Why should one care about a country’s Supreme Court? It is a fair question. As a Swede, I have little idea about the day-to-day workings of my own Supreme judicial institution, and I most certainly could not name the individual justices of the Swedish Supreme Court.
Yet when it comes to the United States Supreme Court it immediately becomes much more interesting. Perhaps it is the system of appointment that is so intriguing? The president nominates a judge, that judge then faces multiple days of hard questioning from the Senate Judiciary Committee, and then that final vote of confirmation on the floor of the Senate. For after that vote is done, that justice is a justice until death or voluntary retirement, a king of the law.
Perhaps it is the broad and awesome power that gets through? The Supreme Court can decide elections (Bush v Gore) or decide how and why the government can execute its citizens (Ford v Wainwright, Roper v Simmons, Kennedy v Louisiana). Or is it perhaps the very idea itself that in a nation of over 330 million people there can exist 9 nonpartisan oracles of common sense and judicial fairness? In this article I will try to elucidate just how bizarre such a notion is. Along the way you will hopefully understand why it is important to care about the US Supreme Court. For long after Trump lay dead in the ground, and all but the most junior senators of our time have retired, the judges will be left, as a last lingering aftertaste of the age of Trump.
One should, however, not fool oneself and believe that the age of Supreme Court partisanship began with Trump’s 2016 victory. Already in the 1930s the Supreme Court faced such a crisis of credibility that President Franklin D. Roosevelt introduced legislation to expand the court beyond the “traditional” 9 judges. So tough was the opposition of the “Four Horsemen”, four conservative judges that did all in their power to curtail the New Deal legislation of the Roosevelt administration. Roosevelt’s court-packing plan would never be enacted. Yet it lives on as a symbol of the discontent the “nonpartisan” judges can create in an administration. It is not a coincidence that the court-packing plan received significant attention from liberal idealists in Biden’s term.
The next era worth mentioning is the presidency of Richard Nixon. There are many things to be said about Nixon as president, but one thing that is rarely mentioned is that he is the only president of the 20th century to have two Supreme Court nominations rejected by the Senate. Both Clement Haynsworth and G. Harold Carswell were seen as far too conservative to be allowed on the Supreme Court; their nominations failed 45-55 and 45-51.
These nominations came right after the end of the “Warren Court” (the name derives from the Chief Judge of the court, Earl Warren) which is arguably the most liberal composition the court has ever seen. It was the Warren Court that among other things ended school segregation (Brown v Board of Education), legalized abortion (Roe v Wade), and guaranteed the right to a lawyer for criminal defendants (Gideon v Wainwright).
A battered and bruised Nixon administration had to settle for only one ideological pick, William Rehnquist, and give a moderate corporate lawyer, Lewis Powell, the other spot. A man that rued this unfortunate set of circumstances was undoubtedly a young lawyer from Pennsylvania by the name of Robert Bork. In the early 1970s, he was Nixon’s Solicitor General, in effect who the government sends to represent itself in cases before the Supreme Court. 15 years later, with Nixon long ago having been put into the dustbin of history, Bork would again have a run-in with the Supreme Court. It is that run-in, I argue, that inflated the partisanship and perhaps forever pushed it off the giant cliff of moderation.
In 1987 Lewis Powell decided to retire. Though he could be relied upon to deliver some beneficial rulings, his moderate blandness was not satisfactory to a proudly conservative Reagan administration. So Reagan circled back, and he found Bork. Bork was on the surface a perfect conservative candidate. He was a conservative legal academic, being influential in the field of antitrust law. Bork was even a veteran of the Korean War; he was simply too good to pass up. The Chief Judge, another conservative by the name of Warren Burger, told the Judiciary committee and the media his opinion of Robert Bork: “In the half-century since I was a law student, I know of no person with finer qualifications for the court.”
Yet two giant obstacles quickly presented themselves. The first was Bork’s role in the “Saturday Night Massacre”, an infamous event in the Nixon administration. Nixon sought to fire the special prosecutor who was looking into Watergate, and in effect Nixon himself. The Attorney General refused to fire the special prosecutor, and instead resigned himself. The Deputy Attorney General did the same procedure. So it fell to Bork to be Nixon’s hatchet man. He would never live down that fatal mistake.
The other issue for Bork was that his strong conservatism was opposed bitterly by Democratic Senators and some moderate Republicans. The media speculated that Bork would just give up, which probably would have saved the Reagan administration from some embarrassment. Yet Bork soldiered on, sitting through endless hours of beratement from the Judiciary Committee. Perhaps the final nail in Bork’s coffin came when he tried to answer the simple question: “Why do you want to be an associate justice on the supreme court?”. One can imagine multiple good answers here. Throw in something about service and judicial fairness and the reply would be completely uncontroversial. But Bork answered instead with a now derided sentence: “I think it would be an intellectual feast just to be there.” The image of the pompous conservative intellectual was established and could no longer be washed away. Bork’s nomination was rejected in the Senate, 42-58.
The junior senator from Kentucky rose during the confirmation debate to make a speech in support of Robert Bork. The senator was an unknown politician yielding little to no power, yet his speech was interesting. It is a nearly half-hour oration that touches on many things, including the failed nominations of Haynsworth and Carswell. Yet the main point is most crucial. That the behavior of the anti-Bork crowd had introduced a new standard regarding Supreme Court justices. In future confirmation hearings the political beliefs of a judge would supersede judicial competence, the fight could begin in earnest. The senator’s voice was thick with regret as he urged Bork to “…prove, for the rest of your professional life, how wrong the decision of the United States Senate was.” You can hear the desire for revenge sometimes defeat the mask of indifference. And senator Mitch McConnell would get his revenge, though it would take him 29 years.
In March of 2016 President Barack Obama nominated the moderate judge Merrick Garland to succeed a true titan of the conservative legal movement, Antonin Scalia. McConnell, now Senate majority leader, easily rebuked Obama’s attempt at filling the seat. McConnell instituted a new convention out of thin air. The reasoning he presented was that with a presidential election to follow later in the year it would be unfair to resolve the vacancy without allowing the people to vote first. Democrats protested, Republicans didn’t care.
After the election Donald Trump appointed Neil Gorsuch, seen as having views much more in line with the seat’s former holder Antonin Scalia. Trump’s second chance to reshape the court came in the summer of 2018 with the retirement of Anthony Kennedy, often seen as a moderate swing vote. On Kennedy’s recommendation Trump selected a former law clerk of his, Brett Kavanaugh. Kavanaugh’s confirmation hearing is infamous for many reasons. Dr. Christine Blasey Ford’s accusation that Kavanaugh sexually assaulted her in the 1980s being one, Kavanaugh crying when talking about old calendars he used to make in high school, and of course, Kavanaugh answering a question regarding his high school drinking habits by proclaiming that he liked beer about ten times in a row. Kavanaugh was confirmed to the Supreme Court, 50-48.
The final act of this trilogy of ruthlessness came in 2020. Ruth Bader Ginsburg, long seen as the most consistent liberal on the court (as well as having an online fanbase, something which is very unusual for a Supreme Court justice), died just six weeks before the 2020 presidential election. McConnell still held power in the Senate. Now there was no talk about waiting for the election. McConnell introduced a convention only to be the first one to break it four years later. Amy Coney Barrett was confirmed to the Supreme Court as Ginsburg’s replacement without any issue. President Trump successfully got three new justices on the Supreme Court in just a single four-year term in office. This had not been accomplished since Ronald Reagan’s second term.
We can already see the impact this new-looking Supreme Court has had on American life. The current Roberts Court (so called because of Chief Judge John Roberts, it is traditional that the name of the sitting Chief Judge gives the name of that era in Supreme Court history), that have run since 2005, is widely seen as one of the more conservative in the court’s history. They have specified that the Second Amendment talks about the individual right to have weapons (District of Columbia v Heller), that corporations that donate significant sums to politicians are merely using free speech (Citizens United v FEC), and that parts of the Voting rights act are unconstitutional (Shelby County v Holder).
Yet it is perhaps in just the last few years that we have seen the court at its most extreme. Dobbs v Jackson Women’s Health Organization in 2022 is the infamous case that overturned Roe v Wade and made abortion an issue for the states again. In the US, 17 states now greatly restrict abortion. And just this summer the Supreme Court laid down its decision in Trump v United States, asserting that the President of the United States has absolute immunity for “official acts” taken under their presidency, giving sweeping new power to the presidential office.
Some conservatives claim that these decisions are the end of the road. No more victories are to be claimed. Clarence Thomas thinks otherwise. The oldest and longest serving judge on the court, Thomas is a conservative of the most reactionary sort. In a concurring opinion (a concurring opinion is an individual justices commentary on the majority opinion, it often tries to broaden or narrow the court’s decision) for Dobbs v Jackson. Thomas argues that it is not the abortion issue in itself that was wrongly decided in the 1970s, but instead that it is an entire judicial philosophy that has manifested itself and led to multiple wrong decisions over the years. Thomas helpfully explains just which decisions he would get rid of: Griswold v Connecticut, a case that legalizes the free use of contraceptives for married couples. Lawrence v Texas, a case that makes it illegal for states to criminalize private sexual acts between consenting adults. And Obergfell v Hodges, the case that makes same-sex marriage legal in all parts of the country. A reactionary roadmap has been laid out.
So why worry? Well, worry because Trump has won the election. Worry because the Republican senatorial caucus, the most ruthless and efficient harbingers of conservative reactionary justice, are once again the majority party in the Senate. Worry because Clarence Thomas is 76 and eying retirement, worry because Samuel Alito (the guy who wrote the opinion overturning Roe v Wade) is 74 and not getting any younger.
If Harris had won they would have stayed, trying to cling on to life so as not to be succeeded by a liberal. Now they can retire in a Trump presidency, in a Republican Senate. With their possible retirements, Trump will have selected five of nine justices. The majority, in all cases before the highest judicial institution of the land, will be constituted by the Trump judges. It is also important to note that Chief Judge John Roberts, who wrote the majority opinion in Trump v United States, turns 70 in January. Sonia Sotomayor, the senior liberal on the court, is already 70. The Republicans would never say it, but some would think it. For their deaths would strengthen a wall of conservatism so strong that it already seems impenetrable.
Trump might be gone in four years, but his legacy remains. In the coming decades, the most ardent of conservatives will spend their lives reshaping the United States and show reactionaries across the world that you can change the law not by writing it but by interpreting it. The only thing you have to do is be a bit ruthless.
