The last time the court had a majority of justices nominated by a Democratic president was in 1969, when Abe Fortas resigned. In the years since, Republican presidents have named 15 of 19 justices. That’s right, Democrats have had only four nominees confirmed in the past half-century.
Part of this lopsidedness reflects the luck of the presidential draw — Richard M. Nixon had four appointments, Jimmy Carter none — or bad retirement timing on the part of justices.
Partly, it reflects the GOP willingness to play legislative hardball in filling — or obstructing the filling — of vacancies. The era of majority Republican-appointed justices would have ended in 2016 with the confirmation of Merrick Garland, President Barack Obama’s nominee to replace Antonin Scalia. But, of course, the Republican-controlled Senate did not permit that to happen, though the vacancy arose nine months before the presidential election.
And partly it is a consequence of the impact of the electoral college. Consider: There are now six Republican-nominated justices on the high court, yet during the tenure of every sitting justice, a Republican president has won the popular vote just once — George W. Bush in 2004.
The Senate has its own version of this phenomenon. Since the Fortas retirement in 1969, Democrats have controlled the Senate in more than half of the 26 Congresses. But as with the electoral college, the Senate’s structure, giving every state two senators no matter its size, exacerbates the inequities.
Senators representing significant majorities of the population voted to reject the three Supreme Court nominations made by President Trump, who himself received nearly 3 million fewer votes than his opponent. This is minority rule piled on minority rule, albeit counter-majoritarian rules enshrined in the constitution.
These important points were made forcefully by Georgetown University law professor Marty Lederman on the day of Brett M. Kavanaugh’s confirmation two years ago. They hold truer today, with Barrett’s confirmation.
As Lederman observed, “there’s been an extraordinarily stark and prolonged mismatch between (on the one hand) Democrats’ political power and the embrace of Democratic positions by strong majorities of the nation, and (on the other hand) Republican dominance on the Court — leading to a possible forthcoming ultraconservative era of jurisprudence.”
The numbers only tell part of the story. During a less partisan era, and in particular during an era when ideological considerations played a less decisive role in selecting Supreme Court justices, the fact of significantly greater numbers of Republican- than Democratic-appointed justices mattered far less.
After all, two of the liberal leaders of the Warren court, Earl Warren himself and William J. Brennan Jr., were named by Republican Dwight D. Eisenhower. Other Republican presidents have found themselves disappointed by their nominees’ liberal tendencies on the court, including Nixon (Harry A. Blackmun), Gerald Ford (John Paul Stevens), Ronald Reagan (Sandra Day O’Connor and Anthony M. Kennedy), and George H.W. Bush (David Souter).
But the era of justices who surprise is over. The conservative legal movement learned from its mistakes; its rallying cry has been, “No more Souters.” It created an ideological and financial architecture to identify and groom promising candidates, and to give them enough seasoning on the bench to ensure that nominees’ legal philosophies were reliably conservative. The elimination of the filibuster for Supreme Court nominees, with the confirmation of Neil M. Gorsuch in 2017, removed any incentive toward moderation.
The last time the Supreme Court had six Republican-nominated justices, that roster included Stevens, a liberal, and Kennedy, a swing vote. Now, there are six solid conservatives, even if the chief justice has deviated at a few key moments. Some of his colleagues are champing at the bit to implement their vision of the constitution. So an energetically conservative court now helps govern a centrist country.
The court serves an important counter-majoritarian role in preserving constitutional protections; we don’t want it to slavishly follow the election returns. But neither is it good for the court to be sharply out of step with the national consensus. That’s bad for the institution and bad for the country.
The court’s makeup is determined by the electoral landscape (control of the presidency and the Senate). But its rulings — on gerrymandering, on campaign finance, on voting rights — help define the contours of that landscape.
As Lederman put it, “there’s a strong — and not coincidental — symbiosis between the Republicans’ long-term, successful efforts to shape the Court and the ability of the GOP to secure success in the political arena beyond what its popular support would naturally produce: the entrenchments are mutually reinforcing.”
Mutually reinforcing, and distinctly unhealthy.