Why Supreme Court Judging Is Not Necessarily Partisan

I recently came upon this review of Richard Brookhiser’s new biography of Chief Justice John Marshall by Yale Professor John Fabian Witt. The review criticizes Brookhiser’s take on Marshall as a justice who furthered the law and originalism rather than politics. Instead, Witt believes that Marshall’s judicial career was defined by the goal of advancing his party’s political agenda. For Witt, Brookhiser is engaged in a type of myth-making that is harmful to our understanding of the law and of what we can expect from courts.

I will explore this point in a second, but it is worth point out that Witt is writing this review with an eye towards present day politics. He concludes the review:

Marshall’s ability to carry out the Federalist agenda for a generation after the party’s decisive defeat at the polls stands as a warning for what we may expect to see in our own time. Accounts of his life that downplay his politics make it harder to grasp this key point. . . . The truth is that law is not independent of party. It never has been. Law is not reducible to party, either. But now more than ever we need a realistic account of how our courts work, one that can recognize the law’s long-standing and durable interconnections with the world of the partisan operative.

Clearly, Witt’s point is that the Republicans may keep a majority on the Supreme Court that will decide cases based on what that majority claim is original meaning or law, even though the country may have rejected President Trump and the congressional Republicans at the polls. We should not, Witt implies, accept such apolitical claims. Those Republican Justices will be promoting their party’s political agenda.

After a generation of being lectured to by historians about how originalist law professors are presentist, but historians are not, such presentism seems ironic coming from a historian.

Now, back to Witt’s claim that Marshall—and all justices—are involved in party politics. If what is meant is simply that the justices are people and have different ideas about what the law is, and those ideas are often in accord with the political parties to which they belong, then this is clearly true. Marshall’s ideas on the law are not surprising given that he was a moderate Federalist, just as Scalia’s ideas about the law are not surprising given that he was a conservative Republican.

But I think Witt means more than this. He seems to be suggesting that ideas on law cannot be unrelated to party, in part because the original meaning cannot be determined. And here I would beg to differ. One can attempt to determine the original meaning, even if there was not a consensus at the time of its enactment. In that situation, one follows the interpretation that has the greater support for it. And if one is genuinely seeking the original meaning, then that is not party politics, but law.

Imagine for a minute that there were two political parties—one devoted to originalism and one not. (While Republicans seem more devoted to originalism, I am not suggesting that this contrast is one between Republicans and Democrats.) In that situation, the originalist party would be a political party, but it would also—in my view, at least—represent law and not politics. By dismissing originalists as simply about politics, one ignores an essential distinction—that the nonoriginalist considers his own values, while the originalist considers the values placed into the Constitution.

How does Marshall stack up in terms of originalism? While some scholars have emphasized strategic parts of Marshall’s opinions (such as the order of issues considered in Marbury), I have generally found his opinions to be almost always defensible in terms of originalism.

This is not to say that Marshall always reached what I would regard as the original meaning. But I do not find any of his opinions to be clear departures from the original meaning, as I do many opinions from various other courts, such as the New Deal, the Warren, and the Burger Courts. And some of his opinions are masterpieces of originalist reasoning, such as portions of Marbury.

For these reasons, I regard him as the Great Chief Justice.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on January 30, 2019 at 12:38:37 pm


This is timely as I am just starting Hobsons book on Marshall.

Recently at Originalism Blog (and perhaps elsewhere) an argument has been advanced that originalism, if it be understood to be an attempt to arrive at original meaning via a study of the text of COTUS, will and must fail BECAUSE, the meaning of COTUS was NOT resolved / solidified until after several decades of SCOTUS opinions.
1) Any thoughts on this?
2) It strikes me that Witt, in his attmept to so characterize Marshall as a party partisan is in effect attempting to advance the argument that originalism is defective because a) its meaning was not sufficiently determinate until well into the 18th century and b) given that Marshall was a partisan jurist, such "determinations" such constitutional *fixedness* ought to be denied as nothing more than the manipulations of a Federalist partisan.

Thus we are free to disregard THAT reading of COTUS' text as partisan hackery and proceed to "re-imagine' what the text of COTUS actually means.

read full comment
Image of gabe
on January 30, 2019 at 13:16:43 pm

What matters to the originalist analysis is the meanings of the words used in the Constitution at the time they were used. That meaning is discerned from their meanings when written, the Constitutional context in which they are used, and the overall meaning and purpose of the Constitution as understood by those who adopted it. Thus, the word “property” must be understood as those who wrote the word in the 18th Century understood it. This does not limit the application of a Constitutional provision using the word “property” only to those types of property know in the 18th Century. Rather it allows the application of the meaning of the word to the facts presented to allow first, a finding that the facts presented involve “property” and second enable the Constitution to be applied in its original understanding of the term.

What is eliminated in this analysis is the expansion of the Constitution into areas not originallly contemplated. So there are no “unenumerated” rights, no reach of the Commerce Clause into solely state activities, and no “living” Constitution. This is not a political approach, but a philosophical approach, one that recognizes that the courts are not there to enact political provisions, but simply to reason to a decision by applying existing legal words as understood in their enacted context to the facts of the case before the court.

read full comment
Image of Sheldon Chernove
Sheldon Chernove
on January 30, 2019 at 13:54:37 pm

An originalist theory of constitutional interpretation that allows for stare decisis is a theory at odds with itself.

read full comment
Image of EK
on January 30, 2019 at 14:01:46 pm
Image of Mike Rappaport
Mike Rappaport
on January 30, 2019 at 14:03:24 pm

I disagree with much that is in Gienapp's book about the lack of clarity in the Constitution. I wrote about some of that here: https://www.lawliberty.org/2019/01/24/parchment-barriers-and-the-determinateness-of-constitutional-text/. I hope to write more in the future.

read full comment
Image of Mike Rappaport
Mike Rappaport
on January 31, 2019 at 06:19:58 am

What is sad is that in all of the article and comments no one mentions the best resource an originalist can use, The Federalist Papers. What did the writers of the Constitution intend for the Commerce Clause to mean, look at Federalist No. 22 (4th para), Federalist No. 42 (9th para), Federalist No. 44 (8th para) and Federalist No. 56 (6th para).

Also when you want to understand the meaning of a word as the Founder's understood it, look in a PERIOD dictionary like Webster's 1828 dictionary.

The tools are there, just use them.

read full comment
Image of Jim Lewis
Jim Lewis

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.