The court’s authority, built on the notion that it will act outside of politics, has expanded to include power over major elements of American democracy — including determining the outcome of presidential elections. Because the justices have accrued so much power based on an apolitical posture, Americans are increasingly boxed in by the idea that the court must remain above politics, even as the nomination and confirmation process becomes more and more partisan. That dynamic may not be sustainable for much longer. But if the court becomes more openly political, it’ll be returning to the way it once worked for more than 100 years — only with vastly more power than it had before it wrapped itself in the mantle of non-partisanship.
Nineteenth-century Americans were deeply partisan, and they understood that the Supreme Court would be, too. Although justices were expected to follow the law in their judicial determinations, there were no clear limitations on partisan politicking outside the courtroom. Public trust in the court did not rely on justices claiming to be apolitical; Americans were far more concerned about limiting judicial power, period. Public concerns about the court becoming “political” materialized only when justices began to accrue more constitutional authority in the first few decades of the 20th century. Early Americans would have recognized the kinds of partisan political conversations we are having about the court today — but they would have been shocked to discover how much power we have given the judiciary over our democracy.
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Although most Americans today assume that the Supreme Court should have the final say in constitutional matters — what the political scientist Keith Whittington calls “judicial supremacy” — few believed that in the nation’s early years. Judges were trusted to handle legal disputes fairly, but the court’s power to determine constitutional meaning was never secure. Instead, as the historians Gerald Leonard and Saul Cornell have recently argued, by the early 19th century, most Americans believed that the people, operating through partisan mechanisms, were the ultimate arbiters of constitutional authority.
So partisan fidelity — not legal ability — was the primary consideration in presidents’ Supreme Court appointments. A significant majority of 19th-century justices were chosen because of their previous partisan allegiances: Most nominees had served in federal, state or local political positions.
Senate majorities often declined to confirm or even take up nominations by presidents from an opposing party. Of the 23 failed nominations in the 19th century, only seven were rejected by a friendly Senate, and of these, four were the casualty of intraparty squabbles. When the Senate refused to give Democrat Roger Taney a hearing in 1835, it wasn’t for fear that President Andrew Jackson was politicizing the Supreme Court — it was simply because they opposed Jackson.
John Tyler holds the record for most unsuccessful nominations by any president (eight), primarily because he had no partisan coalition in Congress. James Buchanan might have had more success in securing a seat for Jeremiah Black on the court had he put his nomination forward in December 1860, before Lower South Democrats left the Union, but by February 1861, a politically hostile Senate did not even consider Black.
Justices who were confirmed had many opportunities to boost partisan efforts outside the courtroom. Some of these existed behind the scenes, where justices exchanged policy ideas and even ghostwrote congressional legislation for partisan allies in Congress. Associate Justice Joseph Story worked with his Massachusetts colleague Daniel Webster on the latter’s most famous Senate speeches and helped him craft a national bankruptcy act. Those who knew of the relationship made no cries of a conflict of interest.
Associate Justice John Catron served as one of James Polk’s unofficial campaign managers during the 1844 election season while conducting his regular duties on the court: He lobbied members of Congress and strategized with state allies to put his fellow Tennessean on the ballot at the Democratic convention. Once Polk secured the nomination, Catron opened his Nashville house for entertaining political supporters and drafting campaign strategy. Congressional opponents did not complain about the justice’s political involvement; instead, they tried to influence Catron to sway Polk’s policy proposals.
Political networking was, in many ways, built into the very fabric of the judiciary. Until 1911, Supreme Court justices were required to “ride circuit” as part of their duties: For months at a time, they traveled from town to town to sit as federal circuit judges. At each location, the justices worked with federal district judges and a small community of lawyers — men who often held important legislative positions in their states and cities. These postings tended to last at least a week, during which the judge would take up lodging among the litigants, spending evenings after court chatting over drinks.
State and local lawyers also became key allies for any justice considering a run for the White House. From the 1830s to the 1890s, about a quarter of the justices flirted with presidential campaigns. Partisans courted justices as potential nominees, and ambitious members of the court obliged. Justice John McLean of Ohio was a candidate in every presidential election from 1832 to 1860 (representing nearly every political party of the era). On circuit, McLean found some of his most trusted political partners — both among the state and local legislators who tried cases in front of him in their day jobs as lawyers and among the federal district judges who sat with him. Circuit courts were perfect meeting grounds to compare notes and plan campaign strategy.
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Only when voters came to believe that the justices had exceeded the judicial branch’s authority did the court become a target for reform. Critics came from across the political spectrum — states’ rights Jeffersonians in the 1820s, Republicans in the late 1850s, Democrats in the 1860s — and featured a wide range of proposals, including requiring supermajorities in cases involving the states, altering the number of justices, reorganizing circuits and especially stripping the courts of jurisdiction over certain types of disputes. Each of these moments also featured public outcry against a court exceeding its proper authority, rather than a broad critique of justices as political actors. In the debates about court reform in the 1860s, for example, no one mentioned that Chief Justice Salmon Chase was openly attempting to capture the Democratic presidential nomination. Chase’s politics and judicial authority weren’t thought to be in conflict.
But by the late 19th century, this configuration started to change. Congress increasingly granted the court more authority by adding jurisdiction over civil suits arising from questions of federal law or the Constitution, eliminating circuit riding and giving justices the power of certiorari — the ability to determine their own docket. Bolstered by a friendly political atmosphere, the court began to seize even greater authority, although not without some resistance. Key to that transformation was former president William Howard Taft, now serving as chief justice, who used his political acumen to secure a robust expansion of judicial power in the Judiciary Act of 1925.
At the same time, judges — and lawyers more generally — had begun to promote the idea that the law existed outside of politics, insisting on uniform codes of conduct and ethics. This new apolitical posture did not create an end to justices’ political activity, but it did change the relationship between politics, public trust and judicial authority.
Over the past 75 years, the court’s insistence that it operates “outside politics” has increased; justices no longer join the court from partisan political positions, instead primarily arriving through the ranks of federal circuit courts. Not since Arthur Goldberg’s nomination in 1962 has a president selected a sitting politician. Potential justices often try to obscure their ideologies and play up their apolitical qualifications — most famously when Roberts insisted in his 2005 confirmation hearing that justices are mere “umpires” calling “balls and strikes.”
Meanwhile, Congress has continued to expand judicial power both in granting constitutional authority and administrative capacity. Lawmakers and presidents punt on thorny political issues, publicly declaring that the courts should decide. And by playing up the “umpire” posture of the court, Roberts and his colleagues have ingrained this power in a way that makes congressional reform by either party seem politically motivated.
All of this gives a false impression that the court has always held public trust by operating outside of politics, especially as today’s partisans accuse one another of sullying the judiciary with electoral concerns. But the court spent more than a century as a partisan creature, one with far less power than it has today. Maybe in our era of intense polarization, Americans will once again come to accept a more political court — and start to demand that Congress take back some of the constitutional authority it has yielded to the judicial branch.