The Supreme Court Has Always Been Political

We can and should dismiss the calls from Mitch McConnell, numerous members of Congress, and every Republican presidential hopeful for President Obama not to nominate a new Supreme Court justice to replace the late Antonin Scalia.
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US Supreme Court building, Washington DC, USA.
US Supreme Court building, Washington DC, USA.

We can and should dismiss the calls from Mitch McConnell, numerous members of Congress, and every Republican presidential hopeful for President Obama not to nominate a new Supreme Court justice to replace the late Antonin Scalia. Yet even if we ignore those partisan voices, other more objective perspectives have similarly questioned the politics of nominating a justice in an election year. An NBC News piece, for example, began by asking: "Should President Barack Obama, in his last 10 months in office, be allowed to appoint a justice who would likely create a liberal majority on the Supreme Court?"

Legal scholars and political historians have begun responding to such questions by noting the relatively frequent occurrence of Supreme Court nominations and confirmations during election years. Yet while such specific parallels do offer precedent for this moment, focusing on them also implicitly reinforces the notion that Supreme Court appointments more broadly have been less tied to political concerns or events. A notion, in turn, that ties into our collective narratives and ideals of the Supreme Court as something outside of, or at least distinct from, political debates and conflicts.

It is not. In fact, that's quite literally never been the case.

In September 1789, on the same day that the Judiciary Act passed Congress, President Washington nominated the six justices to serve on the first Supreme Court. For Chief Justice, he chose John Jay, one of the leaders of Washington's Federalist Party and one of the chief advocates of the Constitution and a strong federal government throughout the founding period. Washington's other five nominees, including John Rutledge who would succeed Jay as the second Chief Justice six years later, were likewise staunch Federalists and allies of the president.

Although that early Court did not hear nearly as many cases as would subsequent ones, those first decisions reflect its political make-up and perspective. In Chisholm v. Georgia (1793), for example, the court ruled 5-1 that federal courts had the power to supersede states' "sovereign immunity" and hear disputes between citizens and the states.

The case and decision were so controversial that they led directly to the first post-Bill of Rights Constitutional Amendment, the 11th, which when ratified in early 1795 reasserted the states' sovereign immunity to federal court decisions.

The Court's first reorganization, less than a decade after Chisholm, was even more overtly tied to partisan and electoral politics. In the aftermath of the hotly contested presidential election of 1800, President John Adams and a lame duck Congress passed the Judiciary Act of 1801, which reduced the number of Supreme Court Justices from 6 to 5 and instituted a number of other sweeping changes to the federal judiciary that would benefit the current President's party, and disadvantage the incoming one. Although the act passed only 19 days before Thomas Jefferson's inauguration, Adams and Congress filled as many open judgeships as possible, leading to the act's popular nickname, the Midnight Judges Act.

The legacy of this controversial act and period extended into the Court's first truly significant decision, Marbury v. Madison (1803). In that decision, Chief Justice John Marshall, who had been appointed by Adams in the aftermath of the 1800 election, famously established the concept of judicial review (the Court's power to rule on the constitutionality of Congressional laws). But he also, and more specifically and politically, ruled against President Jefferson and his Secretary of State, James Madison, limiting their power over the judiciary in the process.

Like so many Supreme Court decisions, then, Marbury was thus about both the Constitution and political contests. Supreme Court Justices, from the first Chief Justice down to the late Antonin Scalia, are at once legal and a political figures. That's the multi-layered history and legacy of the Supreme Court, and a 2016 Obama nomination would simply echo and extend it.

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