On January 27, Justice Stephen Breyer, the most senior justice of the United States Supreme Court, announced his retirement from the court at the beginning of October. During the announcement, Justice Breyer held up a pocket copy of the United States Constitution and stated “People have come to accept this Constitution, and they’ve come to accept the importance of a rule of law.” Textualist interpreters would rightfully note the irony in Breyer’s statements, as he has played an active role in reshaping the constitution according to his activist interpretation to suit radical policies, rather than judging the document according to how it was written. But Breyer’s statement highlights a deeper issue: that the Supreme Court is often rooted more in the rule of politics than in the rule of law. While recent vitriolic battle over appointments has made this more apparent, the U.S. Supreme Court has been a political institution almost since its inception.
Initially deemed by Alexander Hamilton as the least dangerous of the three branches of government, the Supreme Court first emerged as a political institution through the 1801 case Marbury v. Madison. The justices faced the task of determining whether to force James Madison to deliver a commission as justice of the peace for William Marbury, one of John Adams’ midnight appointments, which Madison had refused to deliver. Chief Justice John Marshall wrote the majority opinion, ruling that the court did not have original jurisdiction in Marbury’s case, striking down a section of the 1789 Judiciary Act that expanded the jurisdiction of the court outside of constitutional stipulations. This established the power we now know as “judicial review” through which legislative and executive actions are subject to judicial scrutiny. With this establishment of this power, Marshall managed to preserve a veneer of impartiality by avoiding a seemingly partisan judgment on Marbury’s case. However, the establishment of judicial review also arguably marked the beginning of the Supreme Court’s entrance into the political arena, with justices having a de facto ability to strike down or even make laws from the bench.
56 years later, Chief Justice Roger Taney would make this sinister ability apparent in his opinion in Dred Scott v. Sandford. Even prior to the case, some hoped for the court to resolve the issue of slavery in the United States, and so included provisions in the Compromise of 1850 to ensure appeals on the matter went before the court. The key moment came when Dred Scott sued for his freedom on account of living with his master in a state where slavery was prohibited. While representing Scott, Montgomery Blair thoroughly cited the writings of the Founders that illustrated the power of the federal government to restrict slavery, and that masters who had taken slaves to free states in the past had been made to free them, proving Scott had both the law and precedente on his side.
Unfortunately for Dred Scott, Chief Justice Taney was both from a slave owning background and had tremendous animus toward the abolitionist movement. Moreover, Taney was keen to use his power of judicial review to settle the slavery problem permanently. Chief Justice Taney stated in the majority opinion that, not only did Congress not have the power to regulate slavery, but created an argument out of thin air that blacks were never intended to be and could not be United States citizens. Taney’s attempt to use the court as a political arbiter caused the already simmering tensions concerning slavery to boil over, contributing to the worsening crisis that led to the Civil War.
In the succeeding decades, the court has continued to prove itself a highly political institution, with its judgment often depending on the philosophy of the justices on the bench. This political judgment has been made readily apparent by social decisions handed down by the court, such as in Griswold v. Connecticut and Roe v. Wade. In each of these cases, the court handed down judgments not at all grounded in the rule of law, but certainly grounded in the rule of politics. As a matter of fact, legal scholar John Hart Ely once said of Roe that the case “sets itself a question the Constitution has not made the Court's business” while legal scholar Laurence Tribe concluded “the substantive judgment on which [Roe] rests is nowhere to be found.” Indeed, as the historical decisions of the court make clear, the Supreme Court has always been a consistently political institution, even if pretenses exist which declare such to be untrue.
Behavior by both the legislative and executive branches concerning the court also firmly establishes the Supreme Court as a political, rather than unprejudiced legal institution. Shortly after Chief Justice Taney’s death in 1864, Abraham Lincoln quickly saw fit to nominate Salmon Chase as his replacement, a man whose philosophy was precisely the opposite of Taney’s concerning slavery. In 1937, Franklin Roosevelt's proposed court packing scheme may have encouraged the formerly hostile court to begin accepting his New Deal legislation. While Congress has been slower to acknowledge the political nature of the court, the increasingly partisan nomination hearings, beginning with the rejection of Robert Bork in 1987, are testament that the legislative branch has also come to realize that court’s position as an additional legislative conduit.
While the Founders certainly did not plan for the Supreme Court to become another partisan engine, it nonetheless has manifested in such a way throughout the majority of its existence. Whatever the court was intended to be, it has all too often acted as a largely unaccountable oligarchy, able to overturn and establish law under the cover of judicial review and dress these questionable interpretations with colorful legal language that makes vague reference to the law. Unfortunately, whatever reform might be implemented to hold justices accountable for presumably partisan rulings would in and of itself likely amount to partisan activity.
In 1804, amid allegations of partisanship, Associate Justice Samuel Chase was impeached with the encouragement of President Thomas Jefferson, in no small part because he perceived Chase favorable to the Federalist Party. Chase was eventually acquitted by the Senate in 1805, and no federal judge has since faced impeachment on partisan grounds since. Thus, much as it might be wished that judges who issue blatantly activist rulings could be held accountable, it is almost certain that setting such a precedent would invite a flurry of impeachments against judges who rule contrary to the perspective of the party in power.
Ironically, in the absence of a viable formal system of accountability, the best solution would seem to be a modified version of the screening technique so often employed by Democrats who hope to appoint activist judges to the court. Yet, rather than screen justices by willingness to bend and reshape the law, textualists must instead examine candidates to ensure a consistent application of the laws by candidates as they are written, and be unafraid of rejecting judges who do not pass muster. While Democrats have generally seen fit to offer substantial resistance to originalist appointments, Republicans seem to be reluctant to do so, with Justices Ginsburg and Breyer receiving majority approvals of 96 and 87 votes respectively despite their activist leanings. If the originalist interpretation of the Constitution is to be preserved, Conservatives must take a similarly unyielding approach to judicial confirmations.