The current radical court didn’t have to happen
We all know that Mitch McConnell stole two Supreme Court seats and it’s likely that Kavanaugh was confirmed because the FBI didn’t do its job But Michael Tomasky traces the radicalization of the court back much further and it presents a very interesting counterfactual. He says it was the resignation of Thurgood Marshall in 1991, a time before the Court became so blatantly partisan, that did it:
[George H.W.] Bush replaced Marshall with Clarence Thomas. Thomas shifted the court’s balance dramatically. On the day Marshall retired, the court had seven justices appointed by Republicans and only two by Democrats, but such were things in those days that that fact did not give conservatives a 7–2 edge. Far from it. The court was much more of an ideological hodgepodge in those days. From right to center to left, you had: Antonin Scalia (appointed by Reagan), William Rehnquist (Nixon), Anthony Kennedy (Reagan), Sandra Day O’Connor (Reagan), Byron White (Kennedy), David Souter (Bush), John Paul Stevens (Ford), Thurgood Marshall (Johnson), and Harry Blackmun (Nixon). You can call that a 5–4 conservative majority if you wish, and it was definitely considered such, because Reagan’s appointees moved the court to the right of where it had been previously. But by the lamentable standards we’ve come to know, it was still center-right. White was a centrist. Kennedy and O’Connor weren’t yet as iconoclastic as they would become, but they weren’t as hard right as Scalia and Rehnquist. Souter started out somewhat more conservative, but later he became a pretty reliable liberal.
Thomas, though, changed the whole dynamic. Now the court had three hard-core rightists. The wind was truly in the Federalist Society’s sails, and the existence of a hard-right majority began to come into focus as a thing to worry about.
At the time of Marshall’s retirement, some observers wondered why he didn’t just wait for the next presidential election, just a year away. He acknowledged that he gave the matter a little thought, but his health was declining; he felt isolated after the retirement of his colleague William Brennan; and in those days, as I said, the process just wasn’t the war it has since become.
So why am I going into all this? You will see directly.
If Marshall hadn’t retired, he of course would have been replaced when he died. And he died on … January 24, 1993. In other words, the fourth full day of Bill Clinton’s presidency. Clinton would obviously have replaced Marshall with perhaps not a raging liberal tiger but certainly someone who was basically pro-choice, pro–civil rights, pro–campaign finance regulation, pro-environment, and so on. All those conservative 5–4 decisions over the last 30 years—on women’s rights, voting rights, campaign finance, unions, religion, so much else—might have been liberal 5–4 decisions. And there would have been no such thing, this week, as Politico’s leak of the decade, because (assuming the mythical Clinton appointee stayed alive until now) there would not be five votes to overturn Roe.
So that, my friends, was an incredibly fateful moment. That, and Ruth Bader Ginsburg’s decision not to retire in 2013 or 2014, when there was a Democratic president and Senate. We love RBG, but she was wrong to hold on so long. It cost liberalism dearly. If Marshall had waited and Ginsburg had not, we’d have a solid liberal court majority today.
Instead, of course, we are embarking on a new era of Supreme Court radicalism. As you’ve surely already read or heard, the grim logic of the majority opinion overturning Roe v. Wade that leaked to Politico this week, if it stands, means that everything is on the table. Because if they can strip away a half-century-old precedent on the grounds that a half-century isn’t long enough for a right to prove its worth and durability, which Alito essentially argued, then there are a lot of things they can strip away.
Samuel Alito says, no, this decision overturning Roe is narrow, concerning the specific urgent matter of fetal life, rather than, say, a married couple’s privacy or one’s religious beliefs. Amy Coney Barrett, at her confirmation hearing, made the distinction between mere precedent and “super-precedent,” the latter being long-held precedent that isn’t controversial anymore, citing Brown v. Board. OK, so maybe they won’t strike down Brown (although the schools have resegregated to a depressing extent, thanks to the Roberts court). But Obergefell, upholding gay marriage? Alas, I’d be quite surprised if these justices don’t overturn that one day, provided they find the right vehicle. And don’t limit your imagination to the so-called social issues. They want to dismantle the administrative state, meaning, for example, that the Environmental Protection Agency couldn’t even write environmental regulations. They (or some of them; whether it’s five is unclear) want to undo one-person, one-vote, which would allow state legislatures to draw districts however they wanted. They want essentially no campaign finance laws, meaning that in theory, the Kochs, Mercers, and a handful of others could buy Congress.
We are entering a period of very radical Supreme Court jurisprudence. It could have been different. But … it isn’t.
No, it isn’t. Trump and McConnell did this and their legacy is secure for a very long time to come.