When justices wade into politics -SCOTUSblog

SCOTUS FOCUS / When justices wade into politics

By Nora Collins / Jun 26, 2026

Scholar Robert Dahl, writing back in 1957, once remarked that “Americans are not quite willing to accept the fact that [the Supreme Court] is a political institution and not quite capable of denying it; so that frequently we take both positions at once.”

Generally, the justices have refrained from explicitly commenting on politics. That custom, however, is more a matter of practice and institutional norms than a hard-and-fast rule, and over more than two centuries, justices have at times set it aside while sitting on the bench.

As the current court continues to generate criticism from both sides of the aisle, it seemed relevant to take a deep dive into the (somewhat) rare occasions when justices have openly – and often controversially – done so.

Politics from the bench

In the court’s earliest years, the judicial and political roles were hard to separate – in ways that might shock those who currently accuse the court of partisanship. Besides often being heavily invested in political causes (e.g., campaigning on behalf of elected officials or seeking elected office themselves), the early justices often used addresses to grand juries while circuit riding as occasions for commentary beyond the strictly legal. At that time, such bodies were not simply assembled to decide whether to indict individuals. Instead, the responsible circuit justice would address the grand jurors at the start of each court term, “laying out their duty and the manner in which it was to be performed,” and “lectur[ing] on the role of government, on the implications of the new Constitutional system, and on the jury’s role and responsibility within that system.” Many of these charges were later printed in newspapers and reached a wider audience. In this way, the justices acted as “republican schoolmasters” who saw their role as to “instill a sense of civic virtue in the populace.”

The first chief justice, John Jay, did just that while riding circuit. In May 1790, Jay addressed several grand juries on the (then) “Eastern circuit,” openly contemplating political ideas discussed in the Federalist Papers, such as if men are capable of self-government. Jay was also political in a more explicit sense – he advised President George Washington in both politics and law, and while on the court, negotiated the “Jay Treaty” between the United States and Britain – which helped avert war between the two countries.

But perhaps no early justice tested the limits as far as Justice Samuel Chase. A Federalist who had campaigned for President John Adams in 1800, Chase delivered an 1803 charge to a Baltimore grand jury that criticized Republicans and the Jefferson-aligned Congress for repealing the Judiciary Act of 1801. This repeal, which, among other things, removed 16 circuit judges (most appointed by Adams), meant, according to him, that “the independence of the national judiciary” would be shaken to its foundation. Following this, Chase assailed a new Maryland provision broadening the vote to include individuals without property, saying that it would turn the U.S. into “a mobocracy.”

These overtly political remarks led in part to Chase’s impeachment by the House (specifically, the articles called out his activities as “tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partizan”) and President Thomas Jefferson himself encouraged Chase’s impeachment in a letter to a House member, referencing “the extraordinary charge of Chace [sic] to the grand jury at Baltimore” and asking “ought this seditious & official attack on the principles of our constitution, and on the proceedings of a state, [] go unpunished?”

The Senate ultimately acquitted Chase in 1805, and no justice has been impeached since.

Then there was Chief Justice John Marshall, who – even while serving as chief justice – remained heavily involved in Federalist politics. Perhaps most remarkably, Marshall held two offices simultaneously after being sworn in as chief, as he continued acting as secretary of state for the final month of the Adams administration. Legal scholars today have noted the conflict of this “double duty,” which was not limited to Marshall (Jay and Chief Justice Oliver Ellsworth served in similar roles). In fact, the case that made Marshall’s legacy, Marbury v. Madison, arose directly from commissions he had failed to deliver in his capacity as secretary of state.

Marshall’s off-bench advocacy didn’t end with the Adams administration, however. After his ruling in 1819’s McCulloch v. Maryland that recognized Congress’ ability to create the Second Bank of the United States pursuant to the necessary and proper clause of the Constitution drew criticism from certain corners, Marshall published a series of nine essays in the Alexandria Gazette under the pen name “A Friend of the Constitution” defending his own opinion. Legal scholars have also debated if Marshall’s conduct there was appropriate.

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