Historian Rachel Shelden, author of The Political Supreme Court: A Forgotten History, joins me to unpack how deeply political the Supreme Court actually was for its first century, why the Court’s modern claim to be apolitical is a relatively recent invention, and why understanding that history matters for today’s debates over court reform and legitimacy.
Key Takeaways
* The Supreme Court was designed to be a political institution: 19th-century justices rode circuit, participated in state and local politics, ran for office, and even wrote legislation and presidential addresses.
* Lifetime tenure didn’t always mean staying on the Court. Many justices left for other roles they saw as equal or better, including David Davis, who left the Court to become a U.S. Senator from Illinois in 1877.
* The Court’s image as an apolitical, isolated institution developed largely at the end of the 19th century and through the 20th, driven in part by the professionalization of lawyers and a reframing of the Constitution as a legal rather than political document.
* Marbury v. Madison‘s reputation as the moment the Court became apolitical is, according to Shelden, more myth than history, a narrative that took hold around the Court’s 1890 centennial.
* Originalism claims historical grounding, but Shelden argues it often isn’t doing rigorous history. It selectively cites the past rather than engaging with the full, contested range of 19th-century constitutional debate.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
The post If You Can Imagine It, The Supreme Court Used To Be Even More Political appeared first on Above the Law.
Historian Rachel Shelden, author of The Political Supreme Court: A Forgotten History, joins me to unpack how deeply political the Supreme Court actually was for its first century, why the Court’s modern claim to be apolitical is a relatively recent invention, and why understanding that history matters for today’s debates over court reform and legitimacy.
Key Takeaways
* The Supreme Court was designed to be a political institution: 19th-century justices rode circuit, participated in state and local politics, ran for office, and even wrote legislation and presidential addresses.
* Lifetime tenure didn’t always mean staying on the Court. Many justices left for other roles they saw as equal or better, including David Davis, who left the Court to become a U.S. Senator from Illinois in 1877.
* The Court’s image as an apolitical, isolated institution developed largely at the end of the 19th century and through the 20th, driven in part by the professionalization of lawyers and a reframing of the Constitution as a legal rather than political document.
* Marbury v. Madison‘s reputation as the moment the Court became apolitical is, according to Shelden, more myth than history, a narrative that took hold around the Court’s 1890 centennial.
* Originalism claims historical grounding, but Shelden argues it often isn’t doing rigorous history. It selectively cites the past rather than engaging with the full, contested range of 19th-century constitutional debate.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
