On a fall day in 1955, Thurgood Marshall needed a signature to save a man’s life.
Marshall’s client, as recounted in Gilbert King’s Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America, was an African-American man convicted of raping a white woman under dubious circumstances. The Florida Supreme Court had just rejected Marshall’s request for a last-minute stay of execution, and Marshall needed the Chief Justice of the United States, Fred Vinson, to stop the execution before it was too late.
Marshall found the chief in a hotel, two blocks from the White House, playing poker with President Harry Truman. Truman sat silently as his good friend Vinson read Marshall’s brief and eventually decided to side with Marshall’s client.
It was a common scene in the Truman administration. Often, Vinson and Justice Tom Clark joined Truman on the presidential yacht for a weekend of cards. And when Truman and Vinson weren’t betting on poker games, they just as often discussed matters of state. As Vinson biographers James St. Clair and Linda Gugin recount, the chief justice “was one of Truman’s closest confidants.” Vinson even joined political meetings about who Truman should select as his running mate in the 1948 election.
Justice Ruth Bader Ginsburg’s recent comments on Republican presidential candidate Donald Trump has kindled a national debate over the propriety of justices engaging in rank politics — with most commentators weighing in heavily against Ginsburg. “Washington is more than partisan enough,” according to a New York Times editorial, “without the spectacle of a Supreme Court justice flinging herself into the mosh pit.”
The reality, however, is that justices have, since the very early days of the Republic, lived in this mosh pit. They’ve linked arms with presidents, driven their shoulders into political adversaries, and teamed up with other high officials for as long as the Court has existed. They’ve acted as trusted advisers, brokered deals on behalf of their nation, and even sought elected office from their perch on the nation’s highest Court. There’s no question that Ginsburg’s comments departed from norms that modern justices typically adhere to, but any suggestion that the Court is above politics — or that it has ever been anything of the kind — is not accurate.
Of Poker and Duck Hunting
In 2002, Justice Antonin Scalia learned that a friend of his, businessman Wallace Carline, was “an admirer of Vice President Cheney.” Scalia, whose friendship with Cheney traced back to their time together in the Ford administration, offered to invite the sitting vice president to a duck hunt hosted by Carline that the justice was already planning to attend. Cheney agreed, and the justice and the vice president wound up flying together to the hunt on a government-owned jet.
This duck hunt, and Scalia’s friendship with Cheney, later caught Scalia in a minor scandal. In addition to serving as vice president, Cheney chaired the Bush administration’s National Energy Policy Development Group. The Sierra Club sought documents from that Group, and they asked Scalia to recuse from a case regarding these documents because of his personal connection to a party in the lawsuit.
In a public memorandum explaining his decision not to recuse, Scalia raised a very real problem that cuts at the heart of any effort to distance the justices from political officials. “Many Justices have reached this Court precisely because they were friends of the incumbent President or other senior officials,” Scalia explained, “and from the earliest days down to modern times Justices have had close personal relationships with the President and other officers of the Executive.” There are only nine justices, and many, many more lawyers and judges who possess the skills and temperament necessary to sit on the Supreme Court. Presidents have to sort through these lawyers and judges somehow, so presidents selecting people they or their close advisers know personally is an inevitability.
Nor do these connections simply vanish overnight because the president’s old confidant puts on a black robe. As Scalia details,
John Quincy Adams hosted dinner parties featuring such luminaries as Chief Justice Marshall, Justices Johnson, Story, and Todd, Attorney General Wirt, and Daniel Webster. Justice Harlan and his wife often “ ‘stopped in’ ” at the White House to see the Hayes family and pass a Sunday evening in a small group, visiting and singing hymns. Justice Stone tossed around a medicine ball with members of the Hoover administration mornings outside the White House. Justice Douglas was a regular at President Franklin Roosevelt’s poker parties.
A rule prohibiting justices from hearing cases involving their friends “would have disqualified much of the Court in Youngstown Sheet & Tube Co. v. Sawyer,” a seminal case about presidential power, because “most of the Justices knew Truman well, and four had been appointed by him.” It also would have “required Justice Holmes’s recusal in Northern Securities Co. v. United States, the case that challenged President Theodore Roosevelt’s trust-busting initiative,” because Holmes and his wife dinned at the White House at least every other week.
To be sure, many of these social interactions between the justices and top elected officials are just that, social. According to Jeffrey Toobin’s The Nine: Inside the Secret World of the Supreme Court, failed Supreme Court nominee Robert Bork briefly joined a poker game frequented by Scalia, Chief Justice William Rehnquist, and former Education Secretary Bill Bennett, but he “quit because no one wanted to talk about anything other than poker.” Nevertheless, there are no shortage of judicial friendships that find their way into the political mosh pit.
Just as Chief Justice Vinson acted as a political and policy adviser to President Truman, Justice Abe Fortas wrote speeches for President Lyndon Johnson, offered hawkish counsel on the Vietnam War, and even helped draft legislation that could someday wind up before his Court. Justices Louis Brandeis and Harlan Fiske Stone both advised the Roosevelt administration on how to draft a Social Security bill that would survive contact with the Court’s conservative bloc. Stone even reached out directly to Secretary of Labor Frances Perkins while her department was busy drafting the bill to offer his answer to this problem: “The taxing power, my dear, the taxing power.”
As Mark Tushnet notes, these past examples of justices playing politics generally involved private communications, unseen by the public or the press. Ginsburg’s remarks on Trump, by contrast, were “’on the record,’ and available to the public.” Yet, while justices have typically preferred to play politics in the shadows, public forays into electoral politics are hardly unheard of.
Damn Everyone Who Won’t Damn John Jay
The most recent example of a justice offering a deeply partisan opinion in a public setting probably came in 2012, just weeks after President Obama won reelection. Justice Samuel Alito was the keynote speaker at the conservative Federalist Society’s annual banquet, and he was surrounded by Republican lawyers clad in tuxedos and weighed down by their own profound disappointment.
Alito spent the bulk of his speech criticizing legal arguments raised by the Obama administration in the Supreme Court — a tactic that inspired Sen. Ted Cruz (R-TX) to later make similar attacks. Before diving into the meat of his speech, however, the justice shared a story about an uninspiring professor he studied under in law school. The professor, Alito told a room full of Republicans licking their wounds from a very recent defeat, authored a book warning of a society trapped in a “moment of utmost sterility, darkest night, most extreme peril.”
He then paused, before delivering his punchline. “Our current situation,” he told the gathering of Republicans, “is nothing new.”
Justice Alito’s speech was, admittedly, less of a breach in whatever wall exists between the Supreme Court and electoral politics than Justice Ginsburg’s remarks on Donald Trump. Alito spoke after the election, and his comments were not as explicitly partisan as Ginsburg’s. Nevertheless, Ginsburg and Alito’s statements both threaten the same harm. The rule against judges opposing political candidates does not exist because such statements make judges less likely to express their biases in their judicial decisions, it exists because of concerns that overtly partisan statements create the appearance of bias — and that such an appearance could undermine the legitimacy of the judiciary.
The founding fathers did not see the same need to preserve an illusion that the Court is above politics. Indeed, based on the Court’s very early history, it’s also not clear that the framers cared much at all about separation of power concerns that would make modern-day judges cringe.
The founding fathers did not see the same need to preserve an illusion that the Court is above politics.
John Jay was the first Chief Justice of the United States. Appointed at a time when the Supreme Court played a far more diminished role than it does today — the Court heard only four cases during Jay’s six years on the bench — Jay took a break from his judicial duties to serve as President Washington’s envoy to negotiate a trade agreement with Great Britain.
It’s difficult to exaggerate the divisiveness of the Jay Treaty. As Ron Chernow details in the book that inspired the musical Hamilton, this treaty formed one of the sharpest dividing lines between Alexander Hamilton’s Federalists and Thomas Jefferson’s Republicans. To Jefferson’s faction, “the Jay Treaty represented, its rawest form, a Federalist capitulation to British hegemony and a betrayal of the historic alliance with France.”
Graffiti appeared in Boston proclaiming “Damn John Jay! Damn everyone who won’t damn John Jay!! Damn everyone that won’t put lights in his windows and sit up all night damning John Jay!!!” Jay himself once quipped that he could travel at night from Boston to Philadelphia guided only by the light of his burning effigies.
It’s as if Justice Ginsburg had spent the Court’s summer recess drafting and personally lobbying for Obamacare, taking a break only to negotiate an open borders agreement with Mexico. The first Chief Justice of the United States was the central figure in one of the most contested issues in the nation’s early history — an issue so divisive that it played a significant role in the creation of coherent political parties in the United States.
Nor were Jay’s forays into politics limited to negotiating this extraordinarily controversial treaty. As the sitting chief justice, Jay was twice a Federalist candidate for New York’s governorship — he left the Court in 1795 after this second bid proved successful.
Jay was not the last justice to run for office while still a member of the Supreme Court. Justice William Douglas was the subject of a “Draft Douglas” campaign in 1948. By some accounts, he briefly campaigned for the presidency while still a member of the Supreme Court.
Similarly, as I detail in my own book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, Justice Stephen Field made a dark horse bid for the Democratic Party’s presidential nomination without stepping down from the bench. His 1880 presidential campaign rested on the same anti-government principles that Field tried to write into the Constitution as a member of the Court. “The old Constitution,” one Field pamphlet claimed, “has been buried under the liberal interpretations of Federalist-Republican Congresses and administrations, grasping doubtful powers and making each step towards centralization the sure precedent of another.”
It’s the sort of statement that could have easily appeared in a presidential campaign speech by modern day Tea Partiers like Cruz or Sen. Rand Paul (R-KY).
When Politics Matters
So, as much as we may wish to drive politics from the nation’s highest Court, this is not an achievable goal. The Court has always been a political body, and its members engaged in the most partisan activities from the very beginning of our nation’s history.
There is, however, one place where politics should not intrude — the actual decisions made by judges and justices.
By this measure, the modern Supreme Court does a very poor job. We cannot know with certainty why the five justices most inclined to support Republican positions sided with the Republican party’s candidate, and the four most inclined to support liberal positions sided with the Democratic Party’s candidate, in Bush v. Gore. But the fact remains that they voted entirely along ideological lines in a case that resolved the outcome of a presidential election.
We also cannot look inside the minds of the conservative justices who breathed life into an attack on the Affordable Care Act that was widely viewed as a non-starter before oral arguments in the Supreme Court. An American Bar Association poll of Supreme Court experts, taken shortly before oral arguments, found that 85 percent believed the Court would uphold Obamacare on the merits and another 9 percent believed the Court would hold that it did not have jurisdiction to hear the case. Yet four Republican appointees voted to repeal the law in its entirely, and the Court’s one remaining Republican embraced most of the arguments raised by the law’s opponents.
The votes cast in these and similar cases raise far graver concerns about a partisan judiciary than an occasional remark by Justice Ginsburg or Alito. Politics is an inevitability in the Supreme Court, and no one can obtain a seat on the Court without, in some way, mastering the art of milking political connections. We cannot expect intelligent, politically engaged individuals like the justices to forget that they prefer one party over another, or that they have views on important issues of policy.
But we can expect them to heed the words Chief Justice John Roberts wrote in his opinion allowing most of the Affordable Care Act to stand. Judges “possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders.”