A historian argues that the Supreme Court's claim to be above politics, while wielding immense power over the Constitution, rests on a fairly recent conception of American government, and that early Americans would have been entirely unsympathetic to the court's claim to be the final arbiter of constitutional interpretation.
Rachel Shelden, a historian at Penn State and author of The Political Supreme Court: A Forgotten History, dismantled the court's image as being entirely apolitical in an interview with Legal AF.
"The court was designed to be a political institution, and it operated as a political institution for 100 years," Shelden said.
She contended that the notion of justices being above politics only emerged in the late 19th and early 20th centuries and gradually became the accepted view of the Supreme Court.
"But for the first 100 years, people would have been horrified by the idea that the Supreme Court got to have the ultimate authority over the Constitution," she said.
That doesn't mean the early court had no authority to decide cases or to interpret the Constitution. Instead, constitutional interpretation used to be part of a much wider political discourse involving all the branches of power and ordinary Americans, rather than something simply within the justices' scope.
She was also skeptical of the idea that the court today can be cleanly divorced from the politics of the day.
She described the court's modern judicial identity as "a way for the court to pretend as though it is separate from politics" and referred to the current partisan divisions on the bench.
Shelden’s examples included Chief Justice John Marshall, who was very much in the political arena prior to his appointment to the court and, for a very short time, continued on as secretary of state after he became chief justice.
Shelden said Marshall also defended his judicial decisions in the public sphere, including in newspaper exchanges over the national bank, which would be highly unusual for a modern justice.
"Nineteen of the first 51 justices were presidential candidates," Shelden said, referring to judges who didn't necessarily abandon their political affiliations upon taking office.
They would travel to regional courts, preside over trials and meet the sort of people whose lives were affected by their decisions. That practice declined as the federal judiciary grew and justices became increasingly removed from the day-to-day political life.
As she put it, "the court was political by design, but it was political in a different way from the way we think about it today."
Her argument is really about challenging the notion that the separation of the court from politics and its claim to ultimate constitutional authority were always fundamental to the American constitutional system. She's not challenging the court's right to interpret the law.
