By: Chris Danforth
Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.
In recent weeks and months, members of the Supreme Court have defended the institution against growing calls that it is an extension of partisan American politics. These public statements come as a response to claims that the members of the court have jettisoned normal order to achieve political ends, have embraced open political goals, and have worked hand-in-glove with extreme partisan groups while serving on the Court. However, the Supreme Court has long been a political entity, with positions in its marble halls doled out as a reward to politically connected attorneys and judges whose politics, positioning, and past work have caused their star to rise. Any serious candidate for President will have a list of potential nominees (or has had a list provided to them by a partisan organization), and will even campaign on the promise or potential of nominating a new Justice to the Supreme Court.
At the time of this publication, the Supreme Court of the United States is comprised of three liberal justices (nominated by Democratic presidents), and six conservative justices (nominated by Republican presidents). Of those six conservative justices, Justice Samuel Alito and Chief Justice John Roberts were nominated by President George W. Bush, and Justice Clarence Thomas was nominated by President Ronald Reagan. The remaining justices (Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney Barrett) were nominated by President Donald Trump.
The Trump nominations of Gorsuch and Barrett seemed, at first blush, historical anomalies due to the openly political nature of their Senate confirmations (Justice Kavanaugh’s confirmation was also memorable but was less historically notable, as he was – of course – not the first Supreme Court nominee to be credibly accused of sexual assault and may in fact find commiseration with his now-colleague Justice Thomas in that fact). However, a broader look at the history of the court reveals that the political nature of the current nomination process – and the Court in general – may not be the historical outlier that it first appears.
In the 1800s, legal adviser Roger Taney hitched his cart to Andrew Jackson’s political horse, a move that eventually paid great career dividends. Taney – most infamous for his authorship of the Dred Scott holding – originally served as Jackson’s Acting Treasury Secretary. President Jackson appointed Taney to this role after firing then-Treasury Secretary Duane for refusing to withdraw the Federal government’s deposits from the national bank. Taney carried out Jackson’s wishes and withdrew the funds, a move that functionally dissolved the National Bank. Jackson then officially nominated Taney to serve in his cabinet as the full Treasury Secretary. The Senate rejected Taney’s nomination, making Taney the first Cabinet nominee to have their nomination rejected by the Senate. After this rejection in the Senate, Jackson then nominated Taney to the Supreme Court, where he was confirmed and served for a number of years.
History tends to repeat itself in interesting ways. In 1987, President Reagan nominated a circuit judge named Robert Bork to the Supreme Court. Prior to his tenure as a circuit judge, Bork served as the Solicitor General and Saturday Night Massacre hatchet man to the disgraced President Nixon. However, Bork’s nomination was voted down, with the largely Democratic opposition in the Senate citing his role in the Saturday Night Massacre as being a major disqualifying factor.
This brings us back to the current Court. After the death of Justice Antonin Scalia, then-Senate Majority Leader Mitch McConnell refused to bring then-President Obama’s nomination for the seat (Judge Merrick Garland) to a vote for the better part of a year, a wholly unprecedented move at the time. After winning the Electoral College (but losing the direct election by 3 million votes), President Trump was then able to hand his own nomination (Judge Neil Gorsuch) to McConnell, who then confirmed Gorsuch to the Supreme Court.
Ever the opportunist, after the September 2020 passing of Justice Ginsburg, Senate Leader McConnell was reportedly on the phone with President Trump within hours, promising to fill the spot before the November 2020 election. Citing a fabricated historical precedent to proceed with a vote, Senator McConnell secured the votes to place now-Justice Barrett on the Supreme Court just days before the 2020 election.
It is a soothing thought to view a nomination to the grandiose halls of the Supreme Court as the crowning achievement in the career of an even-handed and level-headed adjudicator. However, a clear-eyed look at the history of the Court shows a process rife with political ambition and partisan intrigue. It’s time that we openly acknowledge that the Supreme Court has been and always will be an inherently political institution. Calling it by its name won’t fix anything on its own, but at least it will be honest.