The Supreme Court Has Always Been a Hot Political Mess
By Brendan Wilson
Furor over the Supreme Court’s recent activism has sunk its approval rating to 43%. Many, including Justice Sonia Sotomayor, have accused it of rolling in the filth of politics. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she asked during the Dobbs hearing that would eventually overturn Roe. The implication is that over-politicization could cost America’s highest court its legitimacy.
The inconvenient truth is that the Supreme Court has always been a hot political mess, presided over by partisan actors handing down decisions consistent with the ideology of the party responsible for their seat.
It is true that the stench of politics permeating Washington has grown slightly more pungent since Republican high jinx parlayed a vacant Scalia seat into a conservative supermajority.
And it is true that the founders never intended the Supreme Court, our least representative body, to possess the political teeth of the other two branches. In Federalist 78, Alexander Hamilton argues that the judicial branch is the least likely of the three to imperil the political rights promised in the Constitution because it has “neither the force nor the will but merely judgement." In other words, it lacks the sword of the executive branch and the purse of the legislative.
Unfortunately, it is also true that the high court began to sprout political teeth even before Hamilton cashed in his chips on a field in Weehawken. From our nation’s earliest days, the business of governing the Republic was a full contact game of power politics in which the Supreme Court happily participated.
Take for example the court’s most consequential actor, Chief Justice John Marshall. A proud leader of the Federalist party, he served both in Congress and as John Adams’s Secretary of State before taking his place on the bench. Two years into his tenure he handed down the Supreme Court’s most historic decision, Marbury v. Madison (1803), which granted the Supreme Court the power to strike down federal and state laws that violate the Constitution. This vast expansion of federal authority, found nowhere in the Constitution, was consistent with the Federalist party platform and anathema to the rival Democratic Republicans.
A few decades later, Salmon P Chase served as Ohio’s Governor and as Abraham Lincoln’s Treasury Secretary before he became Chief Justice in 1864. The fingerprints of the anti-slavery and pro-union views that characterized his political tenure can be found on several of the critical opinions he authored, including Texas v. White (1969), which established the United States as “an indestructible union” and rendered secession unconstitutional. Chase was so transparently political that he sought the Republican nomination for president in 1868 while still serving as Chief Justice.
Earl Warren was California’s governor before he was chosen as Chief Justice in 1953. He directed the Supreme Court through the “Constitutional Revolution,” a multi-decade liberal tear which saw landmark cases such as Brown v. Board of Ed (1954) and Loving v Virginia (1967).
But what of the other two branches' tendency to manipulate the court for political gain? As it turns out, there is a long history of that too.
“His Rotundity” John Adams, the Republic’s first partisan president, pounded the Midnight Judges Act through Congress in his final days in office. The act, among other things, reduced the number of Supreme Court seats from 6 to 5, a less than subtle attempt to blunt the influence of his successor and rival party leader, Thomas Jefferson.
A few years later, Jefferson ally John Randolph orchestrated impeachment proceedings against Federalist Supreme Court justice Samuel Chase on the grounds that he was obnoxiously political. During the proceedings, Chase was chastised for his tendency “to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partizan."
In an episode eerily reminiscent of the Merrick Garland affair, unpopular president Millard Fillmore was gifted an open seat during the election year of 1952, but the Senate, which his party did not control, refused to call a hearing until after the election.
The most stunning judicial double-cross came in 1866, when Andrew Johnson tried to fill a court vacancy, but was so hated by Congress that it moved to shrink the size of the court to deny him the opportunity. The number of seats was adjusted back to 9 in 1869, where it stood undisturbed until FDR threated to pack the court in retaliation for conservative obstruction of several New Deal initiatives. Taking the threat seriously, Justice Owen Roberts flipped his vote to the liberal camp to uphold a Washington state minimum wage law in West Coast Hotel Co v. Parrish (1937). The sidestep was dubbed the “stitch in time that saved nine.”
So, reports of the court’s recent over-politicization are greatly exaggerated. Sadly, it has always been this way. I realize that perspective is hardly balm in the liberal wounds opened by the reversal of Roe, the expansion of the 2nd Amendment, and the limitations placed on the EPA’s authority. But encouragement can be found in the way America is responding to these unpopular decisions.
Kansas, a state that voted for Trump by a 15-point margin, rejected a state constitutional amendment that would have made abortion illegal. In a NY congressional special election held last week, Democrat Pat Ryan, who campaigned solely on abortion rights, pulled off an upset victory over his Republican challenger. Finally, the Supreme Court shot down an expansive reading of the decades old Clean Air Act. Congress responded in August by passed climate legislation.
Recent Supreme Court shenanigans has led to a conservative supermajority that does not reflect the ideological balance of the country. While this destabilizing imbalance is unfortunate, the political maneuvers that led to it are certainly not unprecedented, and while the country continues to respond to the court's decisions democratically, rather than through outright nullification, the court must still be considered a legitimate institution operating within a functioning government.
To borrow Churchill's words, "Democracy is the worst form of government, except for all the others." Self-rule is messy, but it works, and I wouldn't trade it for the "stability" of Poland Russia, or China.
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