The Supreme Court didn't have to be conservative the last fifty years

The death of Ruth Bader Ginsburg has left most Democrats despondent for our future.  She will likely be remembered longer than most her colleagues (and far longer than Republican Senators rushing to replace her) for her never ending fight for rights of all Americans.  Fear is widespread of a deeply conservative court addressing voting rights, reproductive rights, and other social and economic issues in coming decades.  

Republican nominees have been reliably conservative since the Reagan administration (yes, O’Connor and Kennedy were sometimes “swing” votes, but they were overwhelmingly conservative).  Since 1986 all Republican nominees have been Roman Catholic with the exception of David Souter.  Whether the nominations were to court the Catholic vote or to appear to choose an anti-abortion jurist is an interesting question.  If they were meant to appease anti-abortion activists, such efforts were rather superficial at best, as most jurists consider adhering to precedent a near-sacred principle, mainly because if the law changes based on the whims or religious faith of judges, it becomes as arbitrary and suspect as politics.  This past court term Chief Justice Roberts voted to stay a lower court ruling very similar to one he voted to overturn during the previous term because of the precedent of the previous ruling, although he was the only conservative Justice who adhered to the court's precedent.

 

For much of American history, a non-Protestant nominee was extremely rare because of strong anti-Semitic and anti-Catholic bigotry prevalent in the US until relatively recently.  In the near future, 7 of 9 justices will be Roman Catholic in a nation in which a little over 20% of the people are practicing Catholics (yes, Gorsuch goes to an Episcopal church now because his wife is Episcopalian, but he was raised Roman Catholic and attended Catholic schools).  Religious affiliation should not be an issue in selection of justices, but only one Christian faith tradition is represented on the court, much like when only Protestants served on the Court.  (That the other two justices are Jewish makes the body rather unrepresentative of a society of which 3/4 of the population are neither Catholic nor Jewish but a hodgepodge of Protestant Christians, atheists, agnostics, Muslims, and followers of assorted eastern faiths.) All that said, every one of the justices who serve on the Supreme Court is extremely intelligent and well versed in the law, thus well qualified to serve on the nation's highest court (though I wouldn't have chosen most of the Republicans, but because of their conservative judicial philosophies, not because of their religious faiths).  

 

Historically, the Supreme Court has been a conservative body.  The only relatively liberal period in the court's history was during the years Earl Warren was the Chief Justice, a period of a decade and a half from 1954 to 1969.  The liberal bent of the court was somewhat remarkable considering Earl Warren was Attorney General and then Governor of California during the Second World War during which he pushed for the internment of Japanese Americans, though by 1944 he reconsidered and pushed for their return to their homes.  Perhaps guilt over his actions in the 1940s inspired his strong push for the rights of all as Chief Justice in the 1950s and 1960s.

The court has been conservative since 1969, even as some Republican appointees such as Harry Blackmun and John Paul Stevens and before them William Brennan and Earl Warren shifted leftward during their tenure, a common tendency of some Republican appointees that ended with the appointees of the Reagan administration.  All of the Republican presidents since 1969 have had opportunities to appoint justices--even Gerald Ford appointed a justice and he was in office a little over two years.  Though both Bill Clinton and Barack Obama named justices to the court, Jimmy Carter did not. (Carter is the only president in US history who served a full term and did not appoint a Supreme Court Justice, though he appointed a large number of lower court judges during an expansion of federal courts in the late 1970s.). An interesting fact: with RBG's replacement, a majority of the court will consist of justices nominated by Republican presidents who lost the popular vote. 

 

But how did the court make such a dramatic shift from the unusually liberal court of the Warren era to the conservative court of the last half-century?  Frankly, it goes back to Lyndon Johnson.  LBJ is among my most admired presidents for the moral courage he displayed pushing the Civil Rights and Voting Rights Acts through Congress even though he was aware of the damage passage could do to his party's support in the South.  He also pushed through the Great Society programs.  So, thanks to his efforts, the US was a better place in many ways after his presidency than it was when he took office.  But he is partially responsible for the conservative majority for much of the past five decades. 

 

Johnson appointed his friend and advisor Abe Fortas as an Associate Justice in 1965 without fully vetting him, as he was on a permanent retainer from a Wall Street financier and continued to receive payments as an Associate Justice.  Fortas was a great lawyer, having previously argued the case of Gideon vs. Wainwright before the Supreme Court whose verdict set the precedent of right to counsel, and was a good Justice during his tenure, but his income from the financier as well as legal yet exorbitant speaking fees from American University weakened his ethical reputation.   

 

Chief Justice Earl Warren wanted to retire in 1968 and Johnson nominated Fortas for the role of Chief Justice and Homer Thornberry to replace Fortas as Associate Justice.  Even though Democrats had a near super-majority in the Senate, Republicans and Southern Democrats, still bruised by the passage of the Civil and Voting Rights Acts a couple years before, fought the nomination to a standstill (the filibuster was very much intact 50 years ago) and Warren retired in 1969, after Richard Nixon was elected.  Fortas subsequently resigned in 1969 when his contract with the financier was revealed in the press.  Thus Nixon had two seats to fill in his first year in the White House.  He subsequently filled two more seats during his tenure, confirming even with the leftward drift of some Republican appointees the court's shift to the right which has endured to this day. 

 

Had Johnson named clean nominees for the Associate Justice and subsequent Chief Justice positions on the court, the Court would definitely have been a more centrist and liberal body for much of 1970s and perhaps the 1980s.  But because Republican presidents nominated all supreme court replacements from 1969 to 1993, the court would probably have swung conservative again eventually, depending on whether or not the Johnson appointees remained as Justices until the Clinton administration.  However, had both appointees stayed alive and on the court until the Clinton administration (tenures of over 25 years on the court are not unusual), the balance of the court may have remained relatively liberal/centrist until the recent death of RBG.   

 

Had the court not tilted conservative over the past five decades, imagine the outcomes from these cases:

• Bush vs. Gore - the Supreme Court elected Bush II as president 
• Citizens United vs. FEC - decided money is speech 
• District of Columbia vs. Heller - gutted gun control  
• Shelby County vs. Holder - gutted Voting Rights act 

Johnson's legacy will forever be cursed by the US involvement in Southeast Asia which he inherited from Kennedy and Eisenhower before him.  On the other hand, his pushing through the Civil and Voting Rights Acts and the Great Society programs made the US truly a more perfect union.  But even though he nominated Thurgood Marshall to the court, his errant nominations of Abe Fortas to the court contributed to a conservative tilt on the Supreme Court that has endured for half a century.