Created in politics, meant to stand above it

The Supreme Court was born of politics. It was never meant to live as politics.

On 24 September 1789, George Washington signed the Judiciary Act that turned Article III from a sentence into a system. Congress set a six-member Court, district courts, circuit courts, and the office of Attorney General. The most contested piece was Section 25: the power of the Supreme Court to review certain state judgments when federal law or the Constitution was at stake. That was not a decoration. It was the claim that the Union would have one last word on the meaning of the federal compact. John Jay sat as the first Chief Justice. The Court first convened in February 1790. Politics built the machinery. The machinery was supposed to restrain politics.

One hundred and sixty-eight years later, on the same calendar day, that claim was tested in the street.

Three years after Brown v. Board of Education, Arkansas treated a Supreme Court judgment as optional. Governor Orval Faubus used the state National Guard to keep nine Black students out of Little Rock Central High. A federal court had ordered them in. A mob formed. The mayor asked Washington for help. On 24 September 1957 President Eisenhower federalized the Arkansas Guard and sent about a thousand soldiers of the 101st Airborne from Fort Campbell. That night he spoke from the White House and refused to dress the order as a personal crusade. He called it the enforcement of court orders and the prevention of mob rule. The next morning the Little Rock Nine walked in under Army escort. The point was not that Eisenhower had become a civil-rights theologian. The point was that a state could not play “states’ rights” as a veto of federal law once the judiciary had spoken and the executive chose to enforce it. Contemporary coverage treated the troop movement as controversial. The constitutional question was older than the controversy: who prevails when a state defies a federal judgment?

That is the Court the Founders sketched and the First Congress built: a check, not a faction with robes.

The later record is harder to praise without qualification. For a long stretch the Court did not merely umpire disputes; it nationalized moral settlements that legislatures would not, or could not, finish. Abortion is the cleanest example of the inversion. For most of American history the matter sat with the states. In 1973 Roe v. Wade removed it from ordinary politics and declared a constitutional right the text does not name. Whether one welcomed the outcome or despised it, the method was the same: nine justices, then seven in the majority, substituted a nationwide rule for fifty argumentative electorates. Dobbs in 2022 returned the question to the states. That was not “the Court becoming political.” It was the Court admitting that a political question had been dressed as a constitutional command. The honest debate is whether that undoing restored federalism or merely swapped one coalition’s victory for another’s. Both charges can be made. Only one of them can be true about the 1973 method: it was judicial lawmaking.

Other distortions followed the same pattern. Issues that belong in Congress — or in statehouses — arrived at the marble building already earmarked. Oral argument became a ritual around conclusions that ideology had already ranked. Foreign policy, which the Constitution lodges principally with the President and the Senate, has been tugged into litigation strategies that treat district courts as a second State Department. That is not “balance.” It is forum-shopping with a flag.

None of this requires pretending the Court was once a monastery. Nominations have always been political. Marshall was political. The 1930s Court was political. The Warren Court was political. What changed was the habit of treating the bench as the place where unfinished culture wars are finished. A Court that is only a prize for the last election cannot be a check on the next one.

Little Rock is the rebuke to the cheap version of “states’ rights.” Faubus was not defending a reserved power. He was nullifying a federal judgment with soldiers wearing state colours. Eisenhower answered with soldiers wearing national colours. That is ugly. It is also what supremacy looks like when words on paper meet a mob. The Judiciary Act of 1789 anticipated the need. Section 25 was written because the authors did not trust every state court to prefer the Constitution to local passion.

The opposite error is just as real: a Court that confuses supremacy with invention. Protecting the Constitution is not the same as enlarging it until the political branches become spectators. If every urgent cause must be a holding, then elections are theatre and statutes are first drafts.

The Court was created from politics. It has been mired in politics. It was supposed to protect the country from the worst of politics — faction, nullification, and the permanent campaign. It does that only when it does less: enforce the text, police the boundaries between governments, and leave the rest to people who can be voted out. That is a colder vocation than prophecy. It is the one the Act of 1789 actually authorized.

United We Stand. Divided We Fall.

First guns at sea and a massacre of prisoners; a broken truce that made Drake and Hawkins lifelong enemies of Spain; a treasure still on the bottom; a dying ship that won anyway; and a pass in a boot that saved a fortress and hanged a major. Late September, four centuries of the same themes — cargo, convoy, honour, and who keeps faith once the shooting starts.

Benedict Arnold was a traitor who tried to give West Point to the British. He had intended the death of many. With Major John André, charged with carrying the plans, he achieved one. They met on the night of 21 September 1780. Arnold, commanding the Hudson fortress, had been selling it for £20,000. André came upriver in HMS Vulture, took the maps and the notes on how the defences had been weakened, and took a pass in the name “John Anderson.” American guns drove the Vulture downriver. André had to go overland in civilian clothes with the papers in his stocking. On the morning of the 23rd, three New York militiamen — John Paulding, David Williams and Isaac Van Wart — stopped him near Tarrytown. He first took them for Loyalists, then offered watch and money. They searched him, found the papers, and sent him in. Arnold got word in time and fled to the British. André, taken in disguise with the documents, was tried as a spy, not a prisoner of war, and hanged at Tappan on 2 October. Washington kept West Point. Arnold’s name became the American word for treason. André, young and composed on the scaffold, drew reluctant respect even from some of his captors. Division did its work: one man sold the line; another paid for the meeting.

A year earlier, almost to the day, John Paul Jones said, “I have not yet begun to fight.” Stirring words — and he was already in the middle of a pitched battle. On 23 September 1779, off Flamborough Head, Jones in the converted East Indiaman Bonhomme Richard — named for Franklin’s Poor Richard — met a Baltic convoy with Alliance, Pallas and Vengeance. The escorts were the new 44-gun Serapis under Captain Richard Pearson and Countess of Scarborough. After a ruse with British colours, both sides fired almost together. Two of Jones’s old 18-pounders burst. Outgunned and leaking, he lashed his ship to Serapis so Pearson could not use better sailing and a heavier broadside. The fight ran into the night. When asked if he struck, he gave the line. A grenade down a hatch set off cartridges on Serapis. Pearson struck. Pallas took Countess of Scarborough. Bonhomme Richard was so smashed she sank two days later. Jones shifted his flag to the prize. The convoy escaped, but the Royal Navy had lost two warships in home waters to a rebel squadron. Unity here was oak, lashings and refusal to separate. A dying ship won because its captain would not let the enemy fight at the range that favoured him.

One hundred and thirty-eight years earlier, same stretch of late September, Merchant Royal sank with Spanish gold now valued in the high hundreds of millions, often put over a billion pounds. It was not a battle, except against weather, a leak and broken pumps. On 23 September 1641, off Land’s End, the English merchantman went down. She had spent two years in the West Indies, put into Cádiz leaking, then taken on a Spanish payroll for Flanders — gold, Mexican silver bars, pieces of eight, jewels — on top of her own cargo. Captain John Limbrey and some forty men were taken off by the sister ship Dover Merchant. Eighteen drowned. The wreck was never found. An anchor lifted by a Cornish trawler in 2019 is sometimes claimed as hers; it has not been proved. She is still called the El Dorado of the seas. The gold was too heavy to salvage. Division again, of a blunter kind: hull from pumps, ship from sister, treasure from the men who lived.

Seventy-three years before that, near Veracruz, English ships — branded pirates and slavers by Madrid — fought a losing fight against about thirteen Spanish vessels. Drake escaped. On 23–24 September 1568, John Hawkins’s third slaving and trading voyage into Spain’s American monopoly ended in the harbour of San Juan de Ulúa. Six ships: flagship Jesus of Lübeck, leased from Elizabeth I; Minion; Drake’s little Judith; three smaller craft. They had been selling enslaved Africans and goods along the Spanish Main, often by force, in defiance of the Treaty of Tordesillas. Storm damage sent them in to repair. A Spanish fleet arrived with the new viceroy, Martín Enríquez de Almanza. A truce was agreed so both sides could use the anchorage. The Spanish broke it: boarding parties, shore batteries, a hulk as a platform. Four English ships were sunk or taken. Only Minion and Judith got out. English losses ran to hundreds of men and almost the whole profit of the voyage. Hawkins and Drake called it treachery. Madrid called it the suppression of smugglers. The hatred it planted helped set the tone of later English privateering against Spain. A truce is a form of unity. Break it, and you breed a longer war.

Two hundred and thirty years earlier still, in 1338, the first naval battle of the Hundred Years’ War proved gunpowder useful, but not everything. Off Arnemuiden, usually dated 23 September, five English cogs under John Kingston were carrying wool to Antwerp so Edward III could pay his allies. A French galley fleet under Hugues Quiéret and Nicolas Béhuchet caught them — outnumbered about ten to one, some English still ashore. The flagship Christopher mounted three primitive cannons and one hand-gun: first recorded European use of artillery at sea. Stone and metal at range instead of only arrows, ramming and boarding. It was not enough. After a day’s fighting Kingston surrendered. The French took the ships and the wool, then massacred the prisoners. Chronicles dwell on the handsome Christophe, built at great cost to the English king, and on the crew put to death. The tactical lesson ran against the technological one. Artillery had arrived at sea. Numbers and boarding still decided the day. A small squadron, divided from the shore and from any supporting fleet, died with its new guns.

United we stand. Divided we fall. The proverb is older than any of these fights, and it is not a hymn to sameness. It is a warning about the moment when a line, a hull, a truce or a pass is split from the men who have to hold it. Arnold divided the cause and ran. Jones refused to divide his wreck from Pearson’s stronger ship and took her. Merchant Royal divided from her pumps and her sister and took the gold with her. Hawkins trusted a harbour truce and lost a fleet. Kingston’s five cogs, cut off and outnumbered, learned that the first cannons at sea do not cancel isolation. Late September keeps teaching the same lesson: cargo and convoy matter; honour matters more; and the side that keeps faith after the first shot is the side that still has a fortress, a prize, or a name worth keeping.

When actors fight with writers

In ancient Greece and Rome, the theatre could be brutal, but it had not yet gone as far as Elizabethan London. Playwrights might serve, actors might brawl, and festivals could explode. What they rarely did was meet in a field with rapiers and leave one man dead of a six-inch wound.

The clearest military example is Aeschylus. He fought at Marathon in 490 BC; his brother Cynaegirus died there. Tradition also links him with Salamis and Plataea. He acted in his own plays. The epitaph he is said to have composed for himself mentions Marathon and says nothing about his tragedies. Sophocles held the civic-military office of strategos. That is command, not arena fighting.

Rome usually kept the professions apart. Livy records that professional actors—histriones—were not enrolled in the legions, and that a citizen who took up acting was struck from his tribe. Players of Atellan farce were an exception, because that form stayed closer to amateur performance. Actors and gladiators both carried infamia: legal disgrace. They could not hold certain offices; their testimony and marriage rights were restricted. They were adjacent low-status spectacle trades, not the same job.

Violence still gathered around the theatre. Competition was fierce. Alcibiades punched a rival chorus-producer—and, in some accounts, a chorus boy—in the Theatre of Dionysus during the Great Dionysia. Decades later Meidias punched Demosthenes in the same theatre. Those were political-religious festival assaults, not stage fights. In Rome, actor cliques and their partisans could riot. Livy and later writers describe faction feeling that ran to bloodshed, in the same register as the circus crowds. Audiences pelted performers.

Elizabethan London closed the gap. On 22 September 1598, in the fields at Hoxton—then Hogsden or Hoggesdon Fields, in Shoreditch—the twenty-six-year-old playwright Ben Jonson killed the actor Gabriel Spencer in a duel. Spencer died on the spot from a rapier thrust six inches deep and an inch wide into his right side. Jonson was indicted for manslaughter, pleaded guilty, and escaped the gallows only by claiming benefit of clergy.

Spencer was a rising player with the Admiral’s Men under Philip Henslowe. He already had a violent reputation. In December 1596, in a Shoreditch barber’s house, he drove a still-sheathed rapier into the eye of James Feake, a goldsmith’s son, after Feake threatened him with a candlestick. Feake died three days later. There is no record that Spencer was punished.

The two men had also been locked up together the year before. In 1597 Jonson co-wrote the lost satirical play The Isle of Dogs with Thomas Nashe. The Privy Council judged it seditious, closed the London theatres, and imprisoned Jonson, Spencer, and another actor, Robert Shaa, in the Marshalsea. Nashe fled. The company broke up and Spencer had to find new work. No one recorded why they later fought. Later guesses include leftover anger over that scandal, or Spencer calling Jonson a bricklayer—the trade Jonson had been trained in and disliked.

Years afterwards Jonson told William Drummond that Spencer had challenged him, arrived with a sword ten inches longer than Jonson’s, and wounded him in the arm first. The indictment is colder: Benjamin Johnson, “yeoman,” “feloniously and wilfully” assaulted Spencer in the fields with a rapier worth three shillings and gave him the mortal wound. Spencer “died instantly.”

Henslowe wrote to Edward Alleyn four days later: “I have lost one of my company, which hurteth me greatly, that is Gabriel, for he is slain in Hogsden Fields by the hands of Benjamin Jonson, bricklayer.”

Jonson was held in Newgate. At the Old Bailey he confessed to manslaughter. The penalty was hanging. He then claimed benefit of clergy: a medieval privilege that, by Elizabeth’s reign, any literate man could use once. He read Psalm 51—the “neck verse”: “Have mercy upon me, O God…” The court recorded that he “read like a clerk,” branded him on the thumb with the letter T, the Tyburn T, and confiscated his goods. He could not use the plea again.

While in prison he converted to Roman Catholicism, possibly under the influence of the Jesuit Thomas Wright, who worked among prisoners. He later returned to the Church of England. The same year his first major success, Every Man in His Humour, was on the stage. Enemies do not seem to have used Spencer’s death against him much afterwards. Some contemporaries thought Spencer had it coming.

Jonson had already, by his own later account, killed a man in single combat while serving in the Low Countries. The 1598 duel is the one that left a mark on his thumb and nearly ended the career that produced Volpone, The Alchemist, and Bartholomew Fair.

Aeschylus could fight Persians and still be buried as a soldier. Sophocles could hold a generalship and still be Sophocles. Rome kept actors off the roll of honour. London put the writer and the player in the same marsh and the same field, with steel in their hands.

Today it tends to be certain drugs that spark the violence. That is not limited to actors.