Debunking the Romance: Politics and the Supreme Court
A Look Back at My Law Review Article from 1998
PROGRAMMING NOTE: I will be on MSNBC at 10:45 AM, giving my thoughts on where we go from the State of the Union
In the meantime…
The behavior of the Supreme Court of late—the decision to take up the Trump immunity argument (and to schedule it as their final oral argument of the term), Clarence Thomas’s unethical behavior, a rogue 5-4 disqualification opinion that nullified a 150-year old clause—brought me back to the first major piece of writing I ever published.
It ran in the Marquette Law Review, in 1998, and it was an article based on a paper I wrote in law school that, believe it or not, won an award.
And my guess is it won that award (amid far more intellectual submissions than mine) because, as subscribers may be learning, I’m pretty stubborn about getting to the bottom of things. And proving a point I believe in, receipts included.
And while it was dressed up in almost 100 pages, a lot of legal language, and 517 footnotes, the heart of that paper that became that law review article was….breaking news…
…that the Supreme Court can be motivated by politics.
And it made the additional point that efforts by those (it’s primarily lawyers) who romanticize the law to deny that reality are not only inaccurate, but not helpful in understanding American history or law. Or changing that law for the better.
So after the past several weeks of exasperating decisions by the Court (not to mention Dobbs), I decided to take a look back at that old paper and review what I had written. And my first reaction is—man, I was pretty intense back then. You’ll see why….
The Debate: Did FDR’s Court-Packing Threat Change the Court’s Direction?
The debate I dove into back in 1997 and 1998 was a spirited one, and remains relevant today given the waning standing of the Court and calls for Court reform and ethics.
The heated fray I entered was about FDR’s effort to “pack” the Supreme Court after a conservative Court had gutted key elements of his initial round of New Deal reforms.
But I didn’t focus on the merits or propriety of the Court-packing plan.
My focus was on what happened as a result of that push and the election of 1936. Because not long after FDR declared war on the Court, along with his 1936 blowout victory over Alf Landon, the Court dramatically shifted its stance regarding New Deal legislation. After years where the Court had taken a battle axe to key parts of the New Deal, the Court stunned the legal and political world by reversing course—and upholding the second wave of reforms in rapid sequence.
A quick summary:
in 1935 and 1936, the Court struck down a host of federal and state New Deal laws and reforms, including minimum wage by laws, and various types of regulation, based on a set of conservative theories that greatly minimized federal and state power to regulate the economy;
but in 1937, the Court changed course on both those theories and the outcomes of key cases, upholding minimum wage law, the creation of Social Security, laws impacting labor and unions, and other forms of economic regulation. It was a stunning reversal;
to get there, the Court used language granting states and Congress far more power and leeway in impacting each of these areas—which triggered years of deference to economic reforms and regulation;
continued political success and a host of FDR Court appointments only cemented into place the dramatic change.
In the years that followed, the prevailing narrative was that the Court performed its about-face in part as a reaction to the politics of the time—public anger with the Court amid tough economic times, the high-profile Court-packing plan, and the long FDR political winning streak, including his decisive win in the 1936 election. The shift became known as the “The Switch in Time that Saved Nine.”
But later, some lawyers and academics began to rewrite that account. The Court would never be motivated by such politics, they insisted. Instead, these revisionists argued that a close look at some earlier cases showed that what on the surface appeared to be a revolutionary shift in 1937 was merely part of a long, natural evolution of Court doctrine on economic matters.
No politics to see here, they argued.
Just pristine judicial handiwork following a natural, law-driven jurisprudential arc. As I summarized at the time: “In the end, their point is not only that 1937 was not a revolution [brought on by politics], but that it comprised a shift driven by the inner workings of the legal world.”
My Response: Debunking the “Legalists”
My Marquette article was basically 100 pages of saying….
“Nonsense!”
Remember, the key to the revisionist account (in the article, I refer to those making the argument as “legalists”) is pointing to cases earlier in the decade as the natural legal precursors to the 1937 shift.
So I went back and reviewed those cases, then tracked down every single citation, in both lower courts and academic treatment, to those earlier cases. And what I found was that those prior cases had not been previously treated in the way the Court treated them in 1937. In fact, those cases had been left for dead by the Court’s hostile takedown of New Deal reforms in 1935 and 1936.
Ironically, it was the dramatically different use of those moribund cases beginning in 1937 that formed a core element of the revolution that took place. The resuscitation of those cases—and the shift in how they were utilized to generate different outcomes than in 1935 and 1936—was a central maneuver in the overall switch. And citing those cases was a way for the Court to “cover its tracks” and add legal legitimacy to its hard-to-explain (absent politics) about-face. And those cases came to stand for something different after 1937 than they had before.
As I wrote at the time: “the Court's reliance on [the prior cases] marked a relatively transparent attempt…to maintain the Court's legitimacy despite its politically-induced reversal.”
And of course, without those cases to rely on, the legalist explanation that the 1937 “switch” was due to internal legal considerations falls apart. All that’s left is the politics, and the original narrative.
Why I Cared So Much Then
Like I said, I’m stubborn. Maybe even more so back then.
To me, it was so clear that politics did impact the Court’s dramatic shift, it felt disingenuous to explain that all away and apply a more legally pristine explanation/cover for it all. The legalist narrative appeared driven by romantic notions of how the law is supposed to work—that politics never impacts constitutional deliberation. And that motivation shaped an anachronistic, forced argument that made a mess of the actual history, and law.
Even then, apparently, the far less political me wasn’t buying it, and set out to prove that approach wrong. And even though my article was met by fierce pushback by the professors I was critiquing, I think my article laid it out effectively. (I was honored that full professors felt the need to write articles rebutting a young law student’s argument at all).
Why I Care So Much Now
Today, twenty-five years later, I still think it matters.
And based on both my lived experience since (as a law clerk, lawyer and frequent litigant) and my better understanding of the Court’s history, the point I tried to make then actually matters even more today. Because the Court is far more politicized when I wrote that paper.
Of course, there’s some tension in this conversation. Especially for lawyers.
I understand and share, generally, the inclination to keep raw partisan politics out of courthouses. To maintain independence. As a lawyer and former federal appellate clerk, I’m horrified that the Ohio and North Carolina statehouses added partisan labels to the ballot for judicial races, clearly doing so to help fellow partisans win and to remove the independence of the courts that review their own legislation. So I, like those “legalists,” recoil when I see that type of partisan politics shape how courts approach individual cases. Especially if it means that hyper-politicized courts simply become a rubber stamp for the very politicians for which they are supposed to provide a crucial check and balance.
For the same reason, I also hold back from attributing most court decisions to politics or partisanship.
But I also think it’s a damaging mistake to blind ourselves to the reality that—now and in the past, for cases with direct and significant political consequences—politics has clearly driven much of the law at multiple levels, including the very top. This includes what cases are taken, how they are decided (both the outcomes and how opinions are written) and even the timing of that deliberation (breakneck speed vs. slow walks).
You can’t review the Court cases that got us Jim Crow, or Bush v. Gore, or Dobbs, or the decisions that got us the weakened democracy we are enduring today, without seeing that reality.
You can’t watch the inconsistencies among these and other cases—where each word of the plain text is sacrosanct in one case, but wholly irrelevant in another (the disqualification case); where some long-ago precedent (Griffin’s Case?!?) dictates the results of some cases, but an ironclad precedent is tossed out in others (Roe); or where Congress is treated with great deference and given exclusive power in one case (Colorado this week), but treated with utter disrespect and given almost no power versus “states’ rights” (Shelby County)—without seeing that reality.
And you can’t watch the long-game strategy of the Federalist Society over recent decades, or McConnell’s legacy of outrageous machinations around nominations, and NOT acknowledge it as well.
Heck, even Justice Barrett confessed to having her political antenna up in her concurrence this week, suggesting that sensitivity to political sentiment should guide even the way in which opinions (or dissents) are written:
“In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.”
Without meaning to, Justice Barrett may have channeled the same sentiment— “turning the temperature down”—that drove that 1937 New Deal “switch.” And the history books tell us that Chief Justice Warren was similarly motivated when he worked hard for a unanimous decision in Brown v. Board of Education.
So it’s undeniable that politics informs both the broader direction and sometimes individual decisions of courts, including the Supreme Court. As with the New Deal shift, sometimes the only thing that reconciles decisions and approaches that would otherwise be wildly inconsistent is that politics is involved.
Importantly, there’s a spectrum to this:
At times, being in tune and moving with the political and societal currents of the day can lead to important and needed change. Again, Brown v. Board of Education; those New Deal cases; and the major voting rights cases of the Warren era all helped improve our democracy and lift our nation.
Others times, an overpoliticized Court can do damage, stoking a rearguard reaction that holds the nation back as the American people want to move forward. The longer this goes on, the more damage is done.
At worst, it’s clearly possible that certain interests can leverage power to capture the Court and insulate themselves from the democratic politics of the moment, and achieve political ends.
The Damage Done by Burying Our Head in the Sand
Given this clear if complicated reality, and history, the reflexive urge by some—which still happens today, especially within the legal profession—to insist that somehow the law and courts are insulated from politics does indeed do damage.
And especially amid that worst case scenario—an organized effort to politicize courts for certain ends—insisting that somehow the law and courts are still removed from those politics provides misleading “cover” for what is really happening. It places the Court on a pedestal that it hasn’t earned—cleansing politically-driven directions with the legitimacy of law and immunizing the Court from criticism. It’s akin to analyzing legislative election results without accounting for the role gerrymandering plays in those outcomes.
Suggestions that the Court is insulated from politics also creates an impression that any talk of Court “reforms” is somehow inappropriate. The standard view is that such talk of reform crosses a line.
But once you accept that politics is already shaping how the Court works—at times even distorting it—discussion of reforms to curb political abuse or damage to democracy and the rule of law is wholly appropriate. Indeed, important.
And even the public discussion itself can help provide counter-balance to a Court that has fallen into overtly political and damaging territory.
FDR’s hard pushback in the 1930s sparked such a conversation, and ultimately played a role in shifting the approach of a Court that had previously halted efforts to lift the country out of an economic crisis.
Today, a louder conversation (such as that being pushed by Senator Sheldon Whitehouse) is needed…about what has happened to the Court and the right-wing forces that have shaped it for a generation. And this includes critiquing decisions that are wholly incoherent as a matter of law but are almost perfectly explainable by political factors. As I tried to do in that article, casting such light is important.
And taking on the Court directly—as FDR did, as Biden did at the State of the Union—can also add needed balance.
If those conversations open the door to potential reforms, great. Let’s talk about them, even as we respect the general need for Court independence within our system of checks and balances.
Because over the long run, pretending that the Court is apolitical at a time when politics is clearly lurking—and leaving the impression that reforms are an inappropriate topic of conversation—does far more harm than good.
Excellent article, David. This court has surely shown us, time & again, especially these past couple of years, they are political. Even Chief Justice Roberts has bowed down to that level. He used to be the one trying the most to NOT show it. I also believe, they think themselves above the other branches now. When they claim to not need or create meaningful ethics rules is just that. It’s time to reform the court & being them back into the checks & balances the Constitution created amongst the top three Executive Level branches. Pass a strong ethics bill, as Senator Whitehouse has suggested. Maybe also set term limits, so future Justices don’t get as cocky as these have. I also think the number of SCOTUS Justices should match the number of District Courts, so each only has management over one. That’s just my non-legal mind thinking here.
Anyone voting for trump because gas prices were higher or because they believe that he is a successful businessman or because they believe aborting a fertilized egg or deformed fetus is murder or because they believe he was sent by God or they believe rich people should pay less tax than the rest of us or they believe that he is a patriot or they believe that he can force himself on women against their will or they believe that there are Democrats in the basement of a pizza parlor promoting sex with children or that they can threaten others with assault and battery or that our love interest is wrong or that autocracy should replace democracy are an abomination (Leviticus 1776:2024).