When Congress Defunds the Courts
How Restructuring the Federal Judiciary Has Shaped—and Shaken—American Democracy
Throughout American history, Congress has wielded significant power over the structure and function of the federal judiciary. Under Article III of the Constitution, Congress has the authority to create, alter, and even abolish lower federal courts, as well as limit their jurisdiction and control their funding. While this power is constitutional, its use has sometimes caused significant political upheaval, undermined judicial independence, and reshaped the public’s trust in the federal courts.
In light of modern calls to “defund the court” or limit judicial oversight when courts block executive actions, it’s worth revisiting how similar moves played out in the past. This article walks through some of the most significant episodes where Congress restructured or defunded parts of the federal judiciary—and the consequences that followed.
The First Blow: Repeal of the Judiciary Act of 1801
In one of the earliest and most dramatic assertions of congressional power over the courts, Thomas Jefferson’s Republican Congress repealed the Judiciary Act of 1801—passed just months earlier by outgoing Federalists under John Adams. That act had expanded the judiciary, adding new circuit courts and judgeships, which Adams quickly filled with loyal Federalist appointees (the infamous “midnight judges”).
When Jefferson took office, he and his allies saw this as a partisan attempt to entrench Federalist power in the judiciary. In response, Congress repealed the act in 1802, abolishing the new courts and effectively removing the judges—despite their Article III lifetime appointments.
Impact: This move, though upheld by the Supreme Court in Stuart v. Laird (1803), created an early constitutional crisis. It set a precedent that Congress can eliminate courts—and with them, judgeships—if the courts themselves are dissolved. It also deeply politicized the judiciary and triggered debates over the balance of power between the branches of government.
Reconstruction Power Plays: Shrinking the Supreme Court and Stripping Jurisdiction
During the tumultuous years after the Civil War, Radical Republicans in Congress clashed with President Andrew Johnson over how to rebuild the South. To prevent Johnson from appointing sympathetic justices, Congress reduced the size of the Supreme Court from 10 to 7 in 1866 through the Judicial Circuits Act. This change meant that Johnson could not make any new appointments.
Just a few years later, after Ulysses S. Grant won the presidency, Congress increased the number of justices to nine, re-establishing the size of the court—but only after ensuring a Republican president would make the appointments.
At the same time, Congress used its power to limit judicial oversight during Reconstruction. In Ex parte McCardle (1869), Congress stripped the Supreme Court’s jurisdiction over habeas corpus cases involving military detentions in the South—specifically to stop the Court from potentially overturning the Military Reconstruction Acts.
Impact: These moves successfully protected congressional Reconstruction policies but at a cost. They showed that Congress could—and would—use its structural power over the courts to win political battles. The judiciary, meanwhile, was left walking a political tightrope, cautious not to trigger a full-blown confrontation.
Pragmatic Reform: The Judiciary Act of 1891
Not all restructuring efforts were overtly political. The Judiciary Act of 1891, also known as the Evarts Act, was a thoughtful response to an overburdened federal system. It created the U.S. Courts of Appeals and eliminated the old circuit courts, streamlining the appeals process and relieving pressure on the Supreme Court.
Impact: This restructuring demonstrated Congress’s ability to use its constitutional powers constructively. It improved judicial efficiency and helped shape the modern federal court hierarchy, earning widespread support from judges, lawmakers, and the public alike.
The Rise and Fall of the Commerce Court (1910–1913)
The Commerce Court was a short-lived judicial experiment designed to review decisions made by the Interstate Commerce Commission. However, the court quickly gained a reputation for favoring big business and undermining regulatory efforts. After public outrage and the impeachment of one of its judges for corruption, Congress abolished the Commerce Court in 1913.
Impact: Congress’s move to dismantle the Commerce Court was one of the few times it fully eliminated a federal court after 1802. It reassigned the sitting judges to other courts, respecting their tenure but eliminating their specific roles. The episode reinforced the idea that courts too aligned with narrow interests—or seen as obstructive—could lose political and public support.
FDR’s Court-Packing Plan (1937): An Attempt That Failed
In the depths of the Great Depression, President Franklin D. Roosevelt became increasingly frustrated by a Supreme Court that kept striking down key New Deal programs. His solution: add a new justice for every sitting justice over 70, potentially expanding the Court to 15 members.
Though constitutional, the plan faced fierce bipartisan opposition and ultimately failed in Congress. However, shortly afterward, the Court began upholding New Deal legislation—a shift dubbed “the switch in time that saved nine.”
Impact: While Roosevelt didn’t succeed in restructuring the Court, his effort sparked national debate over judicial independence. The public pushback showed that even in times of crisis, Americans valued an impartial judiciary over short-term political gain.
Jurisdiction Stripping During the Civil Rights Era
As the Supreme Court under Chief Justice Earl Warren expanded civil rights, criminal protections, and civil liberties, some lawmakers in Congress pushed back. From the 1950s through the 1980s, there were serious proposals to strip federal courts of jurisdiction over controversial issues like school prayer, abortion, and busing.
None of these efforts ultimately passed, but they reflect a recurring theme: when courts hand down unpopular decisions, some in Congress look to defund the court—either by slashing its budget or removing its authority over specific topics.
Impact: These efforts rarely succeeded, but they did increase political pressure on the judiciary and sparked debates about the proper scope of judicial review. The fact that most of these bills failed helped preserve the independence of the courts, even during politically fraught times.
The Reagan Era: Cutting Judicial Funding and Limiting Remedies
During the 1980s, President Ronald Reagan and congressional allies took a more subtle approach to limiting the courts—slashing judicial budgets, denying cost-of-living raises for judges, and restricting the remedies courts could impose in desegregation and prison reform cases.
Impact: While not as dramatic as eliminating courts or stripping jurisdiction, these measures served as quiet but effective ways to curb judicial activism. They also served as a warning: Congress doesn’t have to abolish a court to diminish its influence—it can simply defund it.
Lessons from History: The Cost of Politicizing the Judiciary
Every time Congress has used its power to reshape or defund the federal courts, it has left a mark. In some cases—like the Judiciary Act of 1891—those changes were beneficial and broadly supported. In others—like the repeal of the 1801 Act or the failed court-packing scheme—they ignited constitutional crises and damaged public trust.
While Article III gives Congress the authority to “ordain and establish” lower courts, the long-term health of American democracy depends on how that power is used. When wielded wisely, it can modernize and strengthen the judicial system. When used as a partisan weapon, it can destabilize the delicate balance between the branches of government.
Conclusion: Be Wary of Calls to “Defund the Court”
Calls to “defund the court” are not new. They are part of a long history of political frustration with judicial decisions. But history also shows that undermining the judiciary—whether by abolishing courts, stripping jurisdiction, or slashing budgets—can have lasting consequences.
The courts are not perfect. They are made up of humans, subject to the same political winds and cultural pressures as the rest of society. But they are also the last line of defense for constitutional rights and the rule of law. Weakening them for short-term political gain may satisfy a temporary agenda—but it risks eroding the very foundation of American democracy.
