Zeitz, The Supreme Court Has Never Been Apolitical

The Supreme Court: Historical Context and Current Landscape

1. Fear of Partisanship in the Supreme Court

• Growing concerns that the Supreme Court is becoming a partisan institution.

• Public trust has declined:

  • Approval ratings dropped from 60% to 40% in two decades.

  • Disapproval rose from 29% to 53% in the same timeframe.

• Quinnipiac poll: 61% believe justices are primarily politically motivated; only 32% think they prioritize the law.

2. Historical Perception of the Court

• Apolitical Court is a Recent Development

  • The expectation of the Court's neutrality is a modern belief.

  • Historically, justices were often involved in politics:

    • John Jay served as a political adviser while being Chief Justice.

    • Justices frequently navigated between the courts and political offices.

3. Early Court and Political Involvement

• Justices were political figures:

  • John Marshall active in Federalist politics; established judicial review.

  • Justices often acted outside the confines of judicial roles, engaging in political matters.

• Fluid Movement Between Politics and the Judiciary:

  • 19th-century justices like John McLean and Salmon P. Chase had ongoing political aspirations even after being appointed.

4. 20th Century Political Interactions

• Influence of Former Politicians on the Bench:

  • Several Supreme Court justices, including Earl Warren and Hugo Black, had prior political careers.

  • Justice fortas: retained ties to President Lyndon Johnson while serving.

• Justices acted as political advisors, which has transformed in modern times.

5. Case Study: Justice Abe Fortas

• Fortas had a controversial relationship with LBJ and advisors:

  • Regularly shared court deliberations with President Johnson.

  • Helped draft presidential addresses and veto messages.

• His resignation marked a shift in the Court's operational norms:

  • Led to new limits and mandatory disclosure on outside income for justices.

6. Declining Perception of Neutrality

• Justices today strive for an image disconnected from politics; however:

  • Recent actions (e.g., the shadow docket) raise suspicion among the public regarding political motivations.

  • Critics argue the Supreme Court has become a tool for partisan goals rather than a neutral entity.

• Barrett and Alito defend the Court against accusations of partisanship, but skepticism remains prevalent among the populace.

7. Public Reception and Legitimacy Issues

• Current public sentiment questions the Supreme Court's role and legitimacy as a neutral arbiter.

  • Concerns that it may lose legitimacy if perceived merely as a political entity.

  • Recognition that viewing the Court as apolitical has been an illusion over the last 50 years; the truth is more complex.