By Elliott Brack
Editor and publisher, GwinnettForum
(Note: refer to chart of the page for further understanding.—eeb)
OCT. 9, 2018 | Ever since Dwight Eisenhower became president in 1953, Republicans have been trying to turn the Supreme Court more conservative. While Republican presidents since then have appointed 20 court justices, Democratic presidents have appointed only eight justices. Yet the court has remained at least moderate centrist to liberal.
(Interestingly, Democrats Franklin Roosevelt and Harry Truman held a firm sway over the court, appointing nine and four justices each,)
So, for years, Republicans have been yearning for the day when their appointees would control the ideological climate of the court.
Only last week with the confirmation of Brett Kavanaugh does it appear that GOP ideologues will have their way in turning the court far more conservative. We may see more split 5-4 votes, but they probably will almost always be on the conservative side.
So, since the appointment of Earl Warren in 1954, we have had courts known as the Warren, Burger, Rehnquist and Roberts courts, all named for the chief justice appointed by a Republican president. But the court has always been at least centrist, if not liberal. And this galled Republicans.
Another consideration: Just because a justice is appointed by a conservative president, that doesn’t mean he or she will “stay” conservative. Republican appointments of Harry Blackmun, John Paul Stevens and David Souter all became much more liberal during their time on the bench, contributing to a more centrist court. And two other Republican appointments, Sandra Day O’Connor and Anthony Kennedy, were considered “swing” votes, often meaning 5-4 liberal decisions, delaying an outright conservative majority.
One of the most recent examples of this was the vote of John Roberts to uphold not once, but twice, the Obama Affordable Health Care Act. Observers say that is because Roberts believes in the importance of building consensus, which in turn makes the court more legitimate, and not always a thorn in the side to what Congress passes. Will Justice Roberts’ vote sometimes with the liberal wing in the future?
The low point for conservatives were the 1960s, when several jurists were more often voting liberally. Justices with these less-than-conservative leanings included William O. Douglas, Hugo Black, Arthur Goldberg, William Brennan and Thurgood Marshall. (See chart of “ideological leanings” by Michael A. Bailey of Georgetown University.) However, since then, it has taken either Roberts or retired Justice Anthony Kennedy to vote on the side of the liberal wing to maintain some semblance of balance on the court.
A key ingredient of getting Supreme Court justices confirmed is whether the president’s party has control of the Senate, we have found in the last two years. What brought this to a head was in 2016 when Justice Antonin Scalia died, leaving a vacancy.
President Obama nominated Merrick Garland, the chief judge U.S. Circuit Court of Appeals for the District of Columbia, the same court Judge Kavanaugh served on. It’s interesting that they voted the same way 93 percent of the time on matters before this court!
The U.S. Senate, led by Kentucky Majority Leader Mitch McConnell, pulled a fast one, having a majority behind him, so that Judge Garland never was afforded a hearing for the seat. This move meant the Senate would not hear of another nomination until after the 2016 election, when Donald Trump became president. He eventually nominated Neil Gorsuch, who was seated in 2017 by the Republican Senate.
Essentially, this means that the next court sessions can legitimately be deemed no longer the “Roberts Court,” but the “McConnell Court.” After all, he single-handedly made sure that two conservatives got these slots on the court, foiling efforts by Democrats to seat a more liberal nominee.
- Have a comment? Send to: elliott@brack.net
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