One of the many political myths to which Americans continue to cling is the idea that the Supreme Court is an “non-political” institution and that its traditions and institutional framework are sacrosanct.
The court has never been non-political, of course, and has always been composed of political appointees closely connected to elected officials in Washington.
Indeed, the truly political nature of the court is well documented. Its politics can take many forms. For an example of its role in political patronage, we need look no further than Earl Warren, a one-time candidate for president and governor of California, who was appointed to the court by Dwight Eisenhower. It is widely accepted that Warren’s appointment was payback for Warren’s non-opposition to Eisenhower’s nomination at the 1952 Republican convention. The proposition that Warren somehow transformed from politician to Deep Thinker after his appointment is unconvincing at best. Or we might point to the famous ‘switch in time that saved nine’ in which Justice Owen Roberts completely reversed his legal position on the New Deal in response to political threats from the Franklin Roosevelt administration. Indeed, Supreme Court justices are politicians, who behave in the manner Public Choice theory tells us they should. They seek to preserve and expand their own power.
Similarly dubious is the idea that the court must be composed of nine judges and that the US Senate has an obligation to appoint new members when a vacancy occurs. It is even widely assumed that the US Constitution dictates the size and makeup of the Supreme Court. In truth, the Constitution is silent on this matter, the Court has not always been composed of nine judges, and there have not always been an odd number of justices. At times, the Court has functioned on a super-majority model.
This post was published at Ludwig von Mises Institute on Nov. 24, 2016.
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