The Supreme Court Has Always Been Political

 The recent, vitriolic political battles over the composition of the Supreme Court have caused significant lamentation over a body previously perceived as neutral. One of the fiercest defenders over the image and practice of an apolitical Court is Chief Justice Roberts. However, closer inspection reveals a dire truth: the Court has never been neutral.

During her confirmation hearing, Justice Amy Coney Barrett affirmed that she would fill her constitutional duties impartially.1 Barrett’s hyper-partisan confirmation hearing spurred pundits across the ideological spectrum to lament over a bygone era in which the High Court was removed from the political process. However, the simple truth is this: politics has always been part of the Court. The idea that the Supreme Court is a neutral arbiter of the law is extremely damaging to our discourse on the law. In reality, the Court has always been a political body, and there are no apolitical interpretations of the law.

Previously, the Court has long enjoyed an image that portrays the Justices as people whose political beliefs play no role in their decision making.2 However, beginning with the blockade of former President Barack Obama’s appointment of Merrick Garland in 2016, the narrative that the Court is growing increasingly susceptible to partisan power plays and the political tides is taking hold.3

Chief Justice John G. Roberts Jr. has been one of the most notable proponents of this image. As Chief Justice, Roberts has to maintain a delicate balance between his own ideological goals and the image and legitimacy of the High Court. Often lauded and lampooned in the media as a moderate, or even a swing vote, Roberts’ ability to make seemingly uncharacteristic decisions is not a result of legal philosophy, but rather a political balancing act.

It is clear that Roberts is deeply concerned over the image of the Court. Roberts famously stated during his confirmation hearing that his job as a Justice is to “call balls and strikes, and not to pitch or bat.”4 In response to the 2016 Merrick Garland incident, Roberts reaffirmed his position, commenting, “We don’t work as Democrats or Republicans and I think it’s a very unfortunate impression the public might get from the confirmation process.”5 This is partly because the legitimacy of the Court heavily depends on its image as neutral.

Consequently, legal commentators and citizens alike have fallen for this projection of neutrality. For example, Jeffrey Rosen, president and CEO of the National Constitution Center, wrote a piece for The Atlantic essentially applauding Roberts for his concern over institutional legitimacy and highlighting the times he voted with the liberals on key hot-button issues.6 His spurning of partisan accusations and his famous 2012 decision that saved the Affordable Care Act put hope in people’s hearts that Roberts could block the wave of legal conservatism.7 Other articles have openly speculated whether or not Roberts is actually a secret liberal.8 However, closer analysis of Roberts’ judicial record reveals a man who is neither a moderate or swing vote, but rather a deeply conservative ideologue. Throughout Roberts’ career, he has almost always sided with the most conservative of his colleagues in narrow 5-4 decisions.9 The number of times he sided with liberals that created his reputation for moderation were actually political decisions that advanced a partisan agenda under the guise of reasonableness.

The secret bully-pulpit the Court wields in its hands has only recently come to light. Some politicians have been able to see through the smokescreen of neutrality the Court presents and have advocated to take advantage of the Court’s political power — most commonly through proposals of court packing or other judicial reforms.10 However, much of our political discourse is still saturated with those mourning over a fictional, earlier version of the Court that applied known, ascertainable, objective standards to the facts of cases presented before it. In reality, the Court has always been political. Some scholars have even gone as far to assert that it is impossible to adhere to neutral principles in the constitutional adjudicative process.11

Take Bush v. Gore — the case that should have shattered the myth of the politically neutral Court. The case’s 5-4 ruling ended a Florida vote recount in the 2000 presidential election between George W. Bush and Al Gore.12 Not only did this case demonstrate just how overtly political the Court is capable of being, but it also represents a seminal point in American history. Bush v. Gore made it abundantly clear what control of the Court could accomplish. The Court exerts considerable political power over the other two branches of government. The Court can not only regulate Congress and the President, but it can determine who sits in those seats in the first place.

But it doesn’t stop at constitutional interpretation, and it doesn’t just begin in 2000. Since the Founding, politicians and partisans have considered weaponizing the Court’s ideological composition. Shortly after the Judiciary Act of 1789, which relegated six justices to the Court, the Federalists were the first to demonstrate the political potential of the Court.13 After the Federalists were defeated in 1800, the lame-duck Congress pared down the number of justices from six to five in order to curb the incoming Democratic-Republican President Thomas Jefferson from an appointment.14 That number was then repealed by the new, Democratic-Republican-controlled Congress.15 In 1807, Congress increased the size of the Court to seven to give Jefferson an additional appointment.

This usage of the Court only continued. In 1837, the Supreme Court was expanded to nine to allow the Democrat Andrew Jackson to add two additional appointments.16 During the Civil War, the Court was expanded to ten in order to ensure an anti-slavery, pro-Union majority on the bench. Following the assassination of Abraham Lincoln, a Republican Congress reduced the number of seats to seven in order to stifle Democratic President Andrew Johnson’s political power by ensuring he would have no appointments. In 1868, following the election of Ulysses S. Grant, Congress restored the Court to nine to give Grant two new appointments. Most recently, Franklin Roosevelt attempted to alter the size of the Court in order to neutralize Supreme Court justices hostile to his New Deal.

All of these attempts at controlling the Court point to an inherent aspect of having a Court inhabited by individuals — Justices will never be neutral. Certain provisions of the Constitution not only have varying meanings for Justices, but they also carry varying importance. Justices Black and Douglas have even proposed the possibility of a “priority of liberties” in the Bill of Rights.17 Different Justices have been observed, time and time again, to be more dedicated to their judicial duties when their most passionate issues were at stake. Facts in the cases that reach the Supreme Court do not simply speak for themselves. Choices must be made between competing sets of values in deciding which way a case will lean. Neutrality is unattainable in the constitutional adjudicative process.

Roberts and his perceived neutrality is a microcosm of a much broader issue with the way the Court is thought about and discussed. Court discourse now often relies on the presupposition that there exists a state of the Court and its Justices where decisions are made in a political vacuum.18 By recognizing the political fuel that drives the Court, discourse over its composition and its rulings can be done more accurately and transparently.

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1 Jemina McEvoy, “Amy Coney Barrett Says She Will Be An Impartial Justice In Opening Remarks,” Forbes (11 October 2020). 

2 Adam Liptak, “Supreme Court Says Judges Are Above Politics. It May Hear a Case Testing That View,” New York Times (16 September 2019). 

3 Sabeel Rahman, “The US supreme court has become a threat to democracy. Here's how we fix it,” The Guardian (24 September 2020). 

4 John G. Roberts Jr., “Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States,” Hearings before the Committee on the Judiciary, United States Senate, 109th Cong., (Washington D.C: U.S. Government Printing Office, 2005), at 55-56.

5 Adam Liptak, “John Roberts Criticized Supreme Court Confirmation Process, Before There Was a Vacancy,” New York Times (21 March 2016).

6 Jeffrey Rosen, “John Roberts Is Just Who the Supreme Court Needed,” The Atlantic (13 July 2020).  

7 Garrett Epps, “Will John Roberts Block the Triumph of Legal Conservatism?” The Atlantic (2 April 2019). 

8 Oliver Roeder, “Is Chief Justice Roberts A Secret Liberal?” FiveThirtyEight (27 November 2017). 

9 Aaron Belkin, “Chief Justice John Roberts is Not a Moderate” Take Back The Court (October 2019). 

10 Astead W. Herndon and Maggie Astor, “Ruth Bader Ginsburg’s Death Revives Talk of Court Packing ,” New York Times (22 October 2016).

11 Arthur S. Miller and Ronald F. Howell, “The Myth of Neutrality in Constitutional Adjudication,” 27 U. Chi. L. Rev. 661 (1960). 

12 “On this day, Bush v. Gore settles 2000 presidential race,” National Constitution Center (12 December 2019).

13 “Who were the first six Supreme Court justices?,” National Constitution Center (1 February 2021).

14 Richard A. Samuelson, “The Midnight Appointments,” 7 White House History (Spring 2000).

15 Bob D’Angelo, “Supreme Court: Changing number of justices not a new idea,” KIRO7 (14 April 2021). 

16 Nancy Peterson Hill, A Very Private Public Citizen: The Life of Grenville Clark (Columbia: University of Missouri Press, 2014), at 239.

17 Miller and Howell, supra note 11. 

18 Cait Bladt, “Should only politically neutral judges be confirmed to the Supreme Court?” Tylt (3 October 2018).