When Scalia died suddenly in February 2016, President Barack Obama’s choice to replace him, moderate liberal Merrick Garland, seemed likely to turn the conservative five-to-four court into a liberal five-to-four court. But a Republican Senate refused to even hold a hearing on Garland’s nomination, on the theory that court vacancies that occur during presidential election years should remain vacant until the next president takes office.
Four years later, however, when Ginsburg died in September 2020, less than two months before the presidential election, a Republican Senate confirmed President Donald Trump’s nomination of Amy Coney Barrett with lightning speed. Just like that, a potentially liberal judicial majority became the most conservative court since the 1920s or even the 1890s.
The Democrats cried foul, accusing their opponents of hypocrisy, but in fact the Republicans had handled the two nominations on a uniform principle: if you have the votes, you don’t have to worry about a coherent theory.
This recent history highlights the arbitrary process we employ to select judges, which owes more to the health and political whims of individuals than to the will of voters. But the story also highlights the power of political branches to exercise partisan control over the composition of the court for reasons that may or may not be related to the pursuit of justice.
This history dates back to the early days of the republic. In 1800, Thomas Jefferson’s Republican Party won a clean sweep of the presidency and both branches of Congress. It was the end of the Federalists as a national party – except in the Supreme Court, where lame officials moved quickly to leave a lasting Federalist legacy. During the interregnum between Jefferson’s election and his inauguration, Chief Justice Oliver Ellsworth resigned, allowing defeated President John Adams to appoint John Marshall as Chief Justice. The lame federalist senate confirmed Marshall. The new chief justice, a strong nationalist, went on to dominate the Supreme Court for 35 years as Jefferson and four other presidents watched in searing frustration.
The incumbent Federalists also reduced the number of judges from six to five to prevent the new Democratic-Republicans from filling the first “vacancy”. The newcomers quickly reduced the number to six.
Similar political maneuverings occurred again in 1866, after the Civil War, when the Republican Congress reduced the number of court seats from its maximum of 10 to seven, to prevent President Andrew Johnson, a white supremacist Democrat, from to appoint judges who could block their reconstruction efforts. Congress added seats in 1869, after Republican Ulysses S. Grant was elected president, bringing the number of justices to nine.
Grant’s appointments produced instant change: the new majority flip-flopped on a crucial national issue in 1871, upholding the validity of “greenbacks” (paper money) issued during the Civil War, which the court had just declared unconstitutional. a year ago.
The most famous story about the composition of the court is, of course, President Franklin D. Roosevelt’s plan to create additional seats on the Supreme Court after a reactionary five-to-four majority declared unconstitutional a succession of its New Deal programs. Amid the uproar over this plan, Judge Owen Roberts suddenly reversed his position and began voting to uphold Roosevelt’s liberal economic measures. This single change has sometimes been labeled “The change in time that saved nine”.
But the crisis would never have happened without an earlier, almost unnoticed retreat that overturned a court seat ideologically. The staunchly liberal judge John Clarke was unhappy with the court, particularly because of the antics of the obnoxious and personally offensive judge James McReynolds. Worse still, the rigid court seating arrangement meant that these two men sat next to each other for Clarke’s entire six years on the court. Eventually, Clarke resigned in frustration. But that decision left conservative Republican President Warren G. Harding to choose Clarke’s successor. Harding’s pick, former Sen. George Sutherland (R-Utah), became the leader of the reactionary Narrow Majority that repeatedly struck down New Deal laws.
A change in the composition of the tribunal also contributed to one of its most famous decisions, Brown v. Board of Education. In September 1953, just four weeks before the scheduled hearings in the school segregation cases, Chief Justice Fred Vinson died of a sudden heart attack at the age of 63. Most observers did not expect Vinson to declare segregation unconstitutional, let alone lead the court to a unanimous decision to do so. President Dwight D. Eisenhower chose Governor Earl Warren (R-California) to replace Vinson, and Warren worked diligently to produce the historic unanimous decision in 1954 that ended school segregation and signaled the rejection of Jim Crow .
The end of Warren’s legendary liberal court was almost as sudden as its beginning. In 1968, Warren announced his retirement before the presidential election so that Lyndon B. Johnson could choose his successor, rather than risk a Republican winning the election, particularly his longtime Californian nemesis Richard M. Nixon. Johnson nominated Associate Justice Abe Fortas, another strong liberal, to become chief justice and chose a liberal appeals court judge, Homer Thornberry, to take Fortas’ seat.
But a coalition of Senate Republicans and conservative Southern Democrats weighed in on ideological and ethical issues to torpedo Fortas’ nomination. Time is running out, Johnson didn’t try another candidate, Nixon won the election, and he chose conservative Warren Burger as chief justice. Nixon and his allies then pressured Fortas to resign due to financial problems, and suddenly the most liberal court in history was gone, instead of being entrenched for decades by Johnson’s appointments.
It began a half-century in which the Supreme Court became increasingly conservative. But there was a time when the direction could have been stopped or reversed – with just one change.
In 1991 Thurgood Marshall retired. For years, Marshall promised to fulfill his appointment for life, often joking, “I expect to die at the age of one hundred and ten, shot by a jealous husband.” But by 1991 his health had deteriorated, he found himself in constant dissent, his good friend Judge William Brennan had retired, and opinion polls predicted that President George H. W. Bush would be re-elected in 1992. Marshall took his retirement and Bush replaced him with the extremely conservative Clarence Thomas. Yet Bill Clinton, not Bush, won the election and Marshall lived until four days after Clinton’s inauguration. If Marshall could have ignored or endured his health problems, Clinton would have replaced him with a fellow liberal.
It is possible, even probable, that with a Liberal in the field instead of Thomas, it could have overturned the Court’s 2000 decision in Bush versus Gore— which could have opened the door to Al Gore gaining a majority of the electoral votes and thus becoming president. Given that Bush appointed two conservative justices in his second term, a Gore presidency might well have reshaped the court. In the years since, conservative justices have handed down landmark rulings on gun rights, campaign spending, reproductive freedom, voting rights law, affirmative action and more — virtually all by five votes to four.
The health and whims of individual judges can shape the court’s ideology for years to come, no matter which direction the political winds blow. Since Johnson’s failed attempt to replace Earl Warren, the chief justiceship has passed from conservative Burger to even more conservative William H. Rehnquist and John G. Roberts, Jr..
This history suggests that the court will remain extremely conservative for a long time. Today’s conservative and reactionary judges are young, and the average term of office for judges is now about 25 years, twice as long as before. But that may not be the whole story. A court seemingly in control is likely to be increasingly out of step with the country’s population, especially young people. This could eventually prompt the political branches to rise up as they have done in the past against a Supreme Court perceived to be out of touch and redo not only its composition but also its structure, as it did regularly in the 19th century.