In the swirling days since what I suppose we should just call The Leak, a significant theme has been the argument that the Supreme Court has grown deeply politicized. But there never existed a golden age when the court was anything else.
To call the court politicized is to make two separate charges: First, that partisans have successfully packed it with those who will vote a particular ideological line; second, that the justices themselves, busily pursuing ideological agendas, consider the political implications of their work.
Neither is new.
Demanding a court full of ideological conformists is a long-standing American tradition. Pick any era you like.
In 1811, when President James Madison nominated Joseph Story as chief justice, Federalists howled with dismay. They feared he’d dismantle the legacy of his predecessor, John Marshall, who had done much to expand the powers of the federal government. (As it turned out, they needn’t have worried.)
After the execrable pro-slavery decision in Dred Scott v. Sandford, the anti-slavery politician William Seward promised to reorient the court’s “political sentiments and practices” so as to “bring them into harmony with the Constitution and the laws of nature.” During the Civil War, the party’s anti-slavery wing eagerly awaited the death of the ailing Chief Justice Roger Taney, Dred Scott’s author. Mindful that the great post-bellum legal issue would be the fate of the freed slaves, they hoped that President Lincoln would select a dedicated abolitionist in Taney’s place.
When Taney died in 1864, Lincoln fulfilled their hopes, choosing Salmon P. Chase and, in the process, cementing his support from the radical wing of the Republican Party — and ridding himself of a potential rival. (Speaking of political motives.)
A year earlier, Lincoln had become the first president to nominate a justice from the opposing party — but that practice remains a rarity. During the 20th century, some 90% of judges appointed to the court were of the same party as the president. Some years ago, a friend of mine was offered a federal appellate judgeship. When he asked nervously whether he’d have to meet an ideological litmus test, he was told, “Well, we’d at least want to know if you voted for the president.”
Nevertheless, litmus tests have been a feature of history. Franklin Roosevelt appointed eight justices, each of whom he believed would ardently support the New Deal. Richard Nixon promised to appoint only “strict constructionists.” Ronald Reagan ran largely against Roe.
The Supreme Court’s awareness of the politics of its decisions also has a long history. One need only peruse the voluminous scholarship detailing the court’s sometimes ornery negotiations over language (can’t be too harsh!) and even timing (can’t be too rushed!) in the series of school desegregation cases that culminated in Brown v. Board of Education. Chief Justice Earl Warren’s caution to his colleagues during the wrangling over Brown itself has gone down in history: “(T)he opinions should be short, readable by the lay public, non-rhetorical, unemotional and, above all, non-accusatory.”
A prescient warning — but, certainly, a political one.
And let’s not forget the behind-the-scenes politicking that produced Roe v. Wade itself. After the case was argued but before a decision was handed down, two justices retired. Chief Justice Warren Burger sought to have the case argued afresh so that their successors might weigh in. Justice William Douglas, a strong abortion rights supporter, saw the delay as a ploy to change the outcome. He issued a threat: “If the vote of the Conference is to reargue, then I will file a statement telling what is happening to us and the tragedy it entails.” The audience for Douglas’ “telling” was obviously the world; the threat was that he’d draw political attention to the court’s internal processes.
Burger refused to assign the opinion to Douglas, the most senior justice. Instead he chose Justice Harry Blackmun — some think in the hope that the public would more readily accept an opinion authored by one of Nixon’s aforementioned strict constructionists.
Blackmun himself was concerned about how the decision in the abortion case would be received. His contemporaneous notes display a keen awareness of the political moment. He wondered whether the “mandate” — the actual implementing order from the court — should be postponed to allow state legislatures to adopt new statutes.
Do justices have agendas? Of course they do — including the great Earl Warren himself, who later wrote that he took his seat animated by the notion that the court should prevent “the dominant group in a nation” from “pressing for further domination.”
We could go on and on, from justices accused of tempering their work because they had political ambitions to justices who sought advice from beyond their walled garden in drafting their opinions — including a 1945 dissent by Justice Hugo Black that was crafted with the editorial assistance of … the author of an amicus brief in the case.
I am not defending the current court’s politicization. Nor do I think that politicization justifies the leak, which I consider an outrage. I write to remind us politicization has long been the status quo. Given the scope of authority the justices exercise, any other history would be a surprise.
(Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall.)
