While the nation was following the Brett Kavanaugh hearings, I was thinking of what I learned about politics and the Supreme Court in writing my latest.
Consider John Rutledge, arguably the second chief justice. I say arguably because, although his friend George Washington gave him a recess appointment to succeed John Jay in the summer of 1795, and Rutledge sat for the Court’s August term (it had two in those days), the Federalist-dominated Senate refused to confirm him when it reassembled in December. Rutledge had spoken against Jay’s Treaty, a controversial agreement with Britain that the Federalist party supported. He was also called “a driveller and a fool.” So much for Rutledge, CJ.
Samuel Chase was confirmed as an associate justice in 1796, but was sometimes too hot to handle after that. He campaigned for John Adams for president and gave charges to grand juries that were (Federalist) political speeches. After the first Republican party (now the Democrats) swept Congress and the White House in the elections of 1800, Chase hung by a thread. The House impeached him at the end of Thomas Jefferson’s first term, and he was tried by the Senate in February 1805. Lame-duck veep Aaron Burr presided, despite having been indicted for killing Alexander Hamilton in a duel. Thanks to good lawyering by Chase’s defenders and blunders by the House managers, he survived, but it was a close call.
Smith Thompson was confirmed in the fall of 1823, though he had his sights on higher office. He wanted to run for president as New York’s favorite son in the free-for-all election of 1824. Thompson asked Senator Martin Van Buren for his support and dangled the possibility of backing Van Buren for the Supreme Court in return. But letters weren’t delivered, the deal being misunderstood fell through, and Thompson had to content himself with the Court. In 1828 he ran for governor against Van Buren, who creamed him, so he stayed on as associate justice.
John McLean, confirmed in 1829, was another perennial candidate. He was still hoping as late as 1856 when Abraham Lincoln suggested that he be the second Republican party’s first presidential candidate.
The last political imbroglio of Marshall’s tenure concerned Roger Taney. Andrew Jackson nominated him in January 1835, but the lame-duck Senate had enough Whigs enraged by Jackson’s war on the Second Bank of the United States to block a vote. (Taney had been a key foot soldier in Jackson’s bank war.) Providence was saving him for greater things, however. John Marshall died that summer. When a new Senate, with a Democratic majority, met in December, Taney was confirmed as chief justice.
My survey stopped with Taney’s gift to the nation, Dred Scott v. Sandford. I leave my colleagues to report whether politics has influenced the Supreme Court after that.