The Sin of Originalism: Rachel Shelden’s Forgotten History of the Political Supreme Court

Rachel Shelden (0:00)

Hello.

Andrew Keen (0:01)

My name is Andrew Keen. Welcome to Keen On America, the daily interview show about the United States.

Hello, everybody. The midterm has happened and it seems to have changed everything. Before the election, we did a show with Jacob Weisberg, a very prominent American journalist on the left, who has a new book out called or had a new book out called Profiles In Cowardice, a study of collaboration in the Trump era. It's very much of a pre-election book. In the book, one of the eight cowards that he profiled was John Roberts, the senior judge. I think that's the wrong way of putting it in the Supreme Court. The guy who runs the Supreme Court, formally or informally, Weisberg suggested that Roberts knew that Trump was a bad guy, especially in Trump 1, but he never really challenged him in Trump 2 I wonder what Jacob now thinks about the current state of American politics. He seems to suggest that Roberts was too political, taking the assumption that our Supreme Court justices should always be apolitical or above politics. My guest today, though, Rachel Shelden, might disagree. I'm not sure she would necessarily disagree with the Weisberg book, or indeed his critique of Roberts, but she certainly reminds us of a very different time in American political and legal history.

Her new book is called The Political Supreme Court, A Forgotten History, and she focuses on the political nature of the 19th century American Supreme Court. She's a professor at State College, Pennsylvania, and that's where she's joining us from. Rachel, congratulations on the book. I'm not sure if you, Weisberg, got a lot of coverage actually for the book. But I'm sure you're not going to defend John Roberts, but would it be fair to say that most people assume these days that members of the Supreme Court, either of the left or the right, should be above politics?

Rachel Shelden (2:45)

Yeah, public opinion polls show this. Actually, the court has much lower approval rating when people believe that the court is acting more politically.

So it's been a view of Americans for some time now that justices should be above or outside politics. And it's certainly the argument that many of them make. They will claim that they are not politicians in robes, that they're not political hacks. And Chief Justice Roberts very much is focused on that narrative.

Andrew Keen (3:16)

To what extent is Roberts partly responsible for creating that narrative?

I know that you wrote an interesting piece for Talking Points Memo recently, where you link to a piece by Lisa Graves about how John Roberts won over the Bush White House and remade the Supreme Court. Is Roberts' remaking of the Supreme Court one piece of this imaginary idea, an ideal, which of course is of an apolitical Supreme Court?

Rachel Shelden (4:00)

I think that he's just furthering an argument that people had started to make in the 20th century to be sure he is able to promote it more because there are no justices now who came from political positions who had a background in politics the way they did for all of the first part of American history and much of the 20th century. Justices, they leave law school, they clerk for the Supreme Court, other lower federal courts, then they have a legal career, they go through the federal courts, and then they end up on the Supreme Court. That pipeline from law through judging to the Supreme Court suggests, or at least in Roberts' telling, that there is no political nature to these folks.

Andrew Keen (4:46)

Yeah, it's almost like a legal technocracy, as if these people can be above the law.

Where did it come from? I mean, your new book focuses, as I said, on the political nature of the Supreme Court, the 19th century Supreme Court. When the founders imagined this third branch of government, how did they think of justices? And how did they think of the law? Did they imagine it was above politics? I know that you got your PhD in Charlottesville, the university that Thomas Jefferson built. What was Jefferson's sense of the role of justices in the law in maintaining American democracy?

Rachel Shelden (5:31)

Yeah, so the Framers believed that the court should be a political institution, so they designed it to be a political institution and then operated as a political institution in practice. I think one piece that sort of provides the underlying point here is that we today think about the Constitution as a legal document, and lawyers frequently talk about it as a legal document. But for the first 100 years of American history, people did not think about the Constitution that way. They thought about it as a political document with some legal elements to it. But as a document that they could access and they could talk about, it didn't belong especially to the Supreme Court. Early Americans were very skeptical of the federal courts. They were especially skeptical of the Supreme Court at various moments. As a result, what they did is they designed a court that was meant to be representative of the nation, and also that included people who had been part of other political branches. They had come from the cabinet, they had come from governorships, they had come from Congress.