The Supreme Court Has Never Been Apolitical

Popular dissatisfaction with the Supreme Court today is rooted in a fundamental belief that justices should be apolitical actors — neutral umpires who just call “balls and strikes.” If the Supreme Court were to devolve into just one more political institution, in an age of extreme partisanship and polarization, the fear goes, the guardrails supporting our Constitutional system would fall away.

It’s not an unreasonable concern. But the idea of an apolitical court is a fairly recent development. For the better part of American history, the U.S. Supreme Court was a much more partisan and political institution than we remember. The justices who sat on its bench were once and future elected officials, advisers to presidents and even presidential aspirants themselves. From John McLean and Salmon P. Chase in the 19th century to William O. Douglas in the 20th, justices often kept a wandering eye on the White House. Abe Fortas had a direct phone line to the president of the United States and even wrote some of his speeches. Justices also accepted outside income and affiliated with third-party interest groups.

Whether the U.S. Supreme Court should keep politics at a far distance is one question. Whether it historically did is another.

In the early republic, as the framers of the new government labored to translate into practice the theoretical governing foundations they outlined in the Constitution, the Supreme Court was not understood to be removed from politics. The nation’s first chief justice, John Jay, served as a close political and legal adviser to former President George Washington. He also served simultaneously on the court and as ambassador to Great Britain, in which capacity he negotiated a major peace treaty between the two nations. John Marshall, the chief justice who famously arrogated to the court the prerogative of judicial review — a right not delineated in the Constitution — was active in Federalist politics both nationally and in his home state of Virginia throughout his tenure on the bench.

To be sure, members of the court implicitly acknowledged that each branch of government was independent from the others. Although John Jay frequently provided political and policy counsel to Washington, when Thomas Jefferson, then serving as secretary of State, asked him to respond to 29 questions surrounding the legal implications of the Napoleonic wars, Jay demurred, arguing that as the judiciary and executive branches were “in certain respects checks against each other, and our being judges of a court in the last resort,” there were “strong arguments against the propriety of our extra-judicially deciding the questions alluded to us.” Otherwise put, Jay and his fellow justices were happy to weigh in on politics and policy. But they would not opine on the legality of their counsel in advance of potential lawsuits.

From the nation’s founding through the mid-20th century, there was no expectation that justices remain aloof from partisan politics. Men (no women served on the court until Sandra Day O’Connor in 1981 — more on her in a moment) moved fluidly between Congress, statehouses and the Supreme Court. John P. Rank, a legal historian who spent months combing through the official and personal papers of Associate Justice John McLean concluded that “there was no day between his appointment in 1829 and his death in 1861” that McLean, a former member of Congress, “was not aspiring to be someone’s choice at the next Presidential election.”

The same was true of Salmon P. Chase, who served as governor of Ohio, United States senator and Treasury secretary under Abraham Lincoln. Chase was, according to Carl Schurz, a contemporary who served in the Senate and cabinet, “possessed by the desire to be President even to the extent of honestly believing that he owed it to the country and the country owed it to him.” That ambition did not abate after Lincoln appointed Chase to the position of chief justice. Even while serving on the bench, he continued to seek the presidential nomination. He was hardly the last sitting Supreme Court justice to aspire to the White House. As late as 1948, Justice William O. Douglas, who had actively sought the vice-presidential nomination four years earlier, flirted with a movement to draft him in replacement of incumbent Harry Truman, whose political fortunes were then lagging.

Today, the Supreme Court is populated by career law professors and jurists. But until very recently, politicians moved fluidly between elected office and the court, and back again. Jimmy Byrnes of South Carolina served as a congressman and senator from 1911 to 1941, then as a Supreme Court justice for a year and a half, then as secretary of State and subsequently as governor of his home state.

When the Supreme Court issued its landmark decision in the case of Brown v. Board of Education, four of its nine members were politicians, several of whom had never served on the federal bench: Chief Justice Earl Warren (a former governor of California); Hugo Black (a former senator from Alabama); Harold Burton (a former senator from Ohio); and Sherman Minton (a former senator from Indiana who subsequently served as federal appellate court judge).

As late as 1970, when former Supreme Court Justice Arthur Goldberg ran for governor of New York — or 1981, when Sandra Day O’Connor, a former state senator from Arizona, took her seat on the court — it was standard for people to move fluidly between judicial service and elective office. The notion that justices should be political saints, innocent of partisanship, would have been considered odd, if not risible.

Not all justices were politicians, but many of them remained close to the presidents who appointed them in ways that would be considered wildly inappropriate today. In the 19th century, Chief Justice Roger Taney continued to serve as a close adviser to Andrew Jackson well after his appointment to the bench, and David Davis — Lincoln’s close friend and campaign manager in 1860 — acted as a presidential adviser even as he served as an associate justice. (Davis would later resign from the court and win election to the U.S. Senate.) And this practice extended well into the 20th century.

Louis Brandeis remained a close adviser to Woodrow Wilson after his elevation to the Supreme Court, though he preferred to receive the president at his apartment in Washington, D.C., to avoid the appearance of political impropriety. William Howard Taft, a former president who was appointed chief justice in 1921, freely advised presidents Warren G. Harding, Calvin Coolidge and Herbert Hoover. Franklin Roosevelt continued to rely on Felix Frankfurter long after he appointed the veteran Harvard Law professor to the court in 1939.

No justice in the modern era bridged the divide between politics and the bench so shamelessly as Abe Fortas, whose longtime friend, Lyndon Johnson, appointed him associate justice to the court in 1965. Even as he sat on the court, Fortas remained an informal presidential adviser. When asked privately whether LBJ should have created a firewall between himself and Fortas, Harry McPherson, LBJ’s chief counsel, candidly admitted that “you couldn’t find a law professor in the United States who would recommend that kind of thing.”

The continued intensity of their relationship was extraordinary even by contemporary standards. LBJ went so far as to order a direct White House line installed in Fortas’ home and office, enabling the president to reach him at all times of the day. From Nov. 23, 1963, when he was in private practice, until early July 1968, when the president nominated him as chief justice, Fortas met with LBJ at least 145 times in person and spoke with him on countless occasions by phone. For three of those years, he was a member of the Supreme Court. As associate justice, Fortas violated a bright red line when he knowingly shared important information with the president concerning court deliberations and weighed in on matters of policy and constitutional law. In one case, he advised the administration on a matter involving the Interstate Commerce Commission’s approval of a railroad merger and then participated in a court case on the very same matter.

When Congress sent a stringent anti-crime bill to the president in November 1966, LBJ sought Fortas’ counsel. While FBI Director J. Edgar Hoover and Attorney General Nicholas Katzenbach advised the president to sign the measure, Fortas lent his backing to the White House staff, which was almost unanimous in its support of a veto. The justice believed that several provisions, including an anti-pornography title and extended authority to interrogate witnesses and suspects prior to an arraignment, were patently unconstitutional. He allowed that a section providing for mandatory sentences would likely survive judicial scrutiny, even if it was ill-advised. As usual, the president heeded Fortas’ advice. The associate justice drafted the veto message, which LBJ delivered verbatim.

Harry McPherson would later recall a moment late in evening on July 24, 1967, when rioters in Detroit had exhausted the capabilities of Michigan’s state police and national guard. He entered the Oval Office, only to find Fortas, then an associate justice, polishing a draft of the president’s televised address to the nation, in which Johnson would announce the deployment of military personnel to restore order in Motor City. McPherson disagreed with the tenor of the draft, which he believed gave excess weight to framing the legal justification for sending troops at the expense of discussing the social and economic roots of urban riots. But he did not press the point. “I was intimidated by the stature and the brains and the judgment and the reputation and my own relationship with Justice Fortas,” he explained. “I was very much the junior man and although I would have argued with the President alone about it, I didn’t argue with Justice Fortas.”

Fortas didn’t last long on the Supreme Court. Republicans and Southern Democrats quashed his nomination as chief justice, largely out of opposition to his liberalism and Jewish heritage. But Fortas furnished conservatives with ample cause. He had entered into highly irregular business dealings with a Wall Street banker who later came under federal indictment. Their arrangement came with a $20,000 annual retainer for life. Although justices then and since accepted outside income, Fortas’ deal raised the possibility that he intended to intervene on the behalf of a wealthy benefactor. Faced with likely impeachment hearings, he resigned from the court.

The Fortas imbroglio fundamentally changed the way the Supreme Court projected its image, as well as the expectations Americans placed on the court. In the wake of his resignation, justices voluntarily agreed to new limits and disclosure obligations related to outside income. They stopped advising the presidents who appointed them to the bench. After Sandra Day O’Connor, no former elected official was named to the bench.

But is the court apolitical?

Several of its members think so, and they deeply resent implications to the contrary. Justices Samuel Alito and Amy Coney Barrett recently struck back at critics who believe the Supreme Court has become another weapon in America’s political wars. In a speech she delivered at the University of Louisville’s McConnell Center, named for Sen. Mitch McConnell, who held a Supreme Court seat vacant for 11 months to deny Barack Obama the opportunity to fill it, Barrett said: “This court is not comprised of a bunch of partisan hacks. Judicial philosophies are not the same as political parties.”

And yet, the public thinks otherwise. The controversy over Virginia Thomas is but the latest in a series of events that have led many Americans to view the court as an instrument of raw political power, rather than a disinterested arbiter of the law. Politicians bear much of the blame: highly charged confirmation hearings, Mitch McConnell’s power play to deny former President Barack Obama the opportunity to fill a vacancy in 2016 and his subsequent decision to move a nominee through the confirmation process after millions of voters had cast ballots in 2020, discussions of enlarging the court — all contribute to the mounting conviction that the court is a partisan asset.

The justices also bear responsibility. The conservative majority’s aggressive use of the shadow docket to make and break laws has reasonably led many Democrats and independents to wonder if the court now functions as a blunt instrument to accomplish for Republicans in the courtroom what they cannot achieve through the legislative process.

For the better part of its existence, the Supreme Court was a political institution, populated by men and women who were politicians, political advisers and politically motivated actors. Today, if polls are to be believed, few people — other than a few of the justices currently serving on the bench — seem to believe that the court is a neutral arbiter of the law. Americans from across the political divide regard the court as a political body that wraps ideology in legal garb.

There is a reasonable concern that the Supreme Court might lose its legitimacy if a majority of Americans come to perceive the institution as of, not above, politics. If the justices are simply a blunt instrument in our partisan wars, they can’t be fair arbiters of the law.

But maybe that’s not a bad thing. You can’t address a problem until you acknowledge it exists. We have pretended over the past 50 years that the Supreme Court is an apolitical institution. It never really was, and it isn’t today.

https://www.politico.com/news/magazine/2022/04/03/the-supreme-court-has-never-been-apolitical-00022482