It seems like during the last couple of summers, scholars following the US Supreme Court (hereafter, the SCOTUS) have witnessed a familiar pattern: In the latter half of June, every new decision from the bench adds to the anticipation of the “big kahuna” – the landmark cases that even the European press covers extensively. In 2012, it was National Federation of Independent Business v. Sebelius, or the “Obamacare” case; in 2013, it was United States v. Windsor, the same-sex marriage case; and this year it was Burwell v. Hobby Lobby, a case combining Obamacare and contraception. In fact, following Midsummer, when the big cases get decided (June 28, 26, and 30, respectively), it seems like “SCOTUS watching” is something of a national past-time. Then the buzz dies out.
The power of the SCOTUS, and its essentially political role, was the subject of Professor Mark C. Miller’s presentation at the John Morton Center’s Current Issue Seminar on Monday, October 20. In an hour, and in the following Q & A, Professor Miller showed how the judicial and the political are intertwined in the United States. As Miller argued, the SCOTUS is part of a political dialogue, bringing legal reasoning to a sphere dominated by emotions and ideologies of politics. The arena where the politics of the SCOTUS is perhaps most strikingly obvious, and which Miller touched upon in the Q & A, is the President’s nomination for a vacant seat on the bench and especially the confirmation of the nominee by the Senate. As President Obama stated in a recent New Yorker interview with Jeffrey Toobin, the SCOTUS nomination process brings the buzz back. Even as the Republicans have stalled, blocked, and challenged judicial nominations to lower courts (circuit- and district-courts), the significance of the SCOTUS nomination process continues to be “big,” Obama explained. (Read the full interview here: http://www.newyorker.com/magazine/2014/10/27/obama-brief).
While always a political question–John Rutledge’s defeated nomination to the Chief Justice under George Washington, perhaps, being the first example–this process has during the last half-a-decade become a partisan affair. In many ways, this dates back to Lyndon B. Johnson’s nomination of Associate Justice Abe Fortas to succeed Earl Warren as the Chief Justice in 1968 (Fortas was a close friend and confidant of President Johnson and his nomination was met with great opposition mainly from Republicans in the Senate). A surprised Johnson used his political arm-twisting to secure an end to a Republican filibuster and then withdrew his nomination, essentially saving his friend’s honor from rejection by the Senate. As David Leonhardt of the New York Times has pointed out, this must be seen as one of the most consequential political blunders of modern times, as Johnson’s successor, Republican Richard Nixon ended up nominating the next Chief Justice, Warren Burger. Since then the Chief Justice has been nominated by Republican presidents; Ronald Reagan nominated William Rehnquist in 1986 and, following his death in 2005, George W. Bush nominated the current Chief Justice, John Roberts.
The great partisan fights over SCOTUS confirmations erupted in 1987 when President Reagan nominated Robert Bork to succeed Lewis Powell. Senator Edward Kennedy condemned Bork in harsh terms, presenting Bork’s United States as a country where “women would be forced into back-alley abortions, [and] blacks would sit at segregated lunch counters […].” (See a YouTube clip of the notorious bashing at https://www.youtube.com/watch?v=oNaasFvvFlE). Following intense political warfare, the Senate voted 58-42, mostly along party lines, against the confirmation of Bork. The seat eventually went to the current swing vote of the court, Anthony Kennedy.
The next big fight came with Thurgood Marshall’s retirement from the bench in 1991. George H. W. Bush decided to nominate Clarence Thomas to the seat; ironically Thomas was Bork’s successor on the D.C. Circuit Appellate Court. Thomas’s conservative record was met with fierce opposition especially from civil rights and feminist groups; Thomas not only succeeded the civil rights icon Marshall but was himself critical of both affirmative action and Roe v. Wade. After a testimony of sexual harassment by a former employee, Anita Hill, and a sharp questioning by the Senate, Thomas called the process a “high-tech lynching of uppity blacks.” In the end, Thomas was confirmed by a razor-thin margin of 52-48, but the confirmation process was severely damaged in the process.
Since the Thomas confirmation, SCOTUS nominees have been evasive during the Senate hearings and, with the exception of Samuel Alito, they have been confirmed with comfortable margins, even if the opposition is mostly along party lines. The ideological homogenization within the political parties in the United States over the last half-a-century is clearly seen in these confirmations. As Miller pointed out in his presentation, we are at an interesting point in the history of the SCOTUS, following the retirements of David Souter and John Paul Stevens in the summers of 2009 and 2010 respectively, in which the justices appointed by Republican presidents generally vote conservatively, while the justices nominated by Democrats vote liberally. This means that the Court has a slight, inherent five-to-four conservative majority, with Kennedy being the most unpredictable among the conservatives and thus the main swing vote. At the same time, this highlights the politics surrounding the SCOTUS that Miller’s talk focused on, as some of the older justices are reaching conventional retirement age: Ruth Bader Ginsburg is 81 years old, Antonin Scalia and Kennedy are both 78, and Stephen Breyer is 76. Some commentators have even taken the liberty to call for Ginsburg’s retirement to secure a fellow democrat the opportunity to appoint her successor. Ginsburg snapped back in a recent interview in Elle saying that Obama would not get an appropriate successor confirmed in the current political climate anyway. The judicial is indeed intrinsically political.
Text: Oscar Winberg, Ph.D. Candidate, Department of History, Åbo Akademi University