Politics and the Court

The Supreme Court in its decisions sometimes refers to Congress and the executive as the “political branches” of government, but the Court itself has always been a political institution too.

Politics is a primary motivation in a president's selection of nominees to the Court and plays a role in the senatorial confirmation process as well. Many justices had political careers before their appointments, and a few—mostly in the 1800s—took part in political activities after joining the bench.

In modern times, the political element has become less openly partisan as the Court has evolved into a more equal and autonomous component of the federal system. Justices generally refrain from political activities and maintain a distance from both the president and Congress.

Presidential Politics

George Washington chose six supporters of the new federal government to constitute the original Supreme Court in 1790 and named five more justices with similar views as vacancies arose during his eight years in office. With the birth of political parties, Washington's successor, John Adams, near the end of his term attempted to ensure Federalist control of the Court by choosing a loyal Federalist, John Marshall, as chief justice.

President Dwight D. Eisenhower (front row, third from right) stands with members of the Supreme Court and two Court clerks (back row, left). During his eight years in office Eisenhower had the opportunity to appoint five new justices, including a replacement for Chief Justice Fred Vinson, standing to his left. (Source: Collection of the Supreme Court of the United States.)

Since then, presidents have appointed members of the opposition party to positions on the Court only thirteen times—and political considerations lay behind almost all of those exceptions.

Republican president Abraham Lincoln, for example, picked Democrat Stephen Field, a distinguished justice from the California Supreme Court, to help cement the state's loyalty during the Civil War. Democrat Franklin D. Roosevelt elevated Republican Harlan Fiske Stone to chief justice in the hope of promoting bipartisanship on the eve of World War II.

Dwight Eisenhower had an eye on northern Catholic voters when he selected William J. Brennan Jr., a Democrat and a Catholic, one month before the 1956 presidential election. Richard Nixon was pursuing his “southern strategy” in 1971 when he chose Lewis F. Powell Jr., a Richmond, Virginia, lawyer and a nominal Democrat.

In some cases, political affiliation was a misleading indication of the nominee's views on legal issues. Justice Louis D. Brandeis called himself a Republican, but held social and economic views in line with those of Democratic president Woodrow Wilson. Wilson's predecessor, Republican William Howard Taft, chose two conservative Democrats for the Court, Horace H. Lurton and Joseph R. Lamar, and elevated another, Edward D. White, to chief justice. Later, as chief justice himself, Taft recommended another conservative Democrat, Pierce Butler, for appointment by Warren G. Harding.

Other presidents who have named justices of the opposite party were Republicans Benjamin Harrison (Howell E. Jackson) and Herbert Hoover (Benjamin N. Cardozo); Democrat Harry S. Truman (Harold H. Burton); and Whig John Tyler (Samuel Nelson, a Democrat).

Presidents have occasionally nominated someone as a justice to get him out of another position. Andrew Jackson appointed John McLean, who had served as postmaster general for six years, because McLean refused to permit political removals from post office positions. Wilson named his attorney general, James C. McReynolds, to the Court after McReynolds came into conflict with the administration and some powerful members of Congress. Calvin Coolidge is said to have appointed Stone to the Court because of problems he was creating as attorney general.

On other occasions, appointment to the Court has been a president's reward to a supporter for political loyalty and service. Lincoln named his former campaign manager, David Davis, to the Court. John F. Kennedy appointed Byron R. White, who had led Kennedy's drive for independent voters in the 1960 election. Eisenhower's selection of Earl Warren as chief justice in 1953 came after Warren had delivered the California delegation's votes to Eisenhower at the 1952 Republican nominating convention and had campaigned for Eisenhower in the general election campaign.

Congressional Politics

John Adams's selection of the Federalist Marshall as chief justice, ironically, did not please the Federalist-controlled Senate, whose members wanted to elevate Associate Justice William Paterson. The Senate yielded after Adams remained firm. But during the rest of the nineteenth century, the Senate succeeded in blocking many other nominees, frequently for purely partisan reasons.

In particular, the Senate often denied confirmation to nominees late in a president's term simply to save the seat for an incoming president to fill. In 1829, for example, the Senate refused to confirm John Quincy Adams's nomination of John Crittenden, saving the seat for Andrew Jackson to fill.

John Tyler, a former Democrat turned Whig, had no personal political base in the Senate when he succeeded to the presidency after the death of William Henry Harrison in 1841. Estranged from Whigs and Democrats alike, Tyler suffered three successive defeats on nominations to the Court in 1844 and two more in 1845 as the Democrats awaited the inauguration of James K. Polk.

Millard Fillmore, who became president after the death of Zachary Taylor, similarly failed in three tries to fill a vacancy on the Court in his last seven months in office. And on the eve of the Civil War in 1861, Republicans blocked a lame-duck appointment by Democratic president James Buchanan.

The Senate defeated one lame-duck nominee to the Court in the twentieth century: Abe Fortas, chosen by Lyndon Johnson to succeed Warren as chief justice in 1968. Warren submitted his resignation in June to take effect on the confirmation of a successor. Republicans, with an eye on the November election, wanted to save the seat. After argumentative hearings with Fortas over his liberal views and his role as an adviser to Johnson, the Republicans staged a filibuster on the Senate floor.

Democrats fell short, 45–43, of the two-thirds majority they needed to cut off debate on October 1. Fortas asked that his nomination be withdrawn the next day. Johnson then asked Warren to stay in his post. Warren agreed and remained on the Court through the 1968– 1969 term.

Politics on the Court

In the Court's first century, several justices engaged in political activities while on the bench, including three—John McLean, Salmon P. Chase, and Stephen Field—who either sought or expressed interest in nomination as president. Justice Charles Evans Hughes also had presidential ambitions, but he chose to resign from the bench in 1916 to make what turned out to be an unsuccessful run as the Republican presidential nominee.

Justices in the 1800s did not maintain the distance from other branches of government that is now expected of them. For example, word of the Court's ruling in Scott v. Sandford and the first of the Legal Tender Cases was passed to Presidents Buchanan and Grant respectively before the decisions were announced.

Several nineteenth-century justices lobbied effectively with presidents to urge appointment of certain candidates for vacancies on the Court. That practice continued in the twentieth century. As chief justice, William Howard Taft lobbied both the president and Congress. He either selected or approved three of the four justices Warren G. Harding appointed to the Court: Pierce Butler, George Sutherland, and Edward T. Sanford. In addition, Taft helped push through Congress the Judiciary Act of 1925, giving the Court greater control over its selection of cases to hear.

Franklin Roosevelt and Truman both relied on advice from justices in selecting a new chief justice—and in both cases the choices proved to be disappointing. When Chief Justice Hughes, who had been renamed to the Court in 1930, announced his retirement in 1941, Roosevelt asked him and Justice Felix Frankfurter for help in choosing between elevating Harlan Fiske Stone or appointing Attorney General Robert H. Jackson. Both justices recommended Stone. Roosevelt chose Stone and then named Jackson to Stone's seat. Stone, however, was not regarded as an able leader. He failed to control some bitter feuds on the Court during his five years as chief justice—in particular one between Jackson and Hugo L. Black.

When Stone died in 1946, Truman sought advice from the now retired Hughes and another retired justice, Owen J. Roberts. Jackson was viewed by many, including himself, as the leading contender, but both Hughes and Roberts urged Truman to pick someone who could restore peace among the members of the Court. Truman turned to his secretary of the Treasury, Fred M. Vinson, who had a reputation as an able administrator. Vinson succeeded in muting the clashes between members of the Court but failed to restore harmony.

To this day justices still occasionally confer with presidents on nominations to the Court. In 1962 Kennedy discussed his intention to appoint Arthur J. Goldberg with Chief Justice Warren and with Frankfurter, whose retirement was creating the vacancy. In 1981 William H. Rehnquist recommended his former law school classmate, Sandra Day O'Connor, to President Ronald Reagan for a Supreme Court seat.

Document Citation
Politics and the court. (2003). In K. Jost (Ed.), The Supreme Court a to z. Washington: CQ Press. Retrieved April 13, 2005, from CQ Electronic Library, CQ Encyclopedia of American Government, http://library.cqpress.com/eag/scaz3d-186-9110-556896. Document ID: scaz3d-186-9110-556896.
Document ID: scaz3d-186-9110-556896
Document URL: http://library.cqpress.com/eag/scaz3d-186-9110-556896
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