Americans wouldn't be divided about the Supreme Court if it wasn't making policy

And like good Jeffersonians, we have found ways to politicize the Court by proxy. This is actually a big reason that Jefferson was elected president in 1800. At that point, many members of the electoral college were still selected directly by state legislatures, so the Jeffersonians went about taking control of key legislative seats. They focused particularly on the elections for New York state senate in the City of New York. The contest was turned into a proxy vote on the Adams–Jefferson contest.

Today, we have done the same thing with the Court. Consider this particularly nasty battle over senatorial ethics — would anybody really care about this, except for the wide-ranging policy implications? Of course not! Moreover, did the Founders intend that the choice of a Supreme Court nominee would be one of the most lasting and consequential decisions any president could make? No! The president has (or at least, should have) substantially bigger fish to fry. But both the Senate and the president have found themselves deeply enmeshed in these matters because the nomination of a Supreme Court justice is the only means of control the public has over the policymaking powers of the Court.

I do not know what to do about this, or even if anything should be done. I personally think Madison had a better idea than judicial review to prevent “precipitate, . . . unjust, and . . . unconstitutional laws”: a congressional veto over state legislation, and a council of revision to check the Congress. But that ship set sail long ago. The Court’s role in our political system is now set, even though it has lately contributed to the derangement of our civil discourse.

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