If you caught this week’s Mastering the Room podcast with
—Georgetown law professor and Supreme Court expert—you know we dug deep into what’s happening with the courts.But Steve doesn’t stop at the mic. He also wrote one of the sharpest, most mind-shifting chapters in We Hold These “Truths”: How to Spot the Myths That Are Holding America Back. In it, he dismantles the myth that the courts are above the political fray. (Spoiler alert: they’re not, never have been, never will be. And pretending they are is hurting us.) In fact, more politics in the court might just be the solution to the court’s legitimacy crisis.
So today, we’re offering two ways to get more Vladeck:
🎧 LISTEN: Catch the complete chapter in audio form right here. Every detail, every argument, every solution.
📖 READ: Below you’ll find an abridged excerpt that covers the core argument — how the Court has become less accountable while growing more powerful.
Ready to rethink everything you thought you knew about judicial neutrality?
Let’s go.
Order your copy of We Hold These “Truths”: How to Spot the Myths that are Holding America Back at Amazon | Barnes & Noble | Politics & Prose
“The Supreme Court Has Become Too Political”
The Supreme Court's public approval has plummeted to record lows, dragging its once-sterling reputation down with it. Just before the court's fall 2023 term, Gallup found that only 41 percent of Americans "approve" of the court. Worse, fewer than half of Americans have even "a fair amount" of trust and confidence in what Alexander Hamilton promised would be "the least dangerous branch." For the 50 years prior, over two-thirds of the country had at least a fair amount of trust in the highest court.
When did it change? It fell below 50 percent only in 2022—shortly after the justices overruled Roe v. Wade and eliminated a constitutional right to pre-viability abortions. It hasn't risen above 50 percent since.
Ask a typical SCOTUS hater what's so objectionable about the institution, and they're likely to tell you that the court has become "too political." This generally means a couple of things. One, that, unlike in the past, modern justices are essentially extreme partisans in robes rather than the neutral arbiters we expect them to be. And two, that the court's rulings are, more than ever, political acts intended to benefit one party over the other rather than faithful applications of neutral legal principles.
It's easy to see where that impression comes from. The obvious culprit is the nomination and confirmation process for justices, which has become one of the hottest battlefields in the partisan political wars. In 2016, the Republican-controlled Senate blocked President Obama's nomination of Merrick Garland without so much as a hearing. In 2018, Justice Brett Kavanaugh's confirmation was narrowly approved along almost strict party lines. And in 2020, Justice Amy Coney Barrett's rushed confirmation saw all 52 Republicans voting in favor and all 48 Democrats opposed.
The recent confirmation battles not only condition Americans to view the court as a political piñata; they have also left us with a court divided along ideological lines that perfectly mirror the political parties of the president who appointed each justice. This is the first time in history with perfect partisan alignment between the two branches. The last conservative Democrat retired from the court in 1993. The last liberal Republican stepped down in 2010. This division was evident in the court's most recent term, where it issued 32 non-unanimous decisions. Although that number is not high by historical standards (the court used to hear far more cases), what was unusual was the frequency with which the justices divided in a particular way: Across those 32 cases, the most common lineup featured the six Republican appointees in the majority and the three Democratic appointees in dissent. And the runner-up wasn't close.
It's not just that the court is splitting along partisan lines in the greatest number of cases; it's that those cases tend to be the court's most significant rulings. From abortion and affirmative action to religious liberty and redistricting, the loudest critiques of the current court focus on the six Republican justices and claim that they are sacrificing legal principle (and, through it, the court's credibility) in favor of doing . . . whatever they want—precedent, public opinion, and prudence be damned.
Yet the indictment that SCOTUS has become too political rests on an assumption that rarely gets questioned. It assumes that, in some bygone kumbaya era, things were different. The court was better and could be trusted because justices of yesteryear were above (or, at least, aloof from) politics. They kept their personal views quiet and considered cases with cold judicial neutrality. In other words, they stayed in their lane, which is to just "call balls and strikes," as Chief Justice John Roberts famously described his would-be job at his 2005 confirmation hearing.
That idea certainly does sound nice. Only one minor snag: It's completely false. The belief in an apolitical judiciary is a myth—and a dangerous one. The Supreme Court has never been above politics. Even more to the point, the Supreme Court shouldn't be above politics. And if anything, the view that the court is supposed to be above politics has helped precipitate the true crisis facing the Supreme Court today.
That true crisis is not the one we think of whenever the press reports another divisive SCOTUS decision. It is that, to an extent that we have never seen in American history, the justices are not accountable to the other branches of government, especially Congress (or really, to anyone). Nor do they believe they should be. Justice Samuel Alito said this quiet part out loud in a July 2023 interview with The Wall Street Journal, asserting that "no provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period."
Alito is wrong as a matter of text (Article III of the Constitution expressly authorizes Congress—and only Congress—among other things, to make "regulations" of the Supreme Court's caseload). He's wrong as a matter of history (he himself holds a seat created by Congress in 1837). And he's wrong as a matter of common sense (without congressional approval, the court would have no money, no building, no staff, and no ability to do much of anything). The Constitution envisions an independent judiciary to check majority tyranny, but it doesn't allow for tyranny by unelected judges.
And yet the more we indulge the myth that the court should not be political, the more we overlook how politics have historically been the key constraint on the court and its justices. The counterintuitive solution to the court's legitimacy crisis is to reintroduce politics—that is, the right kind of politics—not to reject them entirely.
The Supreme Court Has Always Been Political
When I mention the word "politics," you're likely thinking of fights between the parties, naked grabs for power when one team is in charge, and all the worst types of contemporary gamesmanship. That's not what I'm talking about here. Our politics—the type that the courts have been enmeshed with since the start—are the debates about who holds which powers in society. Some call this "high" politics (in contrast to the "low" politics of contemporary partisan divides). But whatever the term, the idea is the same: that the way our institutions assert their powers and seek to empower and constrain one another is very much "political." To pretend that the court, as one of the three branches of government, should somehow be above these discussions is both wrong and unhelpful. The court is made up of justices with political opinions, nominated by presidents with political opinions, and confirmed (or not) by senators with political opinions. Plus, we need them to decide questions about our political relationships—that's one of their most important roles. In these ways, the courts have always been political.
Recently, we've drifted away from this shared understanding. It's no coincidence that this shift coincides with the court increasingly overstepping its bounds of accountability. Or that while that has been happening, public trust in the judiciary as an institution has dropped to an all-time low.
A quick trip through the court's origins helps put into proper context the moment in which we find ourselves.
The Constitution created the Supreme Court but left almost all the details (and the personnel) to be filled in by the political branches. Not only does the text of the Constitution provide that justices will be nominated by the (politically accountable) president and confirmed by the (politically accountable) Senate, but the Constitution also leaves to those branches everything from how many justices there will be to the nature and size of the court's caseload to the justices' salaries (which can't be diminished once they are fixed). In all these ways, the Constitution directly involves politics in the court by ensuring it's made up of politically chosen judges who can only exercise their powers with the approval of the political branches and other government institutions.
That's the obvious sense in which politics have always been part of the Supreme Court. But there's a more subtle sense that, in many respects, is even more important: how the justices use politics in their decision-making, including how they shape and time their rulings to manage the court's relationship with the rest of government and society.
The less obvious sense is perhaps even more important because it shows where the seemingly untouchable power of today's court came from.
If everyday Americans know one thing about the court, they know it has the authority to declare laws to be unconstitutional. That's the court's superpower. But that power wasn't explicitly provided by the Constitution. Nope, the court only has it now because it asserted its existence in the landmark 1803 decision in Marbury v. Madison. That ruling cemented the power of "judicial review"—that is, the court's power to invalidate laws or executive actions on the grounds that they are unconstitutional. But there's a lot more to the story—and it's all about Marbury's politics.
The story begins in the aftermath of the election of 1800, in which the two Democratic-Republican candidates, Thomas Jefferson and Aaron Burr, tied for the most Electoral College votes—a result that sent the election to the House of Representatives. Knowing that one way or the other, a Democratic-Republican would soon be president, along with a Democratic-Republican-controlled Congress, the outgoing party—the Federalists—sought protection in the courts, creating a slew of new federal judgeships, which lame-duck President John Adams and the lame-duck Federalist-controlled Senate quickly filled. Just as we see today, when a party knows they are headed for the exits, they burn the midnight oil trying to install their own people—especially in jobs with lifetime appointments—to minimize the changes the incoming party can make.
Naturally, not long after Jefferson entered the White House, the new Congress repealed the lame-duck bill creating these new judgeships. This move touched off a massive constitutional confrontation and a test case known as Stuart v. Laird. How tenuous was the young Supreme Court's power at this early moment in American history? Well, while Stuart was pending before the court, Congress simply eliminated the court's entire 1802 session (again, a sign of Congress's ultimate authority over this independent branch). Although the measure was spun as a harmless housekeeping change to the court's calendar, everyone understood the not-so-subtle message Congress was sending.
Enter, Chief Justice John Marshall (a cousin of now-President Jefferson, by the way). Instead of addressing the constitutional question in Stuart and deciding whether Congress could dismantle the courts—or risking making a ruling Jefferson might ignore, which would neuter the court's power—Marshall chose option C: He avoided it altogether and answered an entirely different question. When the court sat again in 1803, in Stuart, it decided a different (and less significant) question than the one the case ostensibly presented. Instead, Marshall enshrined the principle of judicial review in a case about the nerdiest of questions—whether Congress could give the Supreme Court the power to decide, as a trial court rather than an appeals court, cases other than those specifically mentioned in Article III of the Constitution. The great irony of using Marbury this way is that the constitutional problem Marshall identified was that Congress had given the Supreme Court too much power. Even those most suspicious of Marshall's motives couldn't object to a decision in which the justices voted unanimously to limit their power.
In retrospect, what is striking about Marshall's efforts in Stuart and Marbury is how profoundly political they were. Although the background was full of partisan tension between the Federalists and the Democratic-Republicans, Marshall's politics were institutional—about establishing the court's power over the other institutions of government in a way that, in the short term, limited the court's power over the other institutions of government. The actual text of the relevant statute and the Constitution made brief appearances, but the real point was to structure the relationship among the branches in a way that, in Marshall's view, was best for the young country as a whole. That's politics of the highest order.
And to that end, in Stuart, Marshall sidestepped a major decision because the consequences of either potential outcome would have been massively destabilizing for the young constitutional system. And in Marbury, Marshall used a strange technicality and ignored key judicial principles to establish the court's power to strike down laws, an authority the Founders nowhere explicitly gave to the court. The scholarly consensus is that Marbury was "a political masterstroke"—and, just as importantly, that that was a good thing.
The politics of Marbury simultaneously allowed the court to cement its power of judicial review going forward while accommodating the political reality that the court circa 1803 was not really in a position to strike down whatever statutes it wanted to. Rather than not establish that power (in which case, the court would have been ignored) or establish it in Stuart (in which case, the court would have been destroyed), Marshall understood the need to walk a political tightrope—to preserve the court's power in the long term while keeping the other branches of government content with how it exercised power in the short term. Indeed, the court only struck down one other act of Congress before the Civil War, subtly conveying that it would use its power of judicial review rarely and responsibly. How times (and our expectations) have changed.
We could tell a remarkably similar story about the Watergate tapes case—United States v. Nixon. The Watergate special prosecutor had issued a subpoena to obtain President Nixon's secret recordings of Oval Office conversations. Nixon refused, claiming that his confidential, internal communications were protected under executive privilege. The conflict went to the Supreme Court.
The case was of enormous political importance regardless of how the court ruled—one side was going to praise the court, and the other was going to trash it. But as in Stuart, both possible rulings risked shifting the balance of power too much toward or away from a specific branch of government; either the court or the president was going to emerge too strong.
The court, recognizing this, did not ignore the conditions on the ground or the critical need to maintain the government's legitimacy, deeming these considerations too "political." Instead, once again, it compromised.
In an 8–0 ruling, Chief Justice Warren Burger (a Nixon appointee) recognized both views. He wrote that while the Constitution does protect certain executive branch communications from compelled disclosure, in this case, the special prosecutor's unique interest in accessing potentially incriminating evidence overrode that executive privilege. Judging strictly on the basis of its legal analysis, most experts agree the court's opinion in Nixon is a mess. It's awash in contradictions, unnecessary holdings, and patently unpersuasive arguments. And yet the Nixon decision is generally viewed in a positive light—as an example of the court living up to its highest institutional responsibilities. In a 2016 speech, then-Judge Brett Kavanaugh counted it as one of the "greatest moments in American judicial history."
That assessment has nothing to do with the court's reasoning—and everything to do with its political impact. Nixon's camp had considered refusing to comply with an adverse Supreme Court ruling, but the fact that the court was unanimous and that the only opinion was authored by Nixon's handpicked successor to Chief Justice Earl Warren poured cold water on the idea. In other words, what made Nixon one of the "greatest moments in American judicial history" wasn't its reasoning; it was its politics. Not because Democrats prevailed over Republicans, but because the court found a way to issue a ruling that best preserved the effective functioning of the government—without tilting the scales too far in one direction.
Similar politics played out in Brown v. Board of Education (which ended legal segregation) and other landmark cases where the court prioritized unanimity or cross-ideological majorities over unassailable legal analysis. In these vital cases, the message the court sent was more important than the specific reasoning that it provided. We know the justices didn't all agree with every word the court wrote in each case. What matters is that they agreed that speaking in one voice in those cases was a central part of the American political enterprise; these rulings were about the court as an institution, not the justices as individuals. These courts understood that the politics of the ruling—how it was perceived and put into effect—took precedence over their own personal preferences.
If we were being purists about the idea that politics should never enter SCOTUS decisions, we would think it unbecoming of the court to factor such concerns into the results it reaches and the reasoning it adopts. In the "balls and strikes" view, the court should only concern itself with the "correct" answer to the legal question presented and ignore everything else. I disagree. These cases are not departures from the "rule of law"; they are the epitome of it. They reflect a nuanced and complicated understanding of the delicate role we need the court to play in our system. A Supreme Court that, throughout its history, did whatever it wanted, whenever it wanted, without any regard for its relationship with the other branches of government, would have been a court that provoked those branches into narrowing its jurisdiction, cutting its budget, and perhaps even declining to enforce its decisions. To take one especially prominent example, it's hard to imagine that President Eisenhower would have sent the army into Little Rock, Arkansas, in 1957 in order to enforce the court's ruling in Brown if the court had spent the preceding decades running roughshod over the other branches of government. Institutional politics thus not only constrain the court; they also empower it. The idea that an institution so designed and so constrained should nevertheless pay no attention to high constitutional politics is . . . self-defeating.
That doesn't mean that all political decisions by the court are necessarily good ones. Some of the most infamous Supreme Court decisions can be criticized for the same reasons that we glorify Marbury, Nixon, and Brown. For instance, the infamous Dred Scott decision—which ruled that slaves were property, not people—was a transparent attempt to settle the political future of slavery in a single judicial ruling. Chief Justice Roger Brooke Taney and his majority ruled that because slaves weren't people, they couldn't seek relief in the courts. Ergo, no more court cases questioning slavery. Taney's politically myopic (and racist) overreach backfired. Instead of calming things down, it simultaneously angered the abolitionists in the North (who bitterly opposed slavery) and further fractured the Democratic Party into proslavery and antislavery groups. This division helped clear the path for Abraham Lincoln's victory in 1860, and the Civil War soon followed.
Similar criticisms apply to Bush v. Gore, the infamous end of the 2000 presidential election. Even if we accept Justice Scalia's defense that "someone" had to settle who won Florida's 27 electoral votes and, thus, the election, the court's 5–4 decision along ideological lines was quite clearly "political," this time in the partisan sense where conservatives ruled for conservatives. The court tried to cover itself by claiming that the ruling only applied to that one case, but that caveat only made it look more like cutthroat partisan politics—rather than a neutral principle to be applied in all future cases, including when it might help Democrats.
What separates Marbury and Nixon, on one hand, from Dred Scott and Bush v. Gore, on the other? Context is key. A ruling feels like a significant institutional decision when the Supreme Court acts together, with all justices, from all sides, in agreement. But when only some justices, particularly those with similar partisan political views, make a ruling for the whole country, it can seem less like a reasoned high-level judgment and more like just another partisan dispute dressed up in legal robes. Both of the Supreme Court's 2024 rulings in support of former President Trump—keeping him on the ballot in Colorado and recognizing at least some immunity from criminal prosecution for his alleged role in January 6—are guilty of these unfortunate optics, among lots of other shortcomings.
The answer isn't for the court to not be political; it's for the court to be responsibly political and not partisan. For much of our history, we had a court that was responsibly political. The harder question is when (and why) that changed.
The Modern Court: Too Much Power, Too Little Accountability
As should hopefully be clear by this point, the "politics" to which I have been referring are reflected not just in how the Supreme Court decides cases but in how it interacts with the other branches more generally. Historically, the courts have been involved in politics not just through their decisions but also by joining broader public debates about their role within the system itself.
For 200 years, the courts were active participants in an ongoing debate about their own role in our government. That conversation was significantly different from today because it also involved Congress and the president—the courts themselves were just one voice, and hardly the most powerful or untouchable of the three. And that conversation was profoundly influenced by and attuned to the politics of the moment. That healthy balance of powers carried on into the 20th century—until a heavy-handed law, passed 100 years ago, began to turn the tables.
Up until then, Congress had historically used its various powers to regulate the court in many ways, both big and small. This included controlling the court's caseload, deciding when and where it sat, setting its budget, determining which cases it could hear, and even managing when and how justices could retire—not just in general but in the specific cases of at least two of the court's members.
Congress used these powers not just to ensure that the court's decisions loosely reflected its preferences but to influence the court's direction more broadly. In short, Congress acted, or threatened to act, when it wanted to remind the court of its proper role. For example, when Congress wanted to prevent the court from deciding a major case testing the constitutionality of military governments in the South during Reconstruction, it took away the court's power to hear that particular dispute after oral arguments had concluded. The court later ruled (read: admitted) that Congress had the power to do so. And when Congress wanted to nudge Justice Ward Hunt off the bench after he suffered a paralyzing stroke in the early 1880s but refused to step down, it passed a bill directed solely at him—promising full benefits if he would resign within 30 days. He did. Congress pulled the same move a few decades later with Justice Joseph Lamar. And of course, we already saw the example of Democratic-Republicans canceling the court's entire 1802 term.
Beyond what Congress actually did, there's also a rich history of justices responding to even the hint of congressional intervention. When Justice Abe Fortas resigned in 1969 in the middle of an ethics scandal (which paled in comparison to more recent SCOTUS antics), it was because he feared the possibility that Congress would use the episode as a pretext not only for impeaching him but for attacking the court more generally. When Justice Owen Roberts changed his crucial vote on important constitutional cases in the middle of FDR's New Deal—an event known as the Constitutional Revolution of 1937—it wasn't a coincidence that Congress was at that moment discussing plans to expand and weaken the court. Just by debating FDR's so-called court-packing plan (not even passing it), Congress helped bring about Roberts's "switch in time that saved the nine."
In all these respects, Congress used levers as a way to keep the court—and the justices—generally in line. But Congress's most important lever is its power to sit on its hands. The Constitution protects the justices' salaries from being cut, but nothing else. In fact, the court depends on Congress to fund its building, security, computers, clerks, and everything in between. For fiscal year 2024, the justices' salaries accounted for less than 2 percent of the court's $151 million budget request. If Congress wanted to, say, leave the remaining $148 million out of its next budget, it's not clear how the Constitution would stop it.
Before you gasp in alarm at the thought of today's Congress pushing the Supreme Court around, pause to remember that they are the only ones who can. And they are, at least, subject to public scrutiny and reelection. If Congress refuses to play its role in the delicate dance of checks and balances, there's no other entity with the levers of power to hold the court accountable. If the court achieves complete independence—as many have called for—it also means they become insulated from any kind of accountability at all.
Read Stephen I. Vladeck’s full essay in We Hold These “Truths”: How to Spot the Myths that are Holding America Back by Casey Burgat | Amazon | Barnes & Noble | Politics & Prose
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