The modern era of partisanship in Supreme Court confirmations began during LBJ’s presidency. It saw two successful Supreme Court nominations and two failed ones that had lasting consequences. As the president, the Senate, nominees, interest groups, and the public mobilized, they created and politicized the confirmation process, and Republicans realized how powerful a tool the threat of an “activist Supreme Court” could be in shaping and uniting the GOP.

The Dred Scott decision embodied how the debates over slavery held unique potential to deepen Americans’ awareness of historical distance. In his decision, Chief Justice Roger B. Taney accepted the historical grounds of debate that had been prepared through decades of interpretive emphasis on the historical explication. He then argued that because the founders had not considered blacks as citizens in 1787, blacks could not be citizens in 1857. In this reading, Taney forcefully rejected the antislavery idea that the progress of moral insight demanded new constitutional readings. However, in their dissenting opinions, John McLean and Benjamin Curtis gave official credence to much of that antislavery idea. They suggested that the Constitution could be adapted in light of original expectations of abolition. These opinions, along with political and popular responses to the decision, accelerated a growing sense that more than just chronological difference separated nineteenth-century Americans from their revolutionary predecessors. In their appeals to the founding era, the justices and their respondents highlighted unmistakable historical differences between that past and their present.