Modern American society takes for granted a non-partisan Supreme Court. Politicians and activists on both sides of the aisle, when debating the Supreme Court and its justices, inevitably raise the point that the Supreme Court has always been and ought to remain non-partisan. Politics and parties, they argue, have no place in the American Supreme Court. To sully the Supreme Court with politics would be a disservice to the institution, and weaken the Court for the future.
However, these assertions are not matched by the political history of the Court. From the middle of the 19th century to the middle of the 20th century, Justices and other judicial officials frequently ran for elected office or even president. In fact, during the election of 1868, the first presidential election after the end of Civil War, the Democratic political establishment sought to nominate the sitting Chief Justice. The Democratic nominating convention was a political – and logistical – nightmare, as it took 22 rounds of voting before anyone won the nomination. The man who ultimately received enough votes to be nominated, Horatio Seymour, wanted to turn it down in favor of Chief Justice Salmon Chase (who had sought and failed to get the Republican nomination for president). Chief Justice Chase, however, was not a faceless judge in Washington; rather he was the chair of the Ohio delegation – far from a non-partisan position. Moreover, before he was Chief Justice, Chase served as President Lincoln’s Treasury Secretary and held elected office; in other words, Chief Justice Chase was no stranger to American politics. In one of the most important elections in US history – the first where the South could vote – establishment Democrats sought to nominate the Chief Justice, even as the Court, through Dred Scott and other decisions, helped plunge the country into the war.
Perhaps one of the most famous politicizations of the Court failed, namely FDR’s attempt to “pack the Court” during the Great Depression. However, this was not the first time a President attempted to use Court appointments to change case outcomes. Occurring during Reconstruction, President Grant found himself at odds with the Supreme Court over the issue of the constitutionality of the Legal Tender Act, which allowed for government-issued non-bullion backed paper bills. The Court in Hepburn v. Griswold, declared the act unconstitutional. However, soon after the case, President Grant had the opportunity to appoint several justices. The very next year, President Grant brought the issue back to the Supreme Court, which overturned Hepburn v. Griswold. It is hard to believe that at least some form of informal quid pro quo did not occur.
Seeing as the Court has never truly existed as a non-partisan entity, we, as historian-citizens, should be critical of politicians that claim to want a non-partisan Court. It seems the American system was not designed to create such a Court. Rather, we should be diligent in demanding that our elected representatives not seek non-partisanship, but seek in nominating and confirming a Court that understands its own political history.