Abstract
The appointment of Justice Amy Coney Barrett, just days before the defeat of President Trump at the polls, reenacted one of the oldest stories in American politics. The Federalist Party, defeated by Thomas Jefferson at the polls in 1800, made sure to fill every possible judicial position prior to Inauguration Day.1 President Jefferson responded by treating the federal bench as a partisan redoubt, against which he deployed a range of political tools—including legislative elimination of courts and impeachment of judges.2 Chief Justice Marshall famously responded by claiming for the Court the authority “to say what the law is.”3 We have been fighting this battle between politics and law ever since.
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