The Supreme Court as an Issue in Presidential Campaigns

Abstract

The Supreme Court as an Issue in Presidential Campaigns WILLIAM G. ROSS Although the Supreme Court’s decisions have far-reaching political consequences and presidential elections profoundly affect the Court by determining who will appoint the Justices, the Court only sporadically has emerged as a significant issue in presidential campaigns. During the nineteenth and most of the twentieth centuries, the Court emerged as an issue only at times when its decisions were particularly controversial. During the past forty years, as voters have acquired more awareness of the political significance of Supreme Court appointments, the Court has become a persistent—but nearly always peripheral—election issue. Controversies concerning the Court, however, have provid­ ed some dramatic moments in presidential campaign history on the relatively rare occasions when candidates have placed the Court at center stage. Judicial issues first played a role in the election of 1800, when the controversy over the federal judiciary’s enforcement of the Alien and Sedition Acts may have helped to elect Thomas Jefferson to the presidency. Although this election preceded the 1801 appointment of John Marshall to the chief justiceship and the emergence ofthe Court as a powerful counterweight to Congress and the President, Jefferson’s election reflected wide­ spread discontent with the federal judiciary’s imposition of harsh penalties under these statutes, which were designed to stifle opposition to the policies ofPresident Adams, who steadfastly rejected attempts to lend American support to France in its war with Great Britain. During the election campaign, these laws acquired a political importance that exceeded their practical importance since Jeffersonians claimed that they represented a political attitude that threatened liberty itself.1 Opposition to the statutes and attacks on the federal judiciary’s enforcement of the laws encouraged John Adams to appoint Marshall to the chief justiceship during the waning days of his presidency. During the next two decades, the Marshall Court’s controversial decisions protecting vested property interests, expanding the power of the federal government and increasing the THE SUPREME COURT AND PRESIDENTIAL ELECTIONS 323 authority of the judiciary, generated hostility toward the Court among Jeffersonian Repub­ licans, some of whom advocated measures to curtail federal judicial power. The Court, however, was not a significant issue in presidential elections, except in 1832, when the campaign was dominated by President Jackson’s opposition to the Bank of the United States, which Congress had created to facilitate federal financial transactions and to create a source of credit for private businesses. To Jackson, this symbolized the expansion of federal power at the expense of the states and the aggrandizement of the power of wealthy merchants, financiers, and speculators at the expense of farmers, crafts­ men, and owners of small businesses. The Court could not help but to be swept into the maelstrom since it had upheld the constitu­ tionality of the Bank in McCulloch v. Mary­ land (1819),2 a decision that provided a sweeping vision of congressional power to legislate for the nation’s welfare under the Constitution’s Necessary and Proper Clause. In vetoing the renewal ofthe Bank’s charter in July 1832, Jackson declared that “[t]he opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.”3 As one scholar has explained, Jackson’s transforma­ tion of the election into a referendum on his veto “placed the constitutional role of the Court in doubt.”4 Jacksonians derogated the Court’s power ofjudicial review-even though the Court in McCulloch had not struck down the bank statute, while National Republicans claimed that criticism ofjudicial review called into question the rule of law. Jackson’s reelection , however, did not result in any erosion ofthe Court’s power. Although Chief Justice Taney and other Justices appointed by Jackson were less inclined than Marshall to favor vested property interests and the expansion ofcongressional power, the Taney Court used the power and prestige won for the Court during the Marshall era to craft a doctrine of state police power that helped to facilitate the continuation ofeconomic devel­ opment along capitalistic lines. The Court itself was not at the vortex of a presidential campaign...