional Republicans steadfastly backing Trump, and the president pushing the boundaries of executive power, it’s no surprise that the judicial branch has become the primary bulwark slowing his agenda on everything from deportations to budgetary impoundments.
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The backlash to judges impeding Trump has been fierce. Congressional Republicans have accused “activist federal judges” of “abusing their… power.” The GOP has backed these condemnations with action. In April, the Republican-led House of Representatives passed the No Rogue Rulings Act (NORRA) barring the nation’s 677 district court judges from issuing nationwide injunctions.
But while lower level courts have repeatedly ruled against the administration and blocked actions, Trump’s record at the Supreme Court has been much better. The president has scored a series of victories in high-profile cases on issues ranging from the president’s discretionary power over government spending to the removal of leaders of independent agencies. Commentators have argued that the Supreme Court has succumbed to the pressure applied by Republicans, moving to avoid a direct confrontation with Trump and his congressional allies, to prevent both a constitutional crisis and any loss of power. This wouldn’t be the first time the Court has avoided a head-on fight with the other branches, especially after Congress makes noise about circumscribing its authority.
Most notably, in 1958, congressional conservatives pushed to rein in the Warren Court for rulings that challenged and undercut the red-baiting that characterized the era of McCarthyism. Senate Majority Leader Lyndon Johnson thwarted their push, but it still helped to temper the Court’s activism for several years, until the arrival of new justices and a more favorable political climate produced another wave of landmark opinions.
Even after the downfall of Wisconsin Senator Joseph McCarthy in 1954, the tactics he had relied on to hunt alleged communists—blacklists, loyalty oaths, reliance on anonymous informants, prosecutions of anti-government speech, and the browbeating of witnesses—persisted.
Like other government institutions, the Supreme Court initially green-lighted these practices. In April 1956, however, the justices reversed course. Days after striking down the anti-sedition laws of 42 states in Pennsylvania v. Nelson, the Court barred investigators from intimidating witnesses relying on their Fifth Amendment right against self-incrimination. Then that June, just days after McCarthy’s death, the justices restricted the federal security program, which allowed agencies to dismiss employees on the grounds of national security, only to personnel holding “sensitive” positions.
“While the Senate last week was burying McCarthy,” wrote I.F. Stone, “the… Supreme Court buried McCarthyism.”
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But this was just the beginning. A year later, on a day dubbed “Red Monday,” the Court handed down four blockbuster decisions that placed limits on government at every level. The justices circumscribed the authority of congressional committees and state legislatures to question witnesses, narrowly construed the statute used to prosecute seditious speech, and restrained the ability of federal agencies to terminate employees.
This was a bridge too far for many on the right, especially southerners already incensed with the 1954 decision in Brown v. Board of Education, which desegregated schools. Critics blasted the Court. Georgia Senator Richard Russell, the leader of the chamber’s Southern bloc and not as much of a fire breather as some of his colleagues, nevertheless accused the justices of establishing “judicial tyranny”. One southern newspaper editorialized: “Maybe the United States needs an American Supreme Court.”
And it wasn’t just Southerners who teed off on the Court. FBI director J. Edgar Hoover added to the hysteria by blaming the justices for delivering the “greatest victory the Communist Party in America has ever received.” When Learned Hand, a renowned liberal jurist, berated the justices for acting like “Platonic Guardians” who had overstepped their authority, he gave credence to these critiques.
Within weeks, conservative Southern Democrats and their Republican allies had introduced 70 bills to narrow the Court’s jurisdiction. Some curbed its oversight over sister branches, others installed term limits or mandated a retirement age for justices, and still others granted the Senate the power to overrule disfavored opinions and require new justices to have prior judicial experience.
One proposal moved to the forefront, however. Indiana Senator William Jenner, a McCarthy acolyte, introduced a bill prohibiting the Court from hearing appeals in various arenas associated with the government’s anti-communist crusade.
Pushback by liberals on the Senate Judiciary Committee prompted a Jenner ally to water down the proposal to keep it alive.
As the Senate grappled with Jenner’s proposal, the House passed a bill (H.R. 3) to overturn Nelson. Its language, however, threatened to do far more than undo the nullification of state anti-sedition laws. It stated that unless Congress explicitly called for a federal law to trump state laws on a given subject, state law would remain intact. The NAACP immediately recognized that such a law could “destroy the constitutional rights of colored citizens and… reverse” Brown.
As these bills gained momentum, Johnson materialized as the Warren Court’s chief defender. On his way to becoming the “master of the Senate,” the Texan had perfected the “wheeling and dealing” and “black political arts” necessary to govern the chamber. In this case, he resorted to having the Senate adjourn in August 1958 without voting on either the Jenner bill or the House bill. When Russell, also a parliamentary virtuoso, threatened to sabotage an appropriations bill, Johnson agreed to hold votes on two toothless anti-Court measures—but not H.R. 3 or the Jenner bill.
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Yet, South Carolina Senator Strom Thurmond, a right-wing firebrand, wasn’t interested in acquiescing, and he vowed to offer H.R. 3 as an amendment to every bill unless the Senate considered the Jenner proposal. Johnson agreed to a vote, which his side promptly won 49-41.
After a year of legislative combat, the pro-Court camp appeared to finally prevail.
But then Illinois’s liberal senator Paul Douglas made a tactical blunder by introducing a measure praising the Court. This gave new life to the anti-Court forces, who not only defeated Douglas’s measure, but also won a vote to bring H.R. 3 up for consideration.
The Senate plunged into pandemonium. Eager to lock in their advantage with a final, substantive vote on H.R. 3, Jenner’s camp began screaming—“Vote! Vote! Vote!”
To halt their momentum, Johnson delayed the proceedings for 24 hours.
He used every trick in the book to peel off the bill’s supporters—coaxing senators into absenting themselves, warning senators that backing H.R. 3 would stop other measures they cared about, pairing senators opposing the bill but unable to vote in person with senators in favor of the provision (then a common practice which kept the latter group of senators from voting).
Eventually it looked like the two camps would end up tied.
So Johnson went to work on Utah Republican Wallace Bennett. The idea of flipping a staunch Court critic from the opposing party may have seemed fanciful to most. But not to Johnson, a leader so commanding that a Senate aide recalled how, even in the middle of a roll call, “You would see votes changed right in front of your eyes.”
Johnson leveraged Bennett’s wish to see Vice President Richard Nixon, who was presiding over the Senate, become president by convincing the Utahn that forcing Nixon to break the tie would damage his chances in the 1960 election. After hours of stalling, Bennett succumbed to Johnson’s entreaties. “When all the black magic had wrought its wonders,” reported Rowland Evans on Johnson’s wizardry, the anti-Court forces lost 40-41.
Despite their reprieve, the justices were left shaken by all the criticism. “I may have been the instrument… for decreasing the standing of the Court,” Justice William Brennan wrote to colleague Felix Frankfurter.
Frankfurter and his fellow conservative, John Marshall Harlan, switched positions in three subsequent anti-communist cases by siding with the government’s crackdown. Further, chastened by the backlash, the Warren Court, for the next four years with rare exceptions, maintained the status quo on a broad array of issues. It took changes to the Court’s composition and the political climate to free the justices to resume their pathbreaking trajectory. By the early 1960s, the Senate had become overwhelmingly Democratic and first President John F. Kennedy, and then Johnson staunchly championed the Warren Court.
In the face of the recent threats to circumscribe the judiciary’s powers capped off by NORRA, the Roberts Court has also appeared to yield to its sister branches in several high-profile cases. In Trump v. CASA, the justices acquiesced to the president’s calls to curb nationwide injunctions. In dissent, Justice Sonia Sotomayor accused the majority of not being brave enough to protect the rule of law. “Today, the Court abdicates its vital role in that effort. With the stroke of a pen, the President has made a ‘solemn mockery’ of our Constitution…. Rather than stand firm, the Court gives way.”
While it’s impossible to know for sure what has motivated the justices, history suggests that Sotomayor’s interpretation may well be correct, revealing the complex dynamic among the three branches of government.
Michael Bobelian is a journalist who has written about the Supreme Court, legal affairs, and history for the Washington Post, Los Angeles Times, Forbes.com, and other publications. His most recent book is Battle for the Marble Palace: Abe Fortas, Earl Warren, Lyndon Johnson, Richard Nixon, and the Forging of the Modern Supreme Court.
Made by History takes readers beyond the headlines with articles written and edited by professional historians. Learn more about Made by History at TIME here. Opinions expressed do not necessarily reflect the views of TIME editors.
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