We bring our SCOTUS history to the present day and meet people such as Bork, Kennedy, Thomas and Kavanaugh. We conclude with a call to bring our institutions back to the original missions upon which they were founded.
A Brief History of the Supreme Court - Part V: Borking, Thomas, and SCOTUS at the Center of Society
"I don't think the Constitution is studied almost anywhere, including law schools. In law schools, what they study is what the Court said about the Constitution. They study the opinions. They don't study the Constitution itself."
"Conservatives . . . may decide to join the game and seek activist judges with conservative views. Should that come to pass, those who have tempted the courts to political judging will have gained nothing for themselves but will have destroyed a great and essential institution. . . . There are only two sides. Either the Constitution and statutes are law, which means their principles are known, and control judges, or they are malleable texts that judges may rewrite to see that particular groups or political causes win."
“If I were a black liberal, I would be hailed, I guess. But I'm not. I mean, I think for myself. I want to make my own decisions.”
At the close of our last podcast, we explored how, in lieu of massive legislative accomplishments, the left turned to the Supreme Court to drive its agenda, particularly in the case of abortion. There was a time when the choice of Supreme Court Justices was without controversy; they were barely even noticed.
Keep in mind these numbers:
William O Douglas – one of the leading liberals on the Court 64 – 4
Warren Burger – Chief Justice during Rod V. Wade 74 – 3
Harry Blackmun – wrote the opinion on Roe V. Wade 94 – 0
William Brennan – one of the most liberal justices and recess appointment. Only one Senator – Joseph McCarthy – voted against
Lewis Powell 89 – 1
Sandra Day O'Connor, 1981 99 – 0
Even a conservative jurist, Scalia, in 1986 89 – 0
But it was during Scalia's choice that the first cracks began to show. The opening was created by Warren Burger's decision to retire as Chief Justice. Reagan decided to move conservative William Rehnquist, one of the two individuals who voted against Roe, as the new Chief Justice and nominate Scalia to replace him. And it is hard not to see that vote as the reason for this number: 65 – 33 voted for Rehnquist, in contrast, note these other Chief Justice votes:
William Taft in 1921 61 – 4. Fred Vinson won the role by acclamation or voice vote – harder to know the actual numbers but something close. Earl Warren in 1954 recess appointment but won the position by acclamation or voice vote – harder to know the actual numbers but something close.
Warren Burger in 1969 74 - 3
Later votes after Bork:
Moderate Anthony Kennedy 99 – 0
Ruth Bader Ginsburg in 1993 96 – 3
But Ginsburg represented the last détente. The fundamental shift in Supreme Court politics began with Robert Bork. In 1987, President Ronald Reagan nominated Bork to the US Supreme Court, but the US Senate rejected his nomination after a highly publicized confirmation hearing.
President Reagan nominated Bork for Associate Justice of the Supreme Court on July 1, 1987, to replace retiring Associate Justice Lewis F. Powell Jr. A hotly contested United States Senate debate over Bork's nomination ensued. Opposition was partly fueled by civil rights and women's rights groups, concerned about Bork's opposition to the authority claimed by the federal government to impose standards of voting fairness upon states. Also, his stated desire to roll back civil rights decisions of the Warren and Burger courts. Bork was also criticized for being an "advocate of disproportionate powers for the executive branch of government, almost executive supremacy.
Before Justice Powell's expected retirement on June 27, 1987, some Senate Democrats had asked liberal leaders to "form a 'solid phalanx' of opposition" if President Reagan nominated an "ideological extremist" to replace him, assuming it would tilt the Court rightward. Democrats also warned Reagan there would be a fight if Bork were nominated. Nevertheless, Reagan nominated Bork for Powell's seat.
Following Bork's nomination, Senator Ted Kennedy took to the Senate floor with strong condemnation of him. In one of the most spurious speeches ever delivered from the Senate, and that is saying something, Kennedy declared: "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is--and is often the only--protector of the individual rights that are the heart of our democracy. ... The damage that President Reagan will do through this nomination, if it is not rejected by the Senate, could live on far beyond the end of his presidential term. President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate, and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.
Bork responded, "There was not a line in that speech that was accurate." In an obituary of Kennedy, The Economist remarked that Bork may well have been correct, "but it worked." Well then. Part of the reason it worked is Supreme Court nominations until Bork did not see the kind of unhinged diatribes unleashed by Kennedy, though they are commonplace today. So here you have Ted Kennedy, the lionized son of a wealthy man who was partially responsible for the death of the young woman in the Chappaquiddick incident, essentially lying to the American people about the decisions and character of one of the best legal minds of his generation, and, as with the death of Mary Jo Kopechne, getting away with it. The same Economist noted, "Had a young woman not drowned in his car, he might have been president. That, alas, is how many will remember Ted Kennedy." Yeah, and other than that, Mrs. Lincoln, how did you like the play?
Bork also contended in his book, The Tempting of America, that the brief prepared for then-Senator Joe Biden (yes, the same Joe Biden), Chairman of the Senate Judiciary Committee, "so thoroughly misrepresented a plain record that it easily qualifies as world-class in the category of scurrility."
Opponents of Bork's nomination found the arguments against him justified, claiming that Bork believed the Civil Rights Act was unconstitutional. Also, he was said to support poll taxes, literacy tests for voting, mandated school prayer, and sterilization as a requirement for a job while opposing free speech rights for non-political speech and privacy rights for gay conduct.
Reality however, was a massively different. In 1988, an analysis published in The Western Political Quarterly of amicus curiae briefs filed by US Solicitors General during the Warren and Burger courts found that during Bork's tenure in the position during the Nixon and Ford Administrations (1973–1977), Bork took liberal positions in the aggregate as often as Thurgood Marshall did during the Johnson Administration (1965–1967) and more often than Wade H. McCree did during the Carter Administration (1977–1981), in part because Bork filed briefs in favor of the litigants in civil rights cases 75 percent of the time.
But the record, the actual decisions, thoughts, and opinions of Bork were no match, in those days, for slick TV ads and basso profundo movie stars. Advertisements produced by the progressive People For the American Way, funded by uber liberal TV producer Norman Lear, and narrated by Gregory Peck, attacked Bork as an extremist.
In a 60-second advertisement, televised nationally at the cost of about $200,000, Peck charged that Bork "has a strange idea of what Justice is. He defended poll taxes and literacy tests which kept many Americans from voting. He opposed the civil rights law that ended 'whites only' signs at lunch counters."
Those three charges are three of the most blatant distortions of Bork's record. Take Bork's position on literacy tests. In 1965, Congress prohibited states from requiring people to pass reading and writing tests before registering to vote. The High Court in 1959 ruled that such tests did not automatically violate the Constitution, but in 1966 the Court upheld Congress' power to ban the practice.
Bork said in congressional testimony in 1982 that Congress' action exceeded its power and the court decision upholding that action was "very bad, indeed pernicious, constitutional law."
Did that amount to defending literacy tests, as the ad charged? Melanne Verveer, People for the American Way's director of public policy, said it did because Bork opposed the way Congress acted to end the tests. But, she conceded, Bork never directly spoke out in favor of the tests.
On poll taxes, however, the charge against Bork has considerably more evidence behind it, or so his accusers would have us believe. Bork, in congressional testimony in 1973, clearly disagreed with the High Court's 1966 decision eliminating poll taxes. The Virginia tax challenged in the case "was a minimal poll tax," he said. "I doubt that it had much impact on the nation's welfare one way or the other." The suggestiong in the People for the American Way ad that Bork's position constituted "racism." The Virginia case simply had nothing to do with race and was another clear distortion.
Kennedy's speech and the ad campaign successfully fueled widespread public skepticism of Bork's nomination. The rapid response and support to Kennedy's "Robert Bork's America" speech stunned the Reagan White House, and the accusations went unanswered for two-and-a-half months. Because the attack was so unprecedented, support was not on hand. Today when a GOP nomination is announced there is usually a concerted effort on the part of right wing groups, ranging from the Heritage Foundation to many legal organizations to counter, the ferocious, and sadly inevitable storm of unhinged protest that will greet any Republican nominee. But in 1987 Reagan’s administration was playing by the old rules.
To pro-choice rights legal groups, Bork's originalist views and his belief that the Constitution did not contain a general "right to privacy" were viewed as a clear signal that, should he become a justice of the Supreme Court, he would vote to completely overrule the Court's 1973 decision, Roe v. Wade. Accordingly, many groups mobilized to press for Bork's rejection, and the resulting 1987 Senate confirmation hearings became an intensely partisan battle.
And here we come to the two fundamental reasons why the left lost its mind over Bork. The first, as noted above, was that Bork represented the first hard overturn in terms of Roe. As the previous Conservative Historian podcast pointed out, Roe was passed on bad law. Bork's entire career was predicated on an originalist view of the Constitution, or as the founders intended, and was a clear rejector of the living Constitution, take the temperature of the people, judicial activist school as was seen in both Plessy V Ferguson and Roe. In other words, Bork hated bad law.
The second was the liberals by now had a measure of Antonin Scalia, and they were not at all pleased. The more intellectually and judicially Scalia began to run rings around the liberal justices with his brilliant mind and originalist vision, the more the thought of two such powerhouses was daunting and could not be borne.
On October 23, 1987, the Senate denied Bork's confirmation, with 42 Senators voting in favor and 58 voting against. His defeat in the Senate was the worst of any Supreme Court nominee since George Washington Woodward was defeated 20–29 in 1845 and the third-worst on record.
National Review columnist Kevin Williamson noted in 2016 that upon Antonin Scalia's death, "I would like to add an energetic "Amen!" to our editorial today on the death of Antonin Scalia and the necessity of preventing Barack Obama's replacing him with another left-wing activist. Jim Geraghty is right to point out that Republicans need to make no argument other than the one Democrats, such as Chuck Schumer, were making at the end of the Bush years. They need do nothing more than Senator Barack Obama did in filibustering Sam Alito. There are plenty of other examples. The ur-example (the first), of course, is the case of Robert Bork. The Democrats' craven, despicable, lying campaign against Bork announced the arrival of Supreme Court confirmation hearings as bare-knuckle political brawls. There was no question that Bork was well-qualified for the position – he was one of the great legal minds of his time. Democrats simply did not like his view of the law and the Constitution."
Before Bork, the essential criteria of a Supreme Court Justice were legal training, experience, and making certain they had not killed a man or were secretly torturing puppies. After Bork, it was about ideology. Oliver Wendell Holmes Jr., Louis Brandeis, Felix Frankfurter, William O Douglas, and William Brennan were all ideologues though of differing beliefs, and all got on the Court. It was different with Bork.
Wall Street Journal writer Mark Pulliam noted in 2018, "When Justice Anthony Kennedy announced his retirement in June, liberal interest groups were apoplectic. Many Senate Democrats, including Minority Leader Chuck Schumer, vowed to oppose any nominee and kept their promise when President Trump nominated Judge Brett Kavanaugh. Liberal groups rail against him for transparently political reasons: They don't like the way they think he will vote, as if he were a legislator.”
Despite Bork's unsurpassed credentials, liberals opposed him solely because of his conservative judicial philosophy. Unfortunately, they succeeded and, in the process, coined a new verb, "to bork." The confirmation process for Supreme Court nominees has been corrupted ever since.
Bork had earned this reputation by swimming against the ideological current as a scholar during the 1960s and 1970s—the heyday of the "living Constitution," when most of the legal academy was busy justifying judicial activism. Bork believed that judges should enforce the law, including the Constitution, as written. This approach has variously been referred to as strict construction, original intent, interpretivism, judicial restraint, textualism, and originalism. Bork wasn't the only conservative in legal academia, but he was the most influential advocate for originalism.
The judge assumed no one would believe Kennedy's hysterical charges. He was naive. Kennedy's extreme rhetoric resonated with the left's grassroots, prompting Judiciary Committee Joe Biden—who had previously said if Reagan nominated Bork, "I'd have to vote for him"—to announce his opposition. The televised confirmation hearings in September 1987 lasted an unprecedented 12 days. Bork was grilled and testified in detail about his views for five full days. The Judiciary Committee's rejection of Bork by a 9-5 vote spelled political doom.
The borking of Robert Bork taught special-interest groups that they could demonize judicial nominees based solely on their worldview. Worse, character assassination proved an effective tactic, nearly sinking Justice Clarence Thomas's appointment four years later.”
In a 2018 piece in politico by Jeff Greenfield, the author attempts to put the permanently changed rules of SCOTUS nominations not at the feet of Bork but at the next set of hearings in 1990, this time with nominees of George HW Bush. The piece is entitled The Justice Who Built the Trump Court. Almost 30 years ago, a stealth nominee—not Robert Bork—changed everything about the politics of confirmation fights.
When Souter was nominated in 1990 to replace the retiring William Brennan, conservatives had built up a lengthening set of grievances about the Supreme Court nominees of their party's presidents. From Eisenhower on, Republican presidents had picked a remarkable number of justices who turned out to be either moderate or—just as frequently—squarely in the liberal camp. Earl Warren, William Brennan, Henry Blackmun, and John Paul Stevens were among the most consistent, ardent members of the Court's left. Sandra Day O'Connor and Anthony Kennedy were "swing" votes. And even those with strong conservative credentials were less than sure votes. Warren Burger, nominated by Richard Nixon, voted with the seven-member majority to make abortion a constitutionally protected right. (Lewis Powell and Potter Stewart concurred). William Rehnquist, chosen as a strong "law and order" justice by Ronald Reagan, would later pronounce the Miranda warning ("you have a right to remain silent") a permanent feature of the criminal justice system.
David Souter's chief asset, in fact, was that, in sharp contrast to Bork, whose writings and opinions were bountiful and provocative, Souter had no paper trail whatsoever. So when White House chief of staff (and former New Hampshire governor) John Sununu proclaimed that Souter would be "a home run for conservatives," many on the right were convinced. A St. Louis Post-Dispatch columnist celebrated that Souter would "provide the decisive fifth vote for a broad counterrevolution in constitutional law overturning decisions on abortion, affirmative action, and criminal procedure." That was enough to trigger some on the left into instant opposition: Molly Yard, president of the National Organization for Women, argued that Souter was "almost Neanderthal" and that confirming him would "end freedom for women in this country."
So there was no reason to doubt his conservative bona fides.
Except there was.
While Souter voted along generally conservative lines in his first year on the bench, he soon began to drift left. By 1992, he was part of the majority in Planned Parenthood v. Casey, reaffirming the core holding of Roe v. Wade. On cases ranging from voluntary school prayer to affirmative action, Souter lined up with his liberal colleagues. By 1995, the conservative Weekly Standard labeled him the '"stealth justice" and called him "one of the staunchest liberals on the Court—a more reliable champion of liberal causes than Clinton appointees Ruth Bader Ginsburg and Stephen Breyer.
In the Eisenhower-Nixon-Ford days, there were plenty of moderate and even liberal Republicans. But by 1990, the party was decidedly more conservative. And this latest heretic was one too many. His ascension, and his port-side journey, created a rallying cry that governed the next three decades of Republican nominations: "No More Souters!"
When George W. Bush found himself with two vacancies in 2005 (after Justice Sandra Day O'Connor's retirement and Chief Justice Rehnquist's death), he slotted John Roberts for the chief's job. He then picked White House counsel and close friend Harriet Miers to succeed O'Connor. It made political sense; for one thing, she'd be the only woman nominated by a Republican president on the Court. But objections began to arise almost immediately. Some were about her qualifications, her lack of experience on any bench, and her shaky answers on constitutional issues in her meetings with senators. But a major part of the opposition came from conservative groups that doubted she would be, in Bush's words, "a good conservative judge." She had even indicated to Senator Arlen Specter her belief in an unenumerated right of privacy. In the face of this opposition. The president withdrew her nomination and chose Court of Appeals Judge Samuel Alito instead.
In his job application as deputy assistant attorney general in 1985, Alito was a staunch conservative who named National Review and Barry Goldwater's 1964 presidential campaign as major influences. His court decisions on almost every issue reflected a consistent conservative philosophy. With increasingly influential groups like the Heritage Foundation and the Federalist Society as vetters and guardians of the faith, there would be no chance for another Souter to slip through.
The blowback from Souter made the Supreme Court a key—if not the key—issue for conservatives when judging candidates for high office. Despite the left's fears, Souter was still confirmed by 90-9. It was not to be for the next nominee, also nominated by Republic George HW Bush. We have explored some of the reasons why the left began to view the Court differently from its previous 170-year-old history. But in response, so has the right. Altogether three things changed the tenor of GOP responses to SCOTUS. The first was Bork, as we already explored, but the second could be embodied in the person of David Souter and the third Justice Clarence Thomas.
On July 1, 1991, President George H. W. Bush nominated Clarence Thomas for the Supreme Court of the United States to replace Thurgood Marshall, who had announced his retirement. At the time of his nomination, Thomas was a judge on the United States Court of Appeals for the District of Columbia Circuit; President Bush had appointed him to that position in March 1990.
The nomination proceedings were contentious from the start, especially regarding abortion. Many women's groups and civil rights groups opposed Thomas based on his conservative political views, just as they had opposed Bush's Supreme Court nominee from the previous year, David Souter.
Toward the end of the confirmation process, sexual harassment allegations against Thomas by Anita Hill, a law professor who had previously worked under Thomas at the United States Department of Education and then at the Equal Employment Opportunity Commission, were leaked to the media from a confidential FBI report. The allegations led to further investigations and a media frenzy about sexual harassment. As a result, televised hearings were re-opened and held by the Senate Judiciary Committee before the nomination was moved to the full, Democratic-controlled Senate for a vote.
On October 15, 1991, Thomas was confirmed to the United States Supreme Court by a narrow Senate majority of 52 to 48. Despite no other allegations against him, and over 30 years since, no other issues, Thomas is still vilified, today as much for his staunch conservative rulings as for the nomination process.
Writing about this in the Federalist, columnist Jordan Boyd writes that “Thomas's life is a beautiful example of the American dream and how he worked his way up with integrity and character from the streets of segregated Savannah, Ga., to the Supreme Court in Washington, DC. But unfortunately, as a result, he is repeatedly defamed by Democrats and their media cronies.
Thomas is no stranger to attacks from the corporate media and the left. During his confirmation, he was assailed with false reports of sexual assault that were peddled to stop him from assuming the bench. Recently, the media has called for Thomas's impeachment due to these decades-old allegations, which were riddled with falsehoods and inconsistencies.
In 2015 New York Times columnist Maureen Dowd said Thomas was a "creepy guy who acted pervy" to dig up those past allegations despite countless defenses of his character from his women colleagues. Then, just last year, Amazon censored Justice's documentary for no apparent reason other than a political one. More recently, the New Yorker tried to drudge up a controversy, which was a dud, over Thomas based on his wife's political activities.
Does Dowd actually know the Justice? Doubtful. But uber-liberal justice Sonia Sotomayor does, and though there would be no political benefit for saying so, her opinion of Thomas is a little different from the falsities perpetuated by leftist media, "I have probably disagreed with him more than any other justice," Sotomayor said of the conservative Justice. But, she said, the two maintain a friendship, partly because he is a "man who cares deeply about the court as an institution -- about the people who work here." She added that the two share a "common understanding about people and kindness."
Boyd adds, "Despite the left's attempts to tear him down, Thomas remains a resilient fighter for Americans and the Constitution. He cares about protecting unborn babies, freedom of speech, and preserving the nation's essence. The left constantly assails Thomas but for what? The crime of consistently ruling was in line with the philosophy and vision of the Founding Fathers, who wanted "liberty and justice for all."
Boyd notes a disturbing trend among liberals in their approach to black conservatives, "In an article published on Wednesday, The Washington Post, which has a history of being racist towards black conservatives, claimed that Thomas is a "Black justice whose rulings often resemble the thinking of White conservatives." What that even means is left to the fevered minds of the Post writers and their readers, but this same kind of characterization also seems to apply to other black conservatives such as South Carolina Senator Tim Scott, infamously labeled Uncle Tim, as a comparison to the black appeaser Uncle Tom from Harriet Beecher Stowe's 19th-century work. Antonin Scalia also produced a 30-year record of unparalleled commitment to originalist, anti-judicial activist jurisprudence but never came under Thomas's vitriol level. It is as if the left claims African Americans as their own, and any deviation from the ideology of that race needs to be punished.
Earlier I had noted Ruth Bader Ginsburg was the last to have near universal support for her nomination. But in the shadow of Bork, she established has become the Ginsburg Rule. Edwin Meese, former Attorney General of the United States, writing in Heritage, notes, "Ginsburg, while a smart lawyer, had been a radical activist. Her record as an ACLU litigator placed her far outside the mainstream of American law. For example, she had argued for legalizing prostitution, against separate prisons for men and women, and speculated that there could be a constitutional right to polygamy.
Some Republican senators wanted to know whether she still held such extreme views. On question after question, though, she refused to answer: Joe Biden, yes, that Joe Biden, still in charge of the judiciary committee which is in 2022, seems like a bad joke, stipulated that she had no obligation to answer questions about her personal views or on issues that might come before the Court. Despite her silence, the Senate confirmed Ginsburg, 93-3."
Michael Kinsley, Writing in the Atlantic on the eve of Elena Kagan's nomination, noted, "The flaw in this argument was that Bork's controversial opinions were the reason Reagan picked him in the first place. President Obama, however, is not in the mood to pick a new fight right now. That is one reason he is drawn to Solicitor General Elena Kagan to fill the seat being vacated by John Paul Stevens. Kagan has left a very small paper trail. She was never a judge. As a law professor at Harvard, she specialized in unfashionable topics that did not generate a lot of heat. Some liberals are starting to worry that she may be more conservative than the man she would replace. Best of luck to Elena Kagan, but it is absurd to choose a Supreme Court justice on the basis of who we know the least about. This absurdity arises only because of another absurdity: the unwritten rule that Supreme Court nominees need not--indeed, should not--answer questions about their judicial philosophy, except in the broadest and most bromidic terms, and certainly should not even hint at how they might rule in specific cases."
Today, there are three critical criteria for selection. First, no Souters, parties demand absolutism to party ideology (well hidden or forgotten, of course), a key contributor to the close votes now so commonplace and rare prior to Bork. Second, youth. If they could get away with it, the parties would nominate 30-somethings, but even as that is so egregious, the thought of a 60, or even 70 something is anathema as the selection because a Justice is now expected to serve at least 30 years. An addendum to this is physical fitness. No overweight Tafts who served as SCOTUS chief justice for what would now be a short term of nine years. The last two Justices to be seated on the Court, Amy Coney Barrett and Ketanji Brown Jackson, both look like they could trade their robes for jogging shoes and rip off a 10K without breaking a sweat. And the third piece, again thanks to Bork with an assist from Ginsburg, is a very light assortment of opinions. One would think it should be the opposite—a robust selection of rulings showing depth and experience. One would be wrong. It was the very breadth of Bork's work and his fearlessness in wading into controversial decisions that upended him.
As noted above, in 2005, George W. Bush opted for John Roberts and Samuel Alito with two picks for the Supreme Court. In the past, prior to Bork, both eminently qualified nominees would have coasted, but here are the actual numbers:
John Roberts 78 – 22. This number for a clearly qualified chief justice, just 12 years removed from radical RBG's 96 to 3 vote, should be stunning, but it gets worse. Samuel Alito, without the Bork paper trail nor the smears thrown at Clarence Thomas, and again, eminently qualified, was a mere 58 to 42.
Since the entire GOP was not yet onto the new hyper-partisanship, Obama nominees were not such as near-thing as the GOP ones:
Sonia Sotomayor, 2009 68-31
Elena Kagan, 2010 63-37
In 2013 Senate Majority Leader Harry Reid and Senate Democrats made a historic change to the Senate rules in order to bypass Republican obstruction. Often referred to in beltway slang as "the nuclear option," the rule change puts the kibosh on repeated attempts by Republicans to prevent Obama from staffing his administration or appointing judges to the federal bench. Supreme Court nominees can still be filibustered, but any majority party whose nominee was blocked would likely change the rules again. In one case, Reid led to obstruction of federal judges during the George W. Bush years to prevent the appointment of Miquel Estrada to the appellate Court. Chess player Reid surmised that Estrada was being groomed for bigger things and did not want a Republican to appoint the first Hispanic to the bench. That would later be Obama's purview with Sonia Sotomayor.
The GOP may be late to the game, but in Mitch McConnell's person, at least they learned the new rules. First, despite a firestorm of protest, Mitch McConnell 2016, with a Senate Majority, refused to fill a vacant seat on the Court created by the death of Antonin Scalia. Obama tried to dodge this by appointing "moderate" Merrick Garland. I am writing this in August of 2022, and Garland turns out to be about as moderate as Ted Kennedy or Elizabeth Warren.
But the GOP would get the message with the Trump picks: Neil Gorsuch, 2017, another highly qualified Justice 54-45. Amy Coney Barrett in 2020, part of this was a protest of Trump selecting a nominee in an election year as opposed to Mitch McConnell holding up the Merrick Garland vote. They do not call McConnell the murder turtle for nothing. Barret squeaked in at 52-48.
And then there is Brett Kavanaugh. But, just as Clarence Thomas was accused of sexual misconduct, so it was with Brett Kavanaugh with a slight difference. Whereas Thomas was accused solely by a worker with recent work history, Kavanaugh was charged with a crime that was 30 years old.
Then two more accusations came at Kavanaugh, and both women later were found to either be lying or could not recall any details about the alleged incidents. Writer Lisa Booth notes, “Senate Majority Leader Mitch McConnell (R., Ky.) said the Democrats had tried to deny Justice Kavanaugh due process and the presumption of innocence. "The far left's willingness to seize on completely uncorroborated and unsubstantiated allegations during last year's confirmation process was a dark and embarrassing chapter for the Senate," he tweeted. But, he added: "I look forward to many years of service to come from Justice Kavanaugh."
The left drove part of this in terms of no longer having the massive legislative power of the teens, in the 1930s and the mid-1960s. But there is something else at work. Two of the greatest decisions in the history of the Republic over the past 120 years, what is the size and scope of government, and what is our role in the world, have been largely agreed upon. Again, one hears about divisiveness and polarization, but in terms of these two massive issues, the first answer is "pretty big," and the second is America First.
That leaves other issues to kick around, but. In contrast, the federal government used to contend over slavery, price controls, or whether to be a gold or silver standard; today, we debate pronouns, bathroom access, and the definition of recession.
This is not to say they are not still some major issues, which leads us to the third factor. A supine Congress enabled and abetted by the primary system. Today every member of Congress lives not in terror of being a lousy legislator or disappointing the bulk of constituents within their district. Instead, they live in terror of a small rump of especially active people within their district or state. If you are a Republican, you cannot be too moderate lest you get primaried from the activists on that flank. If you are a moderate liberal, you may be flanked to the left by some wild-eyed progressive.
This is how AOC got her Brooklyn seat and why Chuck Schumer, Democrat Senior Majority Senate leader and once a reasonably rational human being, sounds increasingly like Vermont Senator Bernie Sanders more than his predecessor Daniel Patrick Moynihan, one of the most incisive political thinkers of the late 20th century.
There is a simple answer to not getting primaried. Do not have a voting record. Progressives in the 1960s lamented that they did not have the FDR or LBJ super majorities to get their agenda through, so they turned to the Supreme Court, today's progressives and their GOP counterparts cannot even get the legislators they have to vote, so it all goes to SCOTUS.
All this means is that issues customarily overseen by the legislature, everything from the writing of healthcare laws to political finance and unions dues to immigration issues, everything from the scope of government to whether abortion is legal, gets dumped onto the Supreme Court of the United States. One of the reasons that issues like Dred Scott and Plessy stand out in our era is the racial aspect. But another is they represent the Supreme Court entering and enacting political legislation punted by Congress. What was generational in the 19th century is annualized in the 21st.
There is a movement on the left to denigrate the founders and, by extension, the Constitution itself. The reality is that the founders were a uniquely brilliant group, and the system of government they established has not only stood the test of time for nearly a quarter of a millennium but has created the wealthiest nation to have ever existed. The system created by the founders imagined that SCOTUS's core role was to act as a check, an interpreter, and a brake, on the legislature's power to make detrimental changes in governance. It was never envisioned that the unelected justices would BE the governance and would enact the laws.
Suppose you are one of those, on the right and now on the left, who feel that the Supreme Court of the United wields too much power. It is time to reconsider not only its role but that of the legislative and executive branches. But let's be clear on this. This is not chicken and egg. The left and the Democratic Party favor ever larger government, ever greater intrusion and control of the American people's lives. It is the left where emanated judicial activism. It is the left who made up laws like the right to privacy in terms of abortion, nowhere in the Constitution, to justify their social policies. It is the left who first impugned the professional nature of a Justice's decisions, as with Bork. It is the left who smears the personal character of GOP nominees, as seen with Thomas and Kavanaugh. It is the left who began to vote against judges not through quality but by ideology. It was the left that blew up the filibuster rule on judges.
With the recent Dobbs v. Mississippi and, more importantly, West Virginia V EPA, that is beginning to bring balance nee sanity back to the separation of powers and the role of the Supreme Court. But Justice Sotomayor, who had nice things to say about Thomas, did not say very nice things about Dobbs, "The newest ban that Mississippi has put in place, the six-week ban, the Senate sponsor said we're doing it because we have new Justices on the Supreme Court," the Justice said, getting personal about the newest members of the Court, Brett Kavanaugh, and Amy Coney Barrett. "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?. . I don't see how it is possible."
It took Marbury V. Madison in 1803 to lend legitimacy as a co-equal, third branch of government. But it took decades of reinforcement and endured despite grievous errors like Dred Scott. More recently, it took about 60 years, ranging from the Griswold decision in 1965 to the 2022 unhinged vitriol exhibited by Sotomayor, to get us to this place of questioning the Court's very legitimacy. It is now commonplace on the left to corrupt once powerful institutions that provided guardrails around our society. The singular issue is mission creep, as the left takes an existing mission, expands it, changes it, and warps it to fit its views. This goes back to Woodrow Wilson trying to do this to the Constitution itself, and in recent decades we have seen this with SCOTUS. On the right, the call is to abolish many of these institutions and replace them with a kind of hollow populism. I have a better idea. And this is what the six conservative Justices are doing today. Reestablish the mission, the scope, the role, and the very reason for being of the institution. In the case of SCOTUS, it is to simply interpret laws passed by the elective bodies. To use the crude analogy, to call balls and strikes but not to take the mound or sit in the batter's box. How long will it take to get back to balance, get back to the mission, to sanity? Hard to say, but the work must continue forward, and the striving for a Constitutional government of and for the people must never end.