{"id":273,"date":"2026-06-26T13:41:22","date_gmt":"2026-06-26T13:41:22","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=273"},"modified":"2026-06-26T13:41:22","modified_gmt":"2026-06-26T13:41:22","slug":"when-justices-wade-into-politics","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=273","title":{"rendered":"When justices wade into politics"},"content":{"rendered":"
\n

Scholar Robert Dahl, writing back , once remarked that \u201cAmericans are not quite willing to accept the fact that [the Supreme Court] is a political institution and not quite capable of denying it; so that frequently we take both positions at once.\u201d<\/p>\n

Read more Court rules on gun rights, immigration, and pesticide labels<\/a><\/p>\n

Generally, the justices have refrained from explicitly commenting on politics. That custom, however, is more a matter of practice and institutional norms than a hard-and-fast rule, and over more than two centuries, justices have at times set it aside while sitting on the bench.<\/p>\n

As the current court continues to generate criticism from both sides of the aisle, it seemed relevant to take a deep dive into the (somewhat) rare occasions when justices have openly \u2013 and often controversially \u2013 done so.<\/p>\n

Politics from the bench<\/strong><\/p>\n

In the court\u2019s earliest years, the judicial and political roles were hard to separate \u2013 in ways that might shock those who currently accuse the court of partisanship. Besides often being heavily invested in political causes (e.g., campaigning on behalf of elected officials or seeking elected office themselves), the early justices often used addresses to grand juries while circuit riding as occasions for commentary beyond the strictly legal. At that time, such bodies were not simply assembled to decide whether to indict individuals. Instead, the responsible circuit justice would address the grand jurors at the start of each court term, \u201claying out their duty and the manner in which it was to be performed,\u201d and \u201clectur[ing] on the role of government, on the implications of the new Constitutional system, and on the jury\u2019s role and responsibility within that system.\u201d Many of these charges were later printed in newspapers and reached a wider audience. In this way, the justices acted as \u201crepublican schoolmasters\u201d who saw their role as to \u201cinstill a sense of civic virtue in the populace.\u201d<\/p>\n

The first chief justice, John Jay, did just that while riding circuit. In May 1790, Jay addressed several grand juries on the (then) \u201cEastern circuit,\u201d openly contemplating political ideas discussed in the Federalist Papers, such as if men are capable of self-government. Jay was also political in a more explicit sense \u2013 he advised President George Washington in both politics and law, and while on the court, negotiated the \u201cJay Treaty\u201d between the United States and Britain \u2013 which helped avert war between the two countries.<\/p>\n

But perhaps no early justice tested the limits as far as Justice Samuel Chase. A Federalist who had campaigned for President John Adams in 1800, Chase delivered an 1803 charge to a Baltimore grand jury that criticized Republicans and the Jefferson-aligned Congress for repealing the Judiciary Act of 1801. This repeal, which, among other things, removed 16 circuit judges (most appointed by Adams), meant, according to him, that \u201cthe independence of the national judiciary\u201d would be shaken to its foundation. Following this, Chase assailed a new Maryland provision broadening the vote to include individuals without property, saying that it would turn the U.S. into \u201ca mobocracy.\u201d<\/p>\n

These overtly political remarks led in part to Chase\u2019s impeachment by the House (specifically, the articles called out his activities as \u201ctending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partizan\u201d) and President Thomas Jefferson himself encouraged Chase\u2019s impeachment in a letter to a House member, referencing \u201cthe extraordinary charge of Chace [sic] to the\u00a0grand jury\u00a0at Baltimore\u201d and asking \u201cought this seditious & official attack on the principles of our constitution, and on the proceedings of a state, [] go unpunished?\u201d<\/p>\n

The Senate ultimately acquitted Chase in 1805, and no justice has been impeached since.<\/p>\n

Then there was Chief Justice John Marshall, who \u2013 even while serving as chief justice \u2013 remained heavily involved in Federalist politics. Perhaps most remarkably, Marshall held two offices simultaneously after being sworn in as chief, as he continued acting as secretary of state for the final month of the Adams administration. Legal scholars today have noted the conflict of this \u201cdouble duty,\u201d which was not limited to Marshall (Jay and Chief Justice Oliver Ellsworth served in similar roles). In fact, the case that made Marshall\u2019s legacy, Marbury v. Madison<\/em>, arose directly from commissions he<\/em> had failed to deliver in his capacity as secretary of state.<\/p>\n

Marshall\u2019s off-bench advocacy didn\u2019t end with the Adams administration, however. After his ruling in 1819\u2019s McCulloch v. Maryland<\/em> that recognized Congress\u2019 ability to create the Second Bank of the United States pursuant to the necessary and proper clause of the Constitution drew criticism from certain corners, Marshall published a series of nine essays in the Alexandria Gazette under the pen name \u201cA Friend of the Constitution\u201d defending his own opinion. Legal scholars have also debated if Marshall\u2019s conduct there was appropriate.<\/p>\n

Mid-19th century<\/strong><\/p>\n

In 1829, President Andrew Jackson nominated John McLean for the Supreme Court, who took his seat the day after. During his time as a justice, McLean had a goal in mind other than serving on the court: to become president. Indeed, as Adams once\u00a0 McLean \u201cthinks of nothing but the Presidency by day and dreams of nothing else by night.\u201d<\/p>\n

In 1848, McLean was talked about as a candidate for the anti-slavery Free Soil Party, but he demurred after Martin Van Buren took the lead for the nomination. Nevertheless, in a withdrawal letter that ran in several newspapers, McLean endorsed the party\u2019s defining position of keeping slavery out of the land the United States had won from Mexico. This was not unusual for McLean, who was more than willing to take on the nation\u2019s most difficult issues: He also voiced his strong objections to the annexation of Texas and to the war with Mexico (as, famously, did Abraham Lincoln). This was not met without opposition, as Mississippi Sen. Henry Foote complained that \u201cthe conduct of McLean, as a political letter-writer, is unworthy of the bench, discreditable to the country, and wholly indefensible.\u201d Others accused him of \u201celectioneering from the bench\u201d given antislavery remarks contained within some of his court opinions.<\/p>\n

Justice Levi Woodbury, who was on the court with McLean, made a presidential run of his own to serve as the nominee for the Democratic Party. Woodbury was as a \u201cloyal Jackson man \u2026 [who] saw [his] judicial and political positions as interchangeable.\u201d The year before the 1848 Democratic convention, he held for a unanimous court in Jones v. Van Zandt<\/em> that (1) the Fugitive Slave Act was valid under the Constitution as an exercise of congressional power and (2) that slavery\u2019s protections were baked into the Constitution\u2019s original compromises. The decision \u201cgave him southern support,\u201d though not enough to secure him a victory over Sen. Lewis Cass, who then went on to lose to Zachary Taylor.<\/p>\n

The most widely read jurist in America<\/strong><\/p>\n

Near the start of the 20th century, Justice David J. Brewer treated the lecture hall as his second vocation. Justice Oliver Wendell Holmes Jr., who professed personal fondness for Brewer, frequently poked fun at his \u201citch for public speaking.\u201d Nevertheless, by one historian\u2019s account, all that speaking made Brewer \u201cprobably the most widely read jurist in the United States at the turn of the twentieth century.\u201d<\/p>\n

Read more An unusual retort to a dissent from the bench<\/a><\/p>\n

And Brewer did not shy away from politics at the podium. His most insistent cause was peace; he spoke against the country\u2019s drift toward empire abroad, against military buildups, and against war in general. He also took aim at the Progressive movement and at President Theodore Roosevelt in particular, criticizing Roosevelt\u2019s imperialism (specifically, the Monroe Doctrine) and accusing him of playing \u201chide and seek\u201d with the idea of running for a third term as president. Brewer also said New York Governor Charles Evans Hughes (who would eventually take his place on the court) \u2013 was a better politician than Roosevelt. The justice\u2019s constant readiness to speak his mind in public reportedly unsettled some of his colleagues, including Holmes.<\/p>\n

Which brings us to Hughes. Hughes, who had served as governor of New York, was initially nominated to the court in 1910 by President William Howard Taft, \u201cin part to remove a likely challenger from the 1912 presidential election.\u201d This didn\u2019t quite work: Six years after his Senate confirmation, Hughes ran for president again, becoming the only sitting justice to be nominated for the presidency by a major party. He resigned\u00a0from the court after being nominated and subsequently lost to Woodrow Wilson. In\u00a01930, after serving as secretary of state, Hughes was picked as chief justice by President Herbert Hoover to fill the seat vacated by Taft and was swiftly confirmed. From there, perhaps his most notable political maneuver was to successfully speak out against President Franklin Roosevelt\u2019s court packing plan, leading the president to grudgingly remark that Hughes was the best politician in the nation.<\/p>\n

A first for radio<\/strong><\/p>\n

In 1937, there was no shortage of drama in politics or on the court. Hugo Black, a New Deal Democrat from Alabama who as a senator had been a vocal supporter of Roosevelt\u2019s plan to enlarge the institution, was confirmed that August by a vote of 63 to 16. Soon after, Pittsburgh Post-Gazette reporter Ray Sprigle won a Pulitzer Prize for exposing Black\u2019s membership in the Ku Klux Klan in the 1920s, and editorial boards and politicians demanded that he step down.<\/p>\n

Black publicly responded on October 1, 1937, with an 11-minute address made available across the U.S. via radio \u2014 by the Hugo Black archive\u2019s account, the first such broadcast any justice had ever made. He admitted the charge (\u201cI did join the Klan\u201d) but maintained that he had resigned years earlier, kept no ties to the group, and held no racial or religious prejudice. The Post-Gazette put the audience at roughly 50 million, second, it said, only to the radio audience for King Edward VIII\u2019s abdication in 1936. The address did its work: Polling showed Americans who wanted Black to resign dropped from 59 to 44 percent. Black took his seat on October 4, 1937, and proved to one of the court\u2019s most ardent defenders of civil rights for Black Americans.<\/p>\n

A justice takes on the bicentennial<\/strong><\/p>\n

In 1987, with the country gearing up to celebrate the Constitution\u2019s 200th anniversary under a commission led by the recently retired Chief Justice Warren Burger, Justice Thurgood Marshall declined to join in. Speaking on May 6 to a lawyers\u2019 group in Hawaii, Marshall remarked that the Framers\u2019 judgment did not strike him as especially wise and described the document they wrote as \u201cdefective from the start\u201c \u2013 being, in his view, a charter that had protected slavery, shut women out of the vote, and that took a civil war and a series of amendments to set right.<\/p>\n

The Maui speech drew front-page coverage (The Washington Post headline read \u201cMARSHALL BLASTS CELEBRATION OF CONSTITUTION BICENTENNIAL\u201d) and a conservative backlash, with one legal group going so far as to call for his resignation on the theory that Marshalls\u2019 words \u201creflect[ed] a deep-seated bitterness and dislike that impair his capacity.\u201d Others criticized Marhsall for misreading the Founding and defended the Constitution\u2019s Framers, which was responded to at length in many a law review article. To be fair, the response was not all critical, and some received the speech well. For his part, Marshall did not address the critics and reprinted his address in several law journals.<\/p>\n

Calling a candidate a \u2018faker\u2019<\/strong><\/p>\n

A more recent moment of a justice entering the political fray occurred when Justice Ruth Bader Ginsburg \u2013 in a string of interviews with The Associated Press, The New York Times, and CNN \u2013 went after the Republican presidential nominee, Donald Trump, in July of 2016, calling him \u201ca faker,\u201d pressed the point that he had not released his tax returns, said she could not picture the country with him as president, and quipped that her late husband would have judged it time to decamp for New Zealand. As NPR\u2019s Nina Totenberg reported, no modern justice she knew of had ever \u201cpublicly criticize[d] a presidential candidate.\u201d<\/p>\n

The New York Times editorial board told Ginsburg to give up the political commentary, while Sen. Mitch McConnell called the comments inappropriate and Chuck Grassley said she should stay out of it. Trump did not remain silent, tweeting that her \u201cmind is shot\u201d and demanding that she resign. Ginsburg put out a statement describing her remarks as \u201cill-advised\u201d and conceded that judges ought not to comment on candidates for office.<\/p>\n

Arguing about whether the court is political<\/strong><\/p>\n

More recently, several justices have weighed in publicly on the question of whether the court is political \u2013 a subject that is arguably, in and of itself, political. In 2018, Trump dismissed an adverse ruling which held the administration could not deny asylum to individuals who crossed the border illegally as the work of an \u201cObama judge.\u201d Chief Justice John Roberts pushed back, saying that \u201cwe do not have Obama judges or Trump judges.\u201d Trump replied in a tweet: \u201cSorry Chief Justice John Roberts, but you do indeed have \u2018Obama judges,\u2019 and they have a much different point of view than the people who are charged with the safety of our country.\u201d (As many media outlets, including SCOTUSblog, have reported, this has been far from Trump\u2019s only criticisms about the Supreme Court and the justices \u2013 especially following its tariffs decision).<\/p>\n

In 2021, speaking at a center named for McConnell, Justice Amy Coney Barrett insisted that the justices are not \u201ca bunch of partisan hacks.\u201d The same year, Justice Stephen Breyer published a book and embarked on a public tour arguing that the court is not a political body and warning against proposals to add seats to it. And in 2022, after the court overturned Roe v. Wade<\/em> in Dobbs v. Jackson Women\u2019s Health Organization<\/em>, Justice Elena Kagan said more than once that judges put their legitimacy at risk when they come across as \u201cpolitical or partisan.\u201d<\/p>\n

Last term, as well as this one, brought some additional reflections on politics from the justices. In July, Justice Ketanji Brown Jackson said that the state of American democracy is what keeps her up at night and that she is \u201cnot afraid to use [her] voice.\u201d She called some of the court\u2019s recent decisions an \u201cexistential threat to the rule of law\u201d and warned that these risk making the court appear political. And in April 2026, in an address at the University of Texas that raised some eyebrows, Justice Clarence Thomas linked \u201cprogressivism\u201d to Stalin, Hitler, Mussolini, and Mao, and said that the audience should find \u201cthe same level of courage that the signers of the Declaration had \u2026 It may mean speaking up in class tomorrow when everyone around you expects you to live by lies. It may mean confronting today\u2019s fashionable bigotries such as anti-semitism \u2026 It may mean running for your school board when you see that they are teaching your children to hate your values and our country.\u201d<\/p>\n

The court and politics, still<\/strong><\/p>\n

Critics of the current court, from those troubled by Thomas\u2019 remarks on progressivism to those skeptical of Jackson\u2019s statement about existential threats to the rule of law, at times speak as though the current justices publicly wade into politics in a way that previous courts never approached. History very much suggests otherwise.<\/p>\n

As noted at this article\u2019s start, Robert Dahl wrote in 1957 that Americans are \u201cnot quite willing to accept\u201d the court as a political institution and \u201cnot quite capable of denying it.\u201d If anything, the preceding two centuries show that certain justices, at certain times, felt much the same way.<\/p>\n

Read more Penultimate relists: papers, parents, and procedural puzzles<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Scholar Robert Dahl, writing back , once remarked that \u201cAmericans are not quite willing to accept the fact that [the Supreme Court] is a political institution and not quite capable of denying it; so that frequently we take both positions at once.\u201d Read more Court rules on gun rights, immigration, and pesticide labels Generally, the […]<\/p>\n","protected":false},"author":1,"featured_media":272,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[],"class_list":["post-273","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-scotus-focus"],"yoast_head":"\nWhen justices wade into politics - American Service Review<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/americanservicereview.com\/?p=273\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"When justices wade into politics - 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