The Supreme Court Has Never Been Apolitical
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.
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.
