Penn State historian argues Supreme Court has always been political

October 20, 2020
Rachel Shelden, associate professor of history and director of the Richards Civil War Era Center, discusses the political history of the Supreme Court on this week's episode of the Democracy Works podcast.

Rachel Shelden, associate professor of history and director of the Richards Civil War Era Center, discusses the political history of the Supreme Court on this week's episode of the Democracy Works podcast.

IMAGE: Penn State

UNIVERSITY PARK, Pa. — Amy Coney Barrett’s nomination to the Supreme Court has reignited conversations around how political the court is or should be.

To understand the court’s current political alignment, Rachel Shelden, associate professor of history and director of the Richards Civil War Era Center, said it’s helpful to look back at another time when the United States was deeply polarized — the Civil War era.

Shelden discusses the Supreme Court’s politics and power on this week’s episode of the Democracy Works podcast, produced by the McCourtney Institute for Democracy and WPSU.

“The Supreme Court justices in this period were creatures of partisanship,” Shelden said. ”Each president would appoint a justice or would nominate a justice from their political party. Typically, from another political office.”

The court’s increased power today makes its partisan actions seem more impactful than in previous eras in history, Shelden said.

“Our vision of the Supreme Court today as this high body that has the ultimate authority over the Constitution,” she said. “In the 19th century, the people considered themselves to be the ultimate authority on the Constitution and they would grant some of this power to the executive, the legislative, and the judicial branches ... but none of those had a supreme authority. Ultimately, the people did.”

Barrett’s nomination and confirmation process also brought to light questions about originalism on the court. Again, Shelden said the term and how it’s applied on the court has taken on a different meaning over the past 50 years.

“There were references to what the founders believed, but it wasn't any kind of universal theory of how the Constitution ought to be interpreted because, again, the court is not interpreting the Constitution very often. “The second version of originalism, which Antonin Scalia was a very big part of, changed their interpretation of what originalism meant to say it was this original public meaning and they divorced that from the history.”

For more on politics and the Supreme Court, read Shelden’s op-ed in the Washington Post or listen to the Democracy Works episode at wpsu.org/democracy or by searching “Democracy Works” in Apple Podcasts, Spotify or any podcast app.

Last Updated October 20, 2020