David Litt, a former Obama speechwriter, is the author of “Democracy In One Book Or Less,” which will be published this Tuesday by Ecco.
Not since the 1930s has the role of federal courts been more heavily scrutinized - or more polarizing. Supreme Court confirmation battles have become increasingly contentious, and confirmation votes more clearly divided along party lines. President Trump and Senate Majority Leader Mitch McConnell openly boast about “flipping” courts from red to blue. Democrats, meanwhile, find themselves praying for the continued good health of Ruth Bader Ginsburg. Yet most Americans don’t know the true history, role and powers of the judicial branch. Here are just a few of the things even I got wrong as I began researching my book on American democracy.
Myth No. 1: The judiciary was designed as a check on Congress.
It’s often taken for granted that our founders gave judges the power to interpret the Constitution — and handed the Supreme Court the power of judicial review. “The judiciary’s main powers over Congress are judicial review and judicial interpretation,” reads an article from Encylopedia.com. Under the judicial branch’s “checks on the legislatures,” USConstitution.net similarly lists “judicial review.”
While it’s certainly true that judicial review gives the Supreme Court the power to overturn federal laws, that’s not the way our founders — or our earliest justices — imagined that the court’s power would generally be used. In school, I learned Chief Justice John Marshall’s opinion in Marbury v. Madison, the 1803 case that established judicial review. It wasn’t until writing “Democracy in One Book Or Less” that I learned something else: Marshall’s court never overturned a federal law again.
Marshall did, however, frequently overturn state laws. Judicial review was initially imagined not as a way for the judiciary to check Congress but as a way for the federal government to check the states. The Supreme Court wouldn't overturn another federal law until its infamous Dred Scott decision in 1857 - hardly an illustrious precedent.
Myth No. 2: Supreme Court justices necessarily serve for life.
“The Constitution states that Justices ‘shall hold their Offices during good Behaviour,’ ” explains the Supreme Court’s website. “This means that the Justices hold office as long as they choose and can only be removed from office by impeachment.” The website Sporcle writes, “In the United States, Supreme Court Justices serve for life, which is why it becomes such a newsworthy event when a spot opens up.”
But this isn't quite right. While the Constitution does say that federal judges can be removed from the bench only by death, retirement or impeachment, it doesn't say where on the federal bench they must serve. In other words, justices must remain judges for life - but not necessarily justices for life.
Gabe Roth, the founder of the nonpartisan reform organization Fix the Court, says that this distinction allows Congress to term-limit members of the Supreme Court. Under his proposed plan, justices would be confirmed to 18-year terms, after which they would remain in the judiciary but be rotated down to a lower court, allowing the president to pick a replacement (current justices would be grandfathered out of the plan).
Myth No. 3: The Constitution gives the justices final authority on laws.
History.com claims, “The Constitution granted the Supreme Court ultimate jurisdiction over all laws.” And, once again, we need look no further than SupremeCourt.gov for a description of the court as “the final arbiter of the law.”
Yet the court's self-description makes a rather glaring omission: The justices are the final arbiters of the law only because Congress assigned them that role. Nothing in the Constitution gives the Supreme Court that power. In fact, as Yale Law School professor Akhil Amar notes in "America's Constitution: A Biography," Congress controls "appellate jurisdiction," the rules that decide which cases go to which courts. Today, our court system is a single pyramid, with the nine Supreme Court justices at the top. But for the first hundred years of American history, our court system contained multiple pyramids. In many cases, second-tier courts had final, unappealable say, with the Supreme Court cut out of the process.
It was only as America became riven by fault lines - regional, partisan or both - that the courts came to be seen as a refuge from politics and stewards of the public trust. In 1891, Congress surrendered its authority over appellate jurisdiction, granting the Supreme Court the right to review any federal case it pleased. In 1925, the justices were also given the right to refuse to hear any case they didn't want to. The court has thus been able to call itself the "final arbiter of the law" for nearly a century - but even today, that power is contingent on Congress's sense that the court is wielding it responsibly.
Myth No. 4: The structure of the judiciary separates courts from politics.
"You start with the premise, the principle, the almost First Commandment, that politics have absolutely no role in the courtroom,"said Judge Justin Walker, a Mitch McConnell protege who is likely to be confirmed to a seat on the powerful Court of Appeals for the D.C. Circuit. Building on another myth, Mental Floss claims, "The lifetime appointment is designed to ensure that the justices are insulated from political pressure and that the court can serve as a truly independent branch of government." Both capture a common view: Judges can and should be completely independent from the political process.
Yet it has never been possible to separate politics from the judiciary. The very first chief justice, John Jay, spent his term on the bench planning his run for governor of New York. The moment the opportunity arose, he left the court for the campaign trail. In recent decades, the connection between the judiciary and partisan politics has arguably grown tighter than ever. Wealthy donors now fund presidential candidates' campaigns mindful of the judges they'd nominate, just as they support the campaigns of the senators who approve judges and push the amicus briefs that persuade them. In many cases, donors even play a role in confirmation battles, funding ads pressuring senators to vote for their preferred candidates. Federalist Society Co-Chairman Leonard Leo has likened modern judicial confirmations to political campaigns.
Judges, meanwhile, seem to have embraced partisan politics despite Walker's "First Commandment." Justices Clarence Thomas and Antonin Scalia, for example, attended what The Washington Post described as "private political meetings" run by the conservative Koch brothers in 2007 and 2008, despite their theoretically impartial positions on the bench. Brett M. Kavanaugh, meanwhile, blamed his contentious confirmation hearings on Democrats in general, and the Clintons in particular, before saying, "What goes around comes around."
Myth No. 5: FDR’s ‘court packing’ scheme didn’t work.
No discussion of judiciary myths is complete without a mention of Franklin Roosevelt's ambitious scheme - after key portions of his New Deal were overturned by a highly conservative Supreme Court - to expand the court to as many as 15 seats and fill them with his allies. Historian Michael Parrish has said that FDR's plan met a "humiliating political defeat." Writing for Real Clear History, Daniel Glover called the plan a "politically foolish mission."
FDR's courts bill never passed, and, as Jeff Shesol, author of "Supreme Power: Franklin Roosevelt vs. the Supreme Court," recounts, even a top White House aide agreed that "we have played a good hand badly." Yet this badly played hand may nonetheless have saved the New Deal. With no choice but to fight back against reformers, conservative justices began bending over backward to demonstrate that they didn't need to be reformed. Judges who once overturned minimum-wage laws began supporting them overnight. In the year after unveiling his courts bill, FDR went undefeated in New Deal cases.
As a court expansion plan, Roosevelt’s scheme was unsuccessful. But as a court reform plan - an effort to spend political capital to overcome judicial resistance to his agenda - his ambitious gambit paid off.
Five Myths is a regular feature from The Washington Post.