The blame starts, however, with Richard Nixon, who turned the Supreme Court into a partisan battleground as part of the divisive campaign he waged for the presidency in 1968. He was the first of what are now five Republican presidents who have pushed the ideological envelope with appointments that have given the high court a seemingly permanent conservative orientation.
Nixon tapped into law-and-order sentiment by accusing the Warren Court of coddling criminals while his so-called southern strategy drew on the South’s continuing resentment of the court’s role in school desegregation. Today, most of the Warren Court’s flashpoint rulings are accepted as legal mainstream. The Miranda rule on police interrogation is now part of popular culture, according to no less a judicial conservative than the late chief justice William Rehnquist. The Gideon ruling on right to counsel is hailed as a landmark even if its promise less than completely fulfilled. Outside criminal law, few if any mainstream legal figures would go back on the Brown desegregation ruling, the Baker v. Carr line of cases on reapportionment, or the New York Times v. Sullivan First Amendment decision on libel law.
Still, Nixon turned immediately to setting a new course. After a Republican-led filibuster blocked Abe Fortas's nomination as chief justice, Nixon turned in his first months in office to the most prominent judicial conservative of the time: Warren Burger, an outspoken critic of Warren Court rulings on criminal law. For a second vacancy, Nixon picked two conservative judges rejected by the Senate’s Democratic majority, Clement Haynsworth and G. Harrold Carswell, and was then forced to turn to the moderate Harry Blackmun.
To fill two more vacancies, however, Nixon chose Rehnquist, a Goldwater conservative transplanted to Arizona from the Midwest, and Lewis Powell, an establishment business-oriented Virginian seen as somewhat moderate. Powell went on, however, to help form 5--4 conservative majorities in such decisions as those that limited school desegregation remedies, cut off death penalty challenges, and upheld state anti-sodomy laws.
President Gerald Ford deliberately moved to the center with his sole Supreme Court appointee: John Paul Stevens, a Republican with a non-ideological record on the federal appeals court in Chicago. President Ronald Reagan’s decision to name Sandra Day O’Connor as the first female justice was likewise more political than ideological, but she was vouched for by her conservative Stanford Law School classmate, Rehnquist.
Reagan followed with the three most conservative Supreme Court nominations since the 1920s: Rehnquist as chief justice to succeed Burger, Antonin Scalia to fill Rehnquist’s seat, and one year later the archconservative Robert Bork to succeed Powell. Bork showed himself in his confirmation hearing testimony to be outside the legal and popular mainstream: the Senate’s bipartisan 58-42 vote to reject the nomination refutes the continuing conservative meme that he was mistreated or misjudged. And, as with Nixon’s situation two decades earlier, Reagan first tried another committed conservative, the pot-smoking Douglas Ginsburg, before turning to the moderate Californian Anthony Kennedy.
History provides no definitive answer whether President George H.W. Bush should have known that David Souter would prove to be less conservative than vouched for by his principal White House supporter, the fellow New Hampshirean John Sununu. For his second Supreme Court appointment, however, Bush turned to Clarence Thomas, who had already flashed his doctrinaire conservative views in writings and speeches though not yet in his brief record on the federal appeals court in the District of Columbia. Thomas won confirmation only because southern Democrats saw political risks back home in rejecting the only African American nominee Bush was likely to choose.
As the first Democratic nominees in a quarter-century, President Bill Clinton picked two appellate judges with centrist records and reputations: Ruth Bader Ginsburg and Stephen Breyer. Two decades later, President Barack Obama’s first two nominees, Sonia Sotomayor and Elena Kagan, had supporters across the ideological spectrum: Sotomayor had been appointed to the district court by the first president Bush and then elevated by Clinton to the federal appeals court in New York; Kagan had famously soothed the ideological warfare at Harvard Law School during her tenure as dean.
Sotomayor and Kagan were both rightly seen as “progressives,” but Obama had more liberal candidates to choose from. His third nominee, Merrick Garland, was more conspicuously chosen as a moderate over candidates who had more liberal records and stronger support from liberal advocacy groups. But Senate Republicans replied to his de-escalating move not with accommodation but resistance by refusing even to consider Garland’s nomination much less to put it to a vote.
Obama’s actions contrasted with President George W. Bush’s record on Supreme Court appointments. John Roberts came with gold-plated academic and professional credentials, but also a solid record as a Reagan-era conservative. Conservatives shot down Bush’s nomination of his White House counsel Harriet Miers, and he followed by turning to a judge, Samuel Alito, who satisfied the conservative groups’ litmus tests and has proved to be as conservative as they had hoped.
President Trump’s outsourcing of the Supreme Court nomination to the Federalist Society and the Heritage Foundation carries the conservative politicization of the court one significant step further. Neil Gorsuch may not have been the most conservative judge on Trump’s list of 21 candidates, but he has a deserved reputation as a reliable conservative and revealed himself as such through his calculated silences in his confirmation hearing.
With his confirmation, the Supreme Court now includes three justices with among the narrowest Senate mandates in history. The Senate’s 54-45 vote to confirm Gorsuch was the fourth closest in history; Thomas’s 52-48 margin was the third closest, and Alito’s 58-42 vote was also narrow by historical standards. A half-century of Republican moves have left a picture of the court as little more than the third of three political branches of the national government.
Despite what Republican senators would have the public believe, it is the conservative justices today who have an activist ideological agenda, not the liberal bloc. Gorsuch's calls to make it easier to overrule administrative agencies or harder to regulate political campaign contributions point him toward the Thomas-Alito alliance that views many liberal precedents as ripe for reversal. The court has a deep reservoir of public confidence, but the Republicans' siege on the marble palace has weakened that confidence. As Gorsuch's presidential benefactor might say, Sad!