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Re-Politicize the Supreme Court

For most of its history, the nation's highest court was a highly partisan affair. It should be again.

In modern American politics each death or retirement of a Supreme Court justice seems to result in a mass wailing, with the threat that a new balance of power could upend the righteous legitimacy of the high court. This fear is an unhealthy, but predictable side effect of treating an assortment of judges like they were apolitical seraphs, hovering above the rest of our elected, mortal government.

This divine treatment, where the Supreme Court’s decisions are the thread that the republic hangs on, is a sensational departure from its humbler origins. There is a reason why Article III of the U.S. Constitution was given the least attention by the framers, and why in the Federalist No. 78 Alexander Hamilton refers to the judiciary as “the least dangerous” of the three branches. “It may truly be said to have neither force nor will, but merely judgment,” Hamilton wrote.

“When John Jay was offered a second appointment as Chief Justice [in 1795], he turned it down because he’d rather be the Governor of New York, which was a higher office at the time,” said Professor Kevin Gutzman of Western Connecticut State University, and author of The Politically Incorrect Guide to the Constitution. 

The Supreme Court may have examined constitutional arguments and provided legal pronouncements, but it was considered as mundane and open to error as any other public office. Neither were nominations to the court cause for controversy. The process of an appointment typically took one day, with the only sticking point being whether the nominee would acquiesce to accepting such a banal duty. The first Senate judiciary hearings on Supreme Court nominees didn’t even occur until 1916. 

This lackadaisical perception of the court began to change with Brown v. Board of Education in 1954. Endowed with a theory of judicial activism and an attitude to propel societal change, the court struck down racial segregation in public schools, something that never could have originated in that era’s Congress. Stepping into the role of transcendent moral arbiter, in the following decades the Supreme Court announced far-reaching decisions that typically overturned democratic mandates on issues such as freedom of association, the death penalty, abortion, public prayer, and most recently, marriage. 

“This whole model that we live under, more or less, would have been completely foreign to the people who made the Constitution,” Gutzman told The American Conservative. “They weren’t fighting the revolution for government by unelected and unaccountable Harvard and Yale Law School graduates.”

Inversely, as the court became more involved in creating law, its image became less partisan. Justices shed their associations with the Republican and Democratic parties. Aspirants to the highest court are expected to stay out of electoral politics, lest they be seen as too rigid or sectarian to be nominated. Instead, judges facing a Senate committee swear allegiance to all court precedent, and it’s up to observers to cipher what they actually think on burning policy issues.

“Nowadays we expect their personal behavior to be more or less apolitical,” Gutzman said. “On the other hand, we expect their judicial behavior to be just rampant legislation if they’re of that disposition. That’s where the real divide has come to be.”

Out of 114 men and women appointed to the U.S. Supreme Court, 35% have had prior experience as a member of Congress, a state governor, or a member of the president’s cabinet. Out of the justices appointed to the court prior to 1950 and the swing towards apolitical activism, the number rises to 47%. 

These were men who were selected, in part, because they had a known track record of ideological loyalty to their party, and who affirmed that they shared the constitutional outlook of the president who nominated them. “When Chief Justice Jay…resigned his office, he wrote a letter to President Washington saying that his chief goal as Chief Justice had been ‘the success of your administration.’ So people didn’t draw the same kind of lines between the executive and judiciary as we do now,” explained Gutzman. 

Examples of this are legion. 

As arguably Andrew Jackson’s most steadfast subordinate, Roger B. Taney served as Old Hickory’s secretary of war, attorney general, and finally secretary of the Treasury. In that final post, Taney helped Jackson craft his bank veto message, and delivered the blow that killed the Second Bank of the United States. For this, Jackson made him Chief Justice, where he served for almost three decades. 

Taney’s replacement was Salmon P. Chase, who before the Civil War had been one of the most outspoken anti-slavery Republicans. Acting as Abraham Lincoln’s secretary of the Treasury, having already been elected as Ohio’s governor and then senator, Chase was nominated to the Court not in spite of his outspoken beliefs, but because of them.

James F. Byrnes built a 45-year career in politics as a stalwart Democrat. He was a close advisor to both Franklin Roosevelt and Harry Truman, and would eventually serve as the latter’s secretary of state on top of being elected both governor and senator from South Carolina. For his good works, Roosevelt nominated Byrnes to the Supreme Court in 1941, a position he only served in for 15 months before resigning at Roosevelt’s behest so he could become America’s economic czar during World War II.

Eyebrows weren’t even raised when justices dabbled in presidential politics. Sitting members of the court, Levy Woodbury in 1848, John McLean in 1856 and 1860, and David Davis in 1872 all sought and failed to receive the presidential nomination of their respective parties. In 1916 Charles Evans Hughes resigned from the Supreme Court to accept the Republican presidential nomination; following his defeat, he was later renominated and served as the Chief Justice. His predecessor at that post, of course, had been William Howard Taft, who had successfully entered the White House. The most recent example is 1948, when Democratic Party officials implored Justice William Douglas to wrestle the nomination from incumbent Harry Truman; Douglas pleaded disinterest.

Contrast this with the experience of modern justices. Byron White briefly served as Deputy Attorney General. Sandra Day O’Connor was a state senator in Arizona. And Clarence Thomas chaired the Equal Employment Opportunity Commission. Even Robert Bork’s nomination was rejected by the Senate because as onetime Acting Attorney General he was too close to the toxicity of the Nixon White House. These are pittances compared to their predecessors.

On Saturday, President Donald Trump nominated Amy Coney Barrett to succeed the late Ruth Bader Ginsburg. While Barrett does break the Harvard-Yale duopoly—she’s a graduate of Notre Dame—her supporters are heavily relying on her Catholicism to postulate how she’ll vote in the future. The parallel has already been drawn to current Chief Justice John Roberts, whose 2005 nomination was partially predicated on the social conservative credentials of his private life, but who became at best a fair-weather friend to the right.

If conservatives and constitutionalists are ever going to succeed in reversing the court-dictated, left-wing social engineering projects of the last half-century, then they must stop nominating to the court judges whose opinions require tarot cards to read. That means selecting individuals with years of incontestable public statements, who lean into their conservative credentials, not away from them. Senators Mike Lee and Ted Cruz fit that bill, and were incorporated into President Trump’s recent shortlist.

Their names were included as a courtesy, but they ought not have been. The Supreme Court, a branch which pretends to be above the mud of electoral politics while simultaneously designing the country’s most divisive changes in law, must have its false sanctimony torn down. And that means adding legislators to the mix. 

Buck modern propriety. Bring back historical norms. Nominate a Republican. 

Hunter DeRensis is Assistant Editor at the Libertarian Institute and a regular contributor to The American Conservative. You can follow him on Twitter @HunterDeRensis.