The Supreme Court Wasn’t Always All-Powerful
When it comes to injecting partisan politics into the judiciary, Amy Coney Barrett’s rushed confirmation is a whole new level of meddling
Want to see the power of a Supreme Court Justice on full display? Just turn on your television, where several United States Senators — no slouches themselves in the power department — are willing to risk their health, and possibly their lives, in order to confirm one.
This week, Lindsay Graham, chair of the Senate Judiciary Committee, refused to take a Covid-19 test despite exposure to the coronavirus, because a positive result would have delayed a confirmation hearing for Judge Amy Coney Barrett. Mike Lee, a Utah Republican, attended the hearing after just 10 days of quarantine following a positive diagnosis, rather than the 14 days mandated by the Centers for Disease Control and Prevention. (He produced a doctor’s note declaring him symptom free, but not a negative test.) At-risk Senate Republicans, such as 87-year-old Chuck Grassley or 68-year-old John Kennedy, could have called for a postponement to a hearing until their safety could be ensured. Instead, they appeared in person, determined to fill Ruth Bader Ginsburg’s seat before the November elections.
As a purely political calculation, it’s hardly surprising that senators would go to such great lengths to shift the Court in their ideological favor. A majority-clinching Supreme Court seat is arguably the most valuable prize in American politics, perhaps even more so than the White House itself. But it wasn’t always this way. The judiciary has far more power than our Founders intended or imagined, the result of an implicit bargain between judges and the elected officials who nominate and confirm them. Now, that bargain may be fraying — and the health of our democracy itself may be at risk.
When the Constitution was ratified, the judiciary was, in theory, one of three co-equal branches of government. In practice, not so much. After devoting about 2,000 words to the role of lawmakers and more than 1,000 to that of the president, the Framers gave judges just 375. If you visit the National Archives and examine the original Constitution kept there, you’ll even notice that the S in “Supreme Court” isn’t even capitalized. In fact, on February 1, 1790, the very first day of the Court’s inaugural term, half the judges were missing. The very first action taken by the highest court in the land was to cancel a meeting due to lack of attendance.
Even after the Court began hearing cases, the judiciary remained a kind of Constitutional afterthought. America’s first Chief Justice, John Jay, spent his entire tenure eyeing a run for Governor of New York State, which he rightly considered a far more influential position. Today it’s assumed that Justices will serve until they retire, or in many cases die. But in 1795, after just five years, Jay quit the bench to launch his gubernatorial campaign.
The story American students are generally taught about judicial power is that in 1803, eight years after Jay’s departure, Chief Justice John Marshall overturned a federal law in Marbury v. Madison. This established the concept of “judicial review,” which gave the Court the ability to interpret the Constitution and the power it’s enjoyed ever since. But this version of the Court’s history is so oversimplified as to be essentially false. As Yale Law Professor Akhil Amar points out in America’s Constitution: A Biography, after the Marbury decision, the Marshall Court overturned plenty of state laws but never again overturned a federal law. The early Supreme Court wasn’t a check on Congress on the White House. It was a check on the states. (In fact, the second time the Court overturned a federal law wasn’t until 1857’s Dred Scott v. Sanford, widely considered among the most disastrous decisions in the judiciary’s history.)
As justices’ lifespans increased and their tenures increased with them, each new appointment became more consequential.
In addition to the shared understanding that the Court was meant to defer to the legislative and executive branches, the Court’s power was limited by “appellate jurisdiction,” which determines the kinds of cases that are heard in different Courts. Today, the judiciary is a single pyramid, with the Supreme Court at the very top. But for much of American history, the judiciary contained multiple pyramids, with different Courts at the top of each. The Justices were powerful individuals. But they were far less powerful than they are today.
Yet from inauspicious beginnings, the judiciary was slowly and steadily transformed into the mighty branch of government it is today. In some ways this was due less to the virtues of judges than the vices of politicians. As partisanship increased across America, with its attendant pettiness and nastiness, the judicial branch’s reputation for independence from politics elevated it in the public esteem. When Chief Justice Marshall clashed with President Andrew Jackson in Worcester v. Georgia, he wrote a careful decision to avoid provoking the White House into disregarding the Court’s opinion. Within a few decades, the roles were reversed; for a White House to ignore the Court would be considered not just wrong but almost dictatorial.
Along with this unofficial rebalancing of power between branches, the Court’s official authority expanded as well. In 1891, Congress surrendered its control over appellate jurisdiction, granting the Court the right to review any federal case it pleased. In 1925, justices were also given the right to refuse to hear any case they didn’t want to.
Yet even this recounting of the Court’s rise to power is too simplified, overlooking clashes that took place between the elected and unelected branches of government. Early in his first term, President Lincoln expanded the Court to 10 Justices, in part to help secure a favorable ruling in a crucial case that decided the constitutionality of the Civil War. In 1937, FDR’s court-packing plan failed to expand the number of Supreme Court seats, but pressured conservative justices to abandon their obstruction of key New Deal programs. (Roosevelt also expanded pensions for former justices, encouraging some conservatives to retire.) But despite these temporary setbacks, the judiciary’s accumulation of power continued. In fact, as justices’ lifespans increased and their tenures increased with them, each new appointment became more consequential. For the most part, Americans accepted judges’ ever-growing influence. So long as the judiciary was seen as independent from party politics, it could, in theory, be trusted with vastly more power than the Founders had granted it.
In recent decades, however, the judiciary has failed to keep up its end of the deal. Beginning in the 1970s, conservative donors began investing in law schools and in organizations like the Federalist Society, hoping to create a new type of jurisprudence that more closely mirrored the Republican Party’s political goal. Those same donors turned judicial confirmations into something, in the words of Federalist Society Vice President Leonard Leo, “more like political campaigns,” with ads bombarding key states. In turn, conservative judges have reshaped electoral politics through decisions like Bush v. Gore, which decided the winner of the 2000 election; 2010’s Citizens United, which allowed wealthy donors to pour virtually unlimited money into their political activities; Shelby County v. Holder in 2013, which gutted the Voting Rights Act; and Rucho v. Common Cause in 2019, which allowed state legislators to draw nakedly partisan districts without having to worry about interference from federal courts.
Yet when it comes to injecting partisan politics into the judiciary, Amy Coney Barrett’s rushed confirmation is a new level of meddling. The president himself says he’s counting on his Court majority to declare him the winner of the election, yet Barrett refuses to say she’d recuse herself from election cases if confirmed. Meanwhile, it seems likely that in just three weeks, the Republican Party will suffer one of the most sweeping electoral rebukes in history — and that despite this, on issues ranging from health care to women’s rights to climate change to economics, the Court will allow the conservative movement to pull the country in the opposite direction from the one the American people choose.
Republican senators are set to break precedent, speed records, and CDC guidelines to ram through Amy Coney Barrett’s nomination. Yet in the long run, their eagerness to seize the judiciary as a political prize may diminish its value. After all, the judiciary’s prominence in American life wasn’t laid out by the Framers; instead, it’s part of an implied trade-off, a reward for independence from politics. History shows us that there are plenty of versions of the Court that are far less powerful than the one we have today. And if the Court reneges on its bargain with the American people, the American people are under no obligation, Constitutional or otherwise, to keep up their end of the deal.