Justices Have Long Mixed Politics With the Bench

Why it matters locally: The historical context of Supreme Court justices engaging in political discourse is relevant to Georgia residents, particularly given Justice Clarence Thomas's ties to the state (having attended Savannah State University).

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Scholar Robert Dahl observed in 1957 that Americans hold contradictory views about the Supreme Court, simultaneously treating it as political and denying its political nature. Historical records show that Dahl's observation captured a tension the Court itself has never fully resolved. In the nation's early decades, the boundary between judicial and political roles scarcely existed. Chief Justice John Jay addressed grand juries while circuit riding in 1790, discussing political ideas from the Federalist Papers and advising President George Washington on both legal and political matters. Jay also negotiated the Treaty with Britain while serving on the bench. Justice Samuel Chase pushed further. A Federalist who campaigned for President John Adams, Chase delivered an 1803 grand jury charge criticizing Republicans for repealing the Judiciary Act of 1801. He called the removal of federal judges a threat to judicial independence and attacked a Maryland voting provision, warning it would transform the country into "a mobocracy." These remarks prompted the House to impeach Chase, with President Thomas Jefferson encouraging the action. The Senate acquitted him in 1805, and no justice has faced impeachment since. Chief Justice John Marshall held two offices simultaneously after his confirmation, continuing as secretary of state for the final month of the Adams administration. The case that defined his legacy, *Marbury v. Madison*, arose from commissions Marshall failed to deliver in his state department role. Later, when his 1819 *McCulloch v. Maryland* decision drew criticism, Marshall published nine essays in the Alexandria Gazette under the pseudonym "A Friend of the Constitution" defending his own ruling. Justice John McLean used his position to champion antislavery causes. In 1848, he endorsed the Free Soil Party's opposition to slavery expansion in a letter published in multiple newspapers while considering a presidential run. Mississippi Senator Henry Foote protested that McLean's conduct as "a political letter-writer" was "unworthy of the bench." Justice Levi Woodbury, McLean's contemporary, made his own presidential bid for the Democratic Party. A year before the 1848 convention, Woodbury joined a unanimous decision upholding the Fugitive Slave Act, a ruling that gave him support among Southern delegates. Justice David J. Brewer became perhaps the most visible justice of the early 20th century through relentless public speaking. Justice Oliver Wendell Holmes Jr. joked about Brewer's "itch for public speaking," yet historians ranked Brewer as probably the most widely read jurist in America at the turn of the century. Brewer used the platform to oppose American imperialism and military expansion, directly criticizing President Theodore Roosevelt's foreign policy and his possible bid for a third term. Charles Evans Hughes, nominated to the Court in 1910 partly to eliminate him as a 1912 presidential challenger, left the bench six years later to run for president as the Republican nominee. He became the only sitting justice nominated for the presidency by a major party. He lost to Woodrow Wilson but returned to the Court in 1930 as chief justice and later publicly opposed President Franklin Roosevelt's proposal to expand the Court. In 1937, Justice Hugo Black faced public demands for resignation after a reporter exposed his 1920s membership in the Ku Klux Klan. Black delivered an 11-minute radio address on October 1, 1937, acknowledged joining the organization, and stated he had resigned years earlier with no ongoing ties. The Post-Gazette estimated the radio audience at roughly 50 million. Polling showed support for his resignation dropped from 59 to 44 percent following the address. Black took his seat four days later and became a forceful defender of civil rights. In 1987, Justice Thurgood Marshall declined to celebrate the Constitution's bicentennial. Speaking to lawyers in Hawaii on May 6, he called the Constitution "defective from the start," noting it had protected slavery, excluded women from voting, and required a civil war and constitutional amendments to address these flaws. Conservative legal groups called for his resignation, while others defended the Framers in response. Marshall published his address in several law journals without responding to critics. Justice Ruth Bader Ginsburg granted interviews to the Associated Press, New York Times, and CNN in July 2016 in which she called Republican presidential nominee Donald Trump "a faker," noted his unreleased tax returns, and expressed doubt about his presidency. According to NPR, no modern justice had publicly criticized a presidential candidate in this manner. The New York Times editorial board and senators including Mitch McConnell and Chuck Grassley criticized her remarks. Trump responded that her "mind is shot" and demanded her resignation. Ginsburg issued a statement describing her remarks as "ill-advised" and acknowledging that judges should not comment on candidates. More recent justices have engaged in public debate about the Court's political nature itself. In 2018, Trump dismissed an adverse asylum ruling as the work of an "Obama judge." Chief Justice John Roberts responded that the Court does not have "Obama judges or Trump judges." Trump countered on social media, insisting such judges did exist and had different views on national security. Justice Amy Coney Barrett said in 2021 that justices are not "a bunch of partisan hacks." Justice Stephen Breyer published a book and conducted a public tour arguing the Court is not political and warning against expanding its size. Justice Elena Kagan stated in 2022 that judges risk their legitimacy when appearing "political or partisan." Justice Ketanji Brown Jackson said in July that the state of American democracy concerns her and that she is "not afraid to use her voice." She called some Court decisions an "existential threat to the rule of law" and warned they risked making the Court appear political. Justice Clarence Thomas, speaking at the University of Texas, linked what he termed "progressivism" to historical authoritarian figures and urged the audience to show courage in challenging prevailing orthodoxies. Critics sometimes suggest contemporary justices engage in political commentary more openly than predecessors. Historical precedent shows otherwise. Throughout two centuries, certain justices chose at certain moments to participate in political discourse, a pattern that reflects deeper questions about the Court's role in American democracy. Dahl's 1957 observation that Americans cannot quite accept the Court as political while unable to deny it remains apt.