How should we think about the Supreme Court? Two models dominate the popular imagination. One tells us that the justices are wise and principled, defending our rights and enforcing the Constitution even if it is unpopular. The other tells us that they are untrustworthy and political, imposing their own values in the guise of constitutional adjudication. Americans shift back and forth between these two views without much explanation, except perhaps whether they approve of the particular decision under discussion.
In An Advanced Introduction to the U.S. Supreme Court, I try to offer a different perspective, one that both explains why the justices are sometimes heroes and sometimes villains and suggests a way to nudge them towards the heroic role. The perspective is institutional and historical. It is institutional in that it encourages us to think about the Court not as an isolated actor interpreting the Constitution in lonely splendor but as one part of our system of constitutional self-governance. It is historical in that it tries to draw lessons from history about the conditions that make the Court perform better or worse within that system.
The institutional point is that the Court is part of a political system. It is not political in the same way as Congress or the president: In all but the rarest cases, justices genuinely feel bound by law and the Constitution. But they have different understandings of what the Constitution means, and they are appointed in substantial part because of those understandings. The Warren Court, the Rehnquist Court, and the Roberts Court championed very different interpretations of the Constitution, because they were composed of different justices. Who the justices are matters. To put it slightly more bluntly, the Court is one of the power centers in our national government, and the political parties fight to control it through the appointment process. The parties have distinct policy visions, and they also have distinct constitutional visions. Justices do not understand themselves as advancing their party’s policy goals, and they rarely do so in a nakedly partisan way. But they do understand themselves as advancing their party’s constitutional goals, and they do so quite consistently — especially recently.
Once we accept this fact, history shows us a few things. First, the Court has become more important. It has always decided controversial and momentous issues, but it exerts a more pervasive and far-reaching influence on American life than the drafters of the Constitution expected. Control of the Court has become enormously significant. Second, our method of determining who wins that control is deeply flawed. It is not designed for a system where two parties fight for power.
Notoriously, the framers of the Constitution did not anticipate political parties. That failure of vision made the system for electing the president unworkable. Few people remember this, but the original Constitution did not distinguish between candidates for president and vice president: All candidates competed for the presidency, and the person who came in second became vice president. The election of 1796 gave us John Adams as president and his hated rival, Thomas Jefferson, as vice president. In 1800, the framers’ design produced a tie between Jefferson and Aaron Burr. Americans had seen enough. We did the sensible thing and adopted the 12th Amendment to fix the problem in 1804. Now we have separate Electoral College votes for president and vice president.
The party system also made the process for selecting justices unworkable, less obviously, but no less gravely. In a world without political parties, it does not matter much how many appointments a president gets. John Adams and Thomas Jefferson might have different ideas about who the best judges are, but if judges are not linked to the parties’ distinct constitutional visions, Jefferson can deal with judges appointed by Adams more or less as well as he can deal with his own appointees.
Bring parties into the picture, and things change. Jefferson could not deal well with Federalist judges; he complained that the Federalist party had “retreated into the judiciary as a stronghold, the tenure of which renders it difficult to dislodge them.” Jefferson was able to influence the Court himself, of course; he ended up appointing three justices. (No thanks to the Federalists, who with the Judiciary Act of 1801 reduced the size of the Court to five to deny Jefferson an appointment. Jefferson’s Democratic-Republican administration promptly restored it to six with the Judiciary Act of 1802.) But nothing in our system guarantees that a president can make appointments; FDR got none in his first term.
The consequence of subjecting to partisan competition a process designed for a nonpartisan world is that outcomes may not make much sense in partisan terms. The composition of the Court can vary, sometimes substantially, from what it would have been if each president had equal influence.
Does that matter? History can be informative here, too. If we look back and chart the composition of the Court compared to what it would be under a system where each president had equal influence, it turns out that the Court does better when it is closer to that baseline. Dred Scott, for instance, was the product of a 7–2 Democratic majority, with four justices, including Chief Justice Roger Taney, appointed by Andrew Jackson. Under an equal influence system, it should have been five Democrats and four Whigs, with no Jackson appointees remaining. The conflict over the New Deal arose in large part because the 1935 Supreme Court tilted more Republican than it should have (7–2 rather than 6–3) and FDR got no appointments in his first term. Brown v. Board of Education, on the other hand, featured a Court that was where it should have been following five Democratic presidential terms and Dwight D. Eisenhower’s victory in 1952.
