The Supreme Court Used to be Openly Political. It Traded Partisanship for Power

As Republicans push to confirm President Trump’s pick to fill Ruth Bader Ginsburg’s seat on the Supreme Court before the election, and Democrats counter with threats to expand the court if the party wins power, Americans overwhelmingly favor keeping the court “out of politics.” Public opinion polls show that the justices get high marks for public trust when people believe the court is acting apolitically. This dynamic played out just last term, when Chief Justice John G. Roberts Jr. received widespread praise for joining the liberal justices in several important cases. Court watchers described him as an “institutionalist” who cares about preserving the court’s legitimacy. These decisions showed Roberts to be the most powerful justice since the 1930s, with the ability to shape judicial doctrine for generations. 

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.

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.