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Politics on the Supreme Court--Understood A Century Ago

By Jack M. Balkin

The legal culture today is marked by an easy acceptance of the notion that politics have a major influence on decisions by the Supreme Court. That was the point of several recent books on the Supreme Court (including my favorite, Toobin?s The Nine). It was the point of Judge Posner?s 2005 Harvard Law Review article on the Supreme Court--?A Political Court.? Political scientists have relentlessly pounded the ?judging is politics? theme for four decades now (still presenting it as if we didn?t already know). And newspapers today routinely explain SCOTUS decisions in terms of political alignments of the justices.

Although we like to think of ourselves as more world-wise than our nineteenth century forebears in holding this sophisticated perspective on the Court, they weren?t the formalist dummies we often make them out to be.

The influence of politics on Supreme Court decisions was the subject of an 1893 article??Politics and the Supreme Court of the United States??in the American Law Review (then older and more prestigious than the Harvard Law Review).

The author, Walter Coles, surveyed major Court decisions in the nineteenth century, lining up the political backgrounds of individual judges with their votes. He criticized the reasoning in selected opinions as ?vague,? ?weak, incoherent, and uncandid,? and asserted that the decisions can be explained by the political views of the judges.

?Viewing the history of the Supreme Court at large, and stating conclusions somewhat broadly, it may be said that its adjudications on constitutional questions have in their general tendencies conformed, in a greater or lesser degree, to the maxims of the political party whose appointees have, for the time being, dominated the court.? ?[T]o say that no political prejudices have swayed the court,? noted Coles with consummate realism, ?is to maintain that its members have been exempt from the known weaknesses of human nature, and above those influences which operate most powerfully in determining the opinions of other men.? Especially when no clear precedent exists, he asserted, a judge?s conclusions ?will be largely controlled by the influences, opinions and prejudices to which he happened to have been subjected.?

Many similar statements were uttered at the time in law reviews and newspapers, often by prominent people (including judges and Presidents), as partially described here and here.

We should not find this shocking, for they could see every bit as clearly as we can.

Full post as published by Balkinization on February 20, 2008 (boomark / email).