Has the Supreme Court Just Got “Political”? God, no – it’s always been like that
The Supreme Court is and always has been a political institution. That would be self-evident were it not for the myth that has been built around America’s most important judiciary. This aura has begun to dissipate – a recent survey by Monmouth University found that more than half of Americans disapproved of the court’s recent performance – but it remains strong enough that people take Chief Justice John Roberts seriously when he deplores the Supreme Court’s alleged politicization. Before his retirement even Judge Stephen Breyer published a book He urged Americans to return the Supreme Court to its supposedly lofty and apolitical roots.
Now that the judges are obviously willing to accept Roe v. to fall Wade, Those who insist (or imagine) that the Supreme Court must somehow remain above politics have become even more vocal: pro-choice advocates argue that the forthcoming decision proves the Supreme Court has strayed from its constitutional mandate while the anti-abortion contingent insists their argument is unassailable, as judges are above politics – and the alleged tidbit has damaged the institution immeasurably.
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These arguments are almost astounding in their historical ignorance. For one thing, the drafters of the Constitution said essentially nothing about the mission of the Supreme Court, simply referring to it as “a Supreme Court.” The Judiciary Act of 1789, passed during the first year of George Washington’s presidency, specified what the court would do, including allocating six members (one chief justice and five associate justices; this number was officially expanded to nine in 1869) . For more than a decade, however, the court took on few cases and did very little. The executive branch had proved strong under Washington, and Congress was quick to take on various legislative roles, but the judiciary was initially unclear about how much power it really held.
Chief Justice John Marshall understood something important: the appearance of shedding partisanship would serve to legitimize more partisan decisions going forward.
Politics has changed that. After losing to Thomas Jefferson in the 1800 presidential election, John Adams decided to bolster the judiciary with members of his Federalist Party to keep Jefferson’s Democratic Republicans from imposing their agenda. However, some of the judges’ commissions were handed over before Jefferson’s inauguration, and believing that this would nullify their appointments, the new president instructed Secretary of State James Madison not to hand them over. One of those appointees, Maryland businessman William Marbury, sued Madison, claiming his appointment was legitimate and the government should have an obligation to enforce it.
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Marbury probably believed that Chief Justice John Marshall, who was also a Federalist, would approve of his case; If so, he misjudged Marshall’s ability to play the long game. Apparently more concerned with enhancing his own power than helping his political party, Marshall authored the landmark 1803 ruling, which agreed with Marbury that Madison’s actions broke the law, but added that the law in question was itself unconstitutional and therefore unconstitutional not valid. This set the precedent that the Supreme Court could strike down laws it felt were unconstitutional – also giving rise to the notion that the court was above politics.
Except it absolutely wasn’t. What Marshall understood was that appearing to cast aside partiality would help legitimize the court’s future decisions — even if they were overtly partial. (It is likely that the Roberts Court ruling, which preserved the Affordable Care Act, played a similar function, although it disappointed many conservatives.) In Marshall’s case, this meant that the Federalist Party remained relevant long after Washington and Adams’ party had disappeared. Prospective judges sought to uphold the mantle of legitimacy bestowed by Marshall, even as they used it for very different purposes.
Consider the most notorious Supreme Court decisions of the 19th century: Dred Scott v. Sanford in 1857 and Plessy v. Ferguson in 1896. In the first of these, the court ruled that an enslaved Missouri man named Dred Scott could not claim it was freed when his owners took him to Illinois and the Wisconsin Territory, jurisdictions where slavery was illegal. In his ruling against Scott, Chief Justice Roger Taney, a self-confessed white supremacist, found that people of African descent “were not included under the word ‘citizen’ in the Constitution and were not meant to be” and as such had no rights. (As salons Keith Spencer recently remarkedIs it conceivable that people seeking abortions would face similar legal problems in states after Roe’s fall.)
The court went a step further, ruling that the Missouri Compromise — an 1820 legislative treaty intended to limit the spread of slavery in newly added states or territories — was unconstitutional. Of course, the judges claimed that this decision was based solely on legal issues, but the historical consensus is that it was politically motivated. New President James Buchanan, who supported the southern slave-owning aristocracy despite being from Pennsylvania, pressured the court to side with the pro-slavery faction and likely heard of the decision from Taney in advance.
After the election of Franklin D. Roosevelt, the politically motivated tendency to “find” reasons for the unconstitutionality of economic laws went into overdrive.
Politics again trumped law in Plessy v. ferguson, the court had to decide whether Louisiana had violated the 14th Amendment by separating railroad cars. Since the amendment stated that white and black Americans were equal before the law, it created a logical conundrum. But the judges, apparently motivated by a desire not to alienate white supremacists, dodged that reasonable argument, noting that shelters could be “separate but equal.” the lonely dissenter, John Marshall Harlan, evoked the blatant political logic:
Everyone knows that the law in question arose not so much from excluding whites from black-occupied cars as from excluding colored people from white-occupied or assigned cars. Louisiana railroad companies did not discriminate against whites in accommodating travelers. Under the guise of equal treatment for whites and blacks, the aim was to force the latter to keep to themselves during the journey in railroad cars. No one would be open enough to claim the opposite.
While decisions upholding racial discrimination are the most obvious examples, the policy has influenced numerous other Supreme Court decisions as well. While the Republican and Democratic parties have in many ways swapped places as “liberal” or “conservative” formations since the 19th century, both have largely supported a social consensus that favors the interests of business over those of workers. It seems clear that when judges are appointed by politicians (in this case, nominated by the President and confirmed by the Senate), their philosophies are likely to be shaped by politics. The Supreme Court has a long history of making decisions unfavorable to unionization or working people, even when presented in neutral-sounding legal language.
For example, the Lochner v. New York in 1899 a law setting maximum working hours for bakers overturned on the grounds that it violated the right to freedom of contract; this supposed right reappeared in 1923 when the court repealed a minimum wage for women in Adkins v. Children’s Hospital. (Incidentally, that ruling came under Chief Justice William Howard Taft, a former President. That’s the only time a former president has served on the Supreme Court, though Taft’s successor as Chief Justice, Charles Evans Hughes, was a former Republican presidential nominee.)
After the election of Franklin D. Roosevelt in 1932, the politically motivated search for grounds for unconstitutional laws governing business operations went into overdrive. There were four Supreme Court justices who clearly detested FDR’s policies and were determined to sidestep his agenda as briefly as possible. Nicknamed “the Four Horsemen,” judges Pierce Butler, James Clark McReynolds, George Sutherland and Willis Van Devanter saw themselves as ideological crusaders on a mission to overthrow a president they perceived as a dangerous socialist.
Roosevelt attempted to solve the problem in 1937 through what is now called “trials” — specifically, adding a new judiciary whenever a current one was past age 70, but refusing to retire. We’ll never know if that actually made the Supreme Court any less political, but in case the Roosevelt plan was blown up. His only consolation came in the form of an inexplicable change of heart from Judge Owen Roberts, who had previously opposed the New Deal but voted to maintain Washington State’s minimum wage in the West Coast Hotel Co. v. Parrish case. This invalidated Roosevelt’s court composition plan – and reinforced the entirely fictional notion that the Supreme Court was, or at least should be, above politics.
Yet not much the court has done since Roosevelt’s era has made this notion more plausible than it did before 1937. In 2000, it installed George W. Bush as president in a 5-4 ruling that could not have been more overtly partisan. A decade later, in Citizens United v. FEC, conservative Supreme Court justices managed to both oppose Hillary Clinton and assert that corporate campaign spending was effectively political speech and could not be regulated under the First Amendment .
More recently, of course, the Supreme Court confirmation process has become the focus of Machiavellian politics, largely because of Senate Republican leader Mitch McConnell, who refused to consider Barack Obama’s nominee in 2016, arguing that it was a Election year, but Amy pushed through Coney Barrett’s 2020 nomination just days before Joe Biden’s election. Add to that the firestorm that surrounded Brett Kavanaugh’s confirmation in 2018, and it’s almost bizarre that anyone can pretend the court wasn’t steeped in politics. Of course, these three Donald Trump-nominated judges created the conservative supermajority that led to Roe’s almost certain overthrow. This may make the court appear more political than ever – but appearances are not the same as historical reality.
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