Professor’s new book examines political tendencies of early Supreme Court

UNIVERSITY PARK, Pa. — When Rachel Shelden was researching her first book on the social lives of federal politicians in pre-Civil War-era Washington, D.C., she kept coming across accounts of Supreme Court justices fraternizing with members of Congress and the executive branch.

“I kept seeing the justices everywhere,” said Shelden, director of Penn State’s George and Ann Richards Civil War Era Center and associate professor of history. “They were at all the dinners, all the parties. They were always invested in what was going on with congressmen. Naively, I thought this was unusual, until I started researching more about it.”

Thirteen years of work later, Shelden has produced her latest book, “The Political Supreme Court: A Forgotten History,” a thorough examination of the overtly partisan activities of court justices during the first century of American democracy published by the University of North Carolina Press’ W. Hodding Carter III Books trade imprint.

While conventional wisdom tends to view today’s Supreme Court as largely standing apart — at least in theory — from the political activities of the other two branches of the federal government, Shelden argued in the book that the court was very much a political institution “both by design and in practice” from its establishment up until the final years of the 19th century.

“The court was designed to have justices who were representative of the country — what they called ‘judicial representation’ at that time,” Shelden said. “Each justice served as representative of one region of the country — one circuit — and in each region, Americans really guarded what they thought of as their right to having a justice on the Supreme Court that hailed from and reflected the values of their circuit.”

Representation was not just a theory, Shelden said, but operated in practice through “circuit riding,” in which each justice had a specific region of the country where they served and presided over federal trials.

“Circuit riding forced them to work closely with local communities,” she said. “Justices went out on circuit and had to be responsible to those people. And circuit riding lasted for 100 years for good reason — people wanted it.”

The practice of judicial representation was possible because Supreme Court justices were not considered the final authority on the Constitution. That role, Shelden said, belonged to the people.

“Today, we are very uncomfortable with the idea of constitutional uncertainty, but the founding generations were much more uncomfortable with the idea that an unelected judicial body would have that kind of authority,” she said. “This was an experiment in constitutional governance that had never really succeeded before, and so people were constantly negotiating and debating what the Constitution ought to be.”

Because they didn’t have final constitutional authority, justices could take part in constitutional conversations outside the courtroom, including writing opinion pieces in newspapers and helping to craft legislation, Shelden said.

They also actively participated in electoral politics, including supporting friends and colleagues and even running for office themselves. According to Shelden, 19 of the court’s first 51 justices were presidential candidates, including five during the 1860 election — “a possibility that we can’t even fathom now,” she said.

Shelden devoted each chapter of the book to one or two Supreme Court justices engaged in uniquely political activities, including the court’s longest-serving chief justice, John Marshall, who was much more of a “political animal” than he was later portrayed to be, Shelden said.

“He was very good at his job on the court, but he also was very invested in newspaper politics and the personal politics of networks on circuit. But for some reason, we can’t get rid of the myth that he separated the Supreme Court from the political world,” she said.

Some of Shelden’s other profile subjects include Justice John McLean, who ran for president on multiple occasions, and Thomas Todd, a Kentuckian who was the first justice from what was then known as “the West.” She also details Justice Smith Thompson’s campaign for governor of New York in 1828, during which he never left the bench, and Justice Salmon P. Chase’s instrumental role in writing Reconstruction legislation.

The creation of the Circuit Courts of Appeals in 1891 and several other developments, including the solidification of two distinct political parties, effectively put an end to the political court, Shelden said.

“There was a fluid political world throughout the 19th century in which parties would grow and die very easily,” she said. “But then in the 1880s and 1890s, with the growth of the secret ballot, party discipline, primaries — all those things come together to form a long-lasting binary between Democrats and Republicans that had never really existed before.”

One thing Shelden said she hopes readers take away from the book is that the justices of this era “weren’t just politicians by other means.”

“Justices absolutely engaged in real legal analysis, but because they joined the bench after serving most of their career in politics, they also had clear political positions,” she said. “So, most Americans knew what to expect when constitutional issues — issues that affected the shape of their government — came before the court.”

The past is very much “a foreign country,” and the Supreme Court of the 19th century was very different from the court of today, Shelden said. Still, she noted, there are probably some lessons the current justices could learn from the book.

“The early American justices had regular interaction with the people and an understanding of their role as being representative of a community,” she said. "This history reminds us that the court has not always been isolated in Washington, and it doesn't have to be so removed from the people today."