A Supreme Court seat is vacant. A Republican-controlled Senate is preparing to confirm a Republican president’s nominee. And liberals are aghast at the tightening right-wing grip on the highest court in the land.
The sudden vacancy has given the president “a chance to consolidate what could become the most conservative majority on the Supreme Court in more than 50 years,” reports the St. Louis Post-Dispatch. With the addition of another Republican-appointed justice, observes Nina Totenberg, NPR’s legal affairs reporter, “the conservatives will all but have a complete lock on the Supreme Court.” In the Palm Beach Post, an editorial writer gloomily forecasts that “by next July, it’s likely that the most conservative Supreme Court in decades will have overturned Roe v. Wade.”
There is no denying the anguish on the left at the prospect of a conservative jurist succeeding Ruth Bader Ginsburg on the Supreme Court, but those remarks weren’t gleaned from the past week’s news. They were made 30 years ago, when the Republican president was George H.W. Bush, and the vacant seat was that of retiring Justice William Brennan.
Laments about how ominously conservative the Supreme Court has become have been a staple of our national discourse for decades. And, just like 30 years ago, there is no end of liberal distress about the travesties in store if another Republican appointee joins the court. Should President Trump succeed in naming Ginsburg’s replacement, declares Rolling Stone, “almost everything she worked for in her career is sure to be swept away in the coming years.”
Time for a reality check.
In its latest term, the most conservative Supreme Court since the 1930s handed down decision after decision that gladdened the hearts of liberals or disappointed advocates on the right.
It blocked the Trump administration from ending DACA, the Deferred Action for Childhood Arrivals program, preventing the potential deportation of 650,000 young immigrants known as “dreamers.”
It shot down a challenge to New York City’s restrictive handgun law, and refused to even consider 10 other cases contesting the constitutionality of gun controls.
It ruled that Title VII of the Civil Rights Act bars an employer from firing a worker for being gay or transgender.
It invalidated a Louisiana law requiring doctors in abortion clinics to have admitting privileges at a nearby hospital.
It rejected a church’s insistence that it was unlawful to keep houses of worship closed due to the pandemic while casinos were permitted to open.
It swept aside Trump’s claim that he is protected by presidential immunity from having his business records subpoenaed by Congress and federal prosecutors.
Yes, some of those cases were decided with 5-4 majorities. But on some of the biggest liberal wins (LGBT job protections, Trump’s immunity, handguns), two or even three of the conservatives were on the prevailing side.
In short, the Supreme Court repeatedly confirmed that it is no knee-jerk opponent of everything liberal Democrats value and offers no guarantee of victory for conservative Republicans.
It’s a fallacy to think that the Supreme Court can be reduced to push-button predictability based on the politics of the justices or the party of the president who appoints them. The court simply doesn’t work that way. Notwithstanding the by-now-inevitable hyperventilation about how much is riding on whether the nominee is confirmed, the justices in most cases are not sharply divided. In its 2019-20 term, the Supreme Court issued decisions in 69 cases. Only 13 ended in a bare 5-4 split, whereas 25 were decided unanimously or with just one dissent.
None of this is to suggest that the justices' rulings are never influenced by their political ideology or judicial philosophy. But there are other considerations that bear on how cases are decided, from respect for precedent to shifts in public opinion to concern for the high court’s reputation. Decisions can be shaped by negotiations among the justices or by points raised during oral argument. And there is a long history of justices shifting ideologically — usually to the left.
Would the confirmation of another conservative justice affect future rulings? Undoubtedly. But it isn’t so easy to say how. “The conservative justices are jurisprudentially conservative, but that this doesn’t always translate into politically conservative results,” says Jonathan Adler, a law professor at Case Western Reserve University. “This is why they often reach conclusions that those on their ‘side’ might not like. And the court’s conservatives are not all conservative in the same way. Neil Gorsuch and Clarence Thomas are more originalist and textualist; John Roberts is more minimalist.”
For decades, abortion-rights activists have warned that Roe v. Wade is hanging by a thread, yet at every crucial juncture it has been upheld by Republican appointees on the high court. In the 1992 landmark of Planned Parenthood v. Casey, which ratified the “essential holding” of Roe, all the justices in the majority were Republican appointees. In the Louisiana case this year, Chief Justice Roberts voted with the majority to strike down an abortion restriction he had previous supported as a dissenter — not because his personal view changed, but to abide by the principle of stare decisis, deferring to precedent. The result, as National Review put it in a headline, was that “Roberts Sides with High Court’s Left Bloc to Safeguard Abortion.”
Whoever replaces RBG, there are bound to be Supreme Court decisions that will have conservatives spitting nails. There are bound to be others that will have the same effect on liberals, as Citizens United and Shelby County v. Holder did in the past decade. What should matter most in a nominee is not whether she leans to the left or the right, but whether she will strive “faithfully and impartially” to deliver what the job demands: equal justice under law.
Jeff Jacoby can be reached at email@example.com. Follow him on Twitter @jeff_jacoby. To subscribe to Arguable, his weekly newsletter, visit bitly.com/Arguable.