Supreme Court justices are officially nonpartisan, and they do a good job of operating outside of electoral politics. They are neutral in that sense, but they do not deliver decisions in vacuums. That partisans favor certain decisions, and fight for the appointment of judges who will hand them those favored decisions, is a longstanding political reality.
Justice Ruth Bader Ginsburg’s death and the ensuing political storm it has created, as well as the storms we are likely to see develop well beyond Nov. 3, offer an opportunity to revisit the court’s history and to note that arguments about its function are anything but new.
Marbury v. Madison is generally recognized as the precedent that institutionalized judicial review, resulting in the court’s modern function. “The powers of the Legislature are defined and limited,” Chief Justice John Marshall wrote in the opinion of the court, “and that those limits may not be mistaken, or forgotten, the Constitution is written.” In other words, Congress cannot pass just any law it wishes.
“The judicial power of the United States is extended to all cases arising under the Constitution,” Marshall also wrote, a near-direct quote of Article III, Section 2, the article that created the Supreme Court. “Could it be the intention of those who gave this power, to say that in using it the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?” The answer is no.
A year and a half later, President Thomas Jefferson — his secretary of state, James Madison, was the defendant in Marbury — wrote to Abigail Adams: “But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislature and Executive also, in their spheres, would make the judiciary a despotic branch.” The “opinion” of the court’s function that Jefferson rued has certainly remained in practice.
In his first inaugural address, Abraham Lincoln said about the court, “The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” Does that sound familiar?
President Franklin Roosevelt, notorious for his plan to add justices to the Supreme Court for his own policy gains, said in 1937, “The Court in addition to the proper use of its judicial functions has improperly set itself up as a third House of the Congress … reading into the Constitution words and implications which are not there, and which were never intended to be there.” Roosevelt was no conservative, demonstrated by more than just his effort to expand the court, but his words are peculiarly similar to the refrains of conservative constitutional originalists.
Justice Owen Roberts wrote more approvingly of the court’s judicial review function in the majority opinion in U.S. v. Butler. “The Constitution is the supreme law of the land ordained and established by the people,” the opinion reads. “When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate the judicial branch of the Government has only one duty — to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.”
In a dissenting opinion in Griswold v. Connecticut, Justice Hugo Black argued that the excesses of judicial review make the court a kind of legislative participant, echoing Lincoln’s stated concern. “The use by federal courts of such a formula or doctrine or whatnot to veto federal or state laws simply takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom and transfers that power to this Court for ultimate determination.”
In short, the Supreme Court has disenchanted all, even its own members. Jefferson disapproved of Justice Marshall’s opinion, which was effectively a ruling against him. Roosevelt wanted more favorable rulings on his New Deal. Conservatives lament Roe v. Wade and Obergefell v. Hodges. Liberals dread Citizens United v. Federal Election Commission and Shelby County v. Holder.
It also enchants. For conservatives, Citizens United and Shelby County were victories. For liberals, Roe and Obergefell were momentous wins. The toss-up has political actors coming back for more. Considering the role of partisans in appointing and electing justices, the court’s character as the final arbiter ensures that it will remain the battleground it has been for more than 200 years.
