THE FUTURE OF THE SUPREME COURT AND THE CONSTITUTION

WHAT MIGHT HAVE BEEN

Everything changed in the Supreme Court on Saturday, February 13, 2016, when Justice Antonin Scalia died. From 1971, when President Nixon had his third and fourth nominees confirmed for the Court, until February 13, 2016, there were always at least five justices, and at times as many as eight justices, who had been appointed by a Republican president. For forty-five years, whenever the Court was ideologically divided, more often than not there were five votes for a conservative result.

But with the death of Antonin Scalia, there were suddenly only four justices appointed by Republican presidents: Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito. And there were an equal number appointed by Democratic presidents: Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Although there have been times in American history where justices' ideology did not correspond to the political party of the appointing president, that is not true today.

Roberts, Thomas, and Alito are very conservative. Many have a misleading impression of Roberts because he joined the liberal justices to uphold the Affordable Care Act (2010). But overall Roberts virtually always votes with his conservative colleagues, especially in the high-profile areas such as abortion rights, affirmative action, rights for criminal defendants, gay and lesbian rights, gun rights, voting rights, and religious freedom. At the same time, Ginsburg, Breyer, Sotomayor, and Kagan consistently vote in a liberal direction.

Kennedy has been the swing justice, by far the justice who votes most often in the majority. In 2016–2017, officially known as October Term 2016, he was in the majority in 97 percent of all the decisions. The year before, he was in the majority in 98 percent of the cases. He has been the fifth vote with the four liberal justices to strike down laws prohibiting same-sex marriage, restricting access to abortion, and challenging affirmative action programs. But overall, he votes with the conservatives about 75 percent of the time in ideologically divided 5– rulings. For example, he was the key fifth vote to strike down gun control laws for the first time in American history, to reject constitutional challenges to the death penalty, to allow corporations to spend unlimited amounts of money in election campaigns, and to allow business owners to refuse to provide contraceptive coverage for their employees based on the owners' religious beliefs.

In the past, there have been ideological surprises on the Supreme Court. Justices John Paul Stevens and David Souter were appointed by Republican presidents (Gerald Ford and George H. W. Bush, respectively), but by the end of their tenure on the Court they were consistently with the liberal bloc. Justice Byron White was appointed by President John F. Kennedy, but he voted much more often with the conservative justices, for example, rejecting a constitutional right to abortion and dissenting in cases expanding rights for criminal defendants. Earlier, Justice Felix Frankfurter was appointed by President Franklin Roosevelt and expected to be liberal, but he turned out to be a very conservative justice.

Such ideological surprises are much less likely today. Some of that is because the country is more divided along ideological lines than at many earlier times, and this is reflected in the justices who are picked. For instance, President Dwight Eisenhower was a Republican, but he was not particularly ideologically defined; there was uncertainty as to whether he was going to run for president as a Democrat or a Republican. He appointed two liberals to the Court: Earl Warren and William Brennan, a Democrat. It is impossible to imagine a president today appointing someone from the other political party.

There is also far more vetting today to make sure of a nominee's ideology. Republicans want to be sure that there are no more David Souters. Souter, a former justice on the New Hampshire Supreme Court and briefly a federal court of appeals judge, was picked for the Court by President George H. W. Bush in 1990. Presidential adviser John Sununu and Senator Warren Rudman assured President Bush that Souter would be a "home run" in his conservatism. Once on the Court, however, he more often voted with the liberal justices: he was the fifth vote to reaffirm Roe v. Wade (1973) and limit prayer in public schools. Both Republican and Democratic presidents have learned from this and now do a much more thorough vetting of the ideology of prospective nominees. The last picks for the Supreme Court — Roberts, Alito, Sotomayor, Kagan, and Gorsuch — have all been exactly what the party of their nominating president have wanted.

The death of Justice Scalia and the resulting 4– split on the Court offered the possibility of a majority of justices appointed by a Democratic president for the first time since 1971. This is important because major ideological shifts on the Supreme Court are rare. The Court became very conservative by the 1880s and remained that way until 1936, striking down over two hundred progressive laws, such as those limiting child labor and imposing minimum wages and maximum hours in the workplace.

This changed in 1937, and soon after, President Franklin Roosevelt was able to fill the Court with Democrats committed to upholding New Deal programs. From the late 1930s through 1971, the majority of the justices had been appointed by Democratic presidents. Especially under the leadership of Chief Justice Earl Warren, the Court was famously liberal, striking down laws requiring racial segregation, applying the Bill of Rights to state and local governments, significantly increasing the rights of criminal defendants, and greatly expanding voting rights.

President Richard Nixon was able to select four Supreme Court justices between 1969 and 1971: Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist. There has been a solid Republican-appointed majority on the Court ever since. Replacing Justice Scalia with a Democrat would have dramatically shifted the Court's ideological balance for the first time since then. That is why Senate Republicans refused to hold hearings or a vote on President Barack Obama's nomination of Chief Judge Merrick Garland for the Supreme Court. Unquestionably, Garland was superbly qualified. He had the perfect résumé for the position: a graduate of Harvard College and Harvard Law School, he clerked on the Supreme Court, was a federal...