The political history of the Supreme Court

I'm not a great student of American history. The last American history course I took was, embarrassingly, in high school. There is one surprising advantage to not having studied a lot of American history--I haven't formed a lot of prejudices that are set in stone. I have a superficial knowledge, but I know it's only superficial, so I'm ready to question all those standard theories that float around.

So, what is the real history of the Supreme Court? I started wondering because of suggestions (among liberals) that the GOP might not confirm a Supreme Court nominee for the rest of Obama's term. Looking back at information about the Supreme Court (mostly from Wikipedia), I saw a number of interesting trends.

FDR through Nixon

Supreme court nominees used to be much closer to the president and much more political. For example, Hugo Black was a senator. Franklin Roosevelt (FDR) tapped him because he was young, from the south, and a strong legislative supporter. Luckily he was also a great fit for the job. He was extremely interested in constitutional questions and developed "textualism," a conservative school of thought on how to interpret the Constitution. This is almost all news to me, and quite fascinating.

Another interesting factoid is that president always tried to push the court toward their political side. FDR did it big time because his first New Deal programs were struck down by a conservative court. FDR made a lot of appointments to the court over his 13 years as president, and he was successful in his goal. The court was fairly liberal due to his selections. Eisenhower wanted to reverse this trend, but his choices weren't so effective. He aimed for conservative (but presumably not Jim Crow conservative), but ended up with Earl Warren.

So even after Eisenhower, the court was fairly liberal. Kennedy and Johnson together appointed four judges, but two resigned after a few years. The balance on the court didn't move much because of their presidencies. Nixon, like Eisenhower, wanted a more conservative court yet didn't get what he hoped from his appointees except for his last appointee, William Rehnquist.

Reagan

By the time Reagan was president, the conservatives in the country were quite fed up with the liberal slant of the court. Per my memory, the biggest complaints were over abortion legalization, the end of school prayer, and limitations on evidence collection and police tactics. However, Reagan didn't give the conservatives what they wanted immediately. For the first vacancy, Reagan nominated the first woman on the court, Sandra Day O'Connor. I wonder how angry his conservative supporters were over that.

His next appointee, Antonin Scalia, probably pleased the conservatives mightily. For the next vacancy, Reagan went with the ultra-conservative Robert Bork. In doing this, Reagan ignored all the buzz that this was going too far. This is just speculation, but I'm guessing that in 1987 (the year of the nomination), Reagan was no longer fully in control of his decision-making. The choice backfired. Democrats were successful in painting Bork as too conservative. The replacement nominee, John Paul Stevens  Anthony Kennedy, was considerably less conservative, to the chagrin of the conservatives.

Reagan's legacy on the Supreme Court were two swing justices and only one solid conservative. The anger and disappointment of conservatives must have been huge. George H.W. Bush had two appointees--another mixed bag of one swing vote and one solid conservative. Clinton, following the established pattern, appointed two liberal-leaning justices.

21st Century - Fully Political

With George Bush II, the conservatives finally got more than lip service. Bush II appointed two solid conservatives. Obama has appointed two solid liberals. At this point, there is barely a swing vote on the Court. Occasionally Anthony Kennedy sides with the liberals, but generally there are five conservative votes.

What I learned in all this:

• Presidents have always tried to nudge the Court into their corner. 
• Conservative presidents have often failed to get conservative judgments out of their appointees. I wish I understood why this happened so often. 
• The pressure to appoint clearly conservative or clearly liberal justices has grown. Both sides dearly want to own the majority on the Court. This may indicate that the Court has become ever more important in political outcomes in the country.
• Professional experience as a judge became more important after Johnson and Nixon--due to some embarrassing nominees and appointees. This allowed the presidents to pretend that they were nominating someone neutral. However, this veneer of neutrality is a sham--nominees fulfill political goals. They aren't neutral legal arbiters, as most judges are supposed to be. 
• The sham is still active and seems to be demanded of both politicians and nominees, so it will continue.

Image: cagle.com

We made the wrong choice

This is probably true much more often than we admit. I won't go into all the personal mistaken choices because their consequences are limited. But in politics, it's definitely worth talking about.

A slogan for this election is that IT'S THE MOST IMPORTANT ELECTION OF THIS GENERATION. (Note, there's now a lot of pushback against that idea, thank God.) When a lot of people were screaming that during the GOP primary, I considered the question seriously, and decided that the most important election of this generation was in 2000 (Bush vs. Gore). Unfortunately, we got the wrong one. I'll argue that with anyone, and the sane ones will be agreeing in about ... 2 minutes, or a lot less. As I don't want to waste my efforts on the insane ones, I don't have the argument very often.

So, we made the wrong choice in 2000. Actually, the popular vote favored Gore, but not enough to swing the electoral college in basically a 48%-to-48% tie.

Another wrong choice preceded that. The GOP establishment chose the wrong Bush brother. Jeb Bush was generally acknowledged to be the smarter and more serious one. But George Bush managed to block him out and sign up a lot of early supporters. Or perhaps I should give in to my speculation and say Karl Rove did these things.

(Side note: After Karen Hughes' statement that George Bush was intelligent, I withheld judgment for at least two years. Never in that time did I see signs of above-average intelligence from Geroge Bush. So when I say that he's not intelligent, or that he's an idiot, it's based on observation, not on bias. I'd trust him to deliver mail or teach high school or build web pages, but he wasn't smart enough to be POTUS.)

Why did we end up with the dumber Bush brother? Well, if you were a conservative businessman and you wanted someone malleable rather than independent, wouldn't you choose George over Jeb? Now, I live about as far from Texas as an American can, so I have no idea who are the powers behind the Texas GOP, but there's a track record there of not-so-bright governors, as Rick Perry reminded us. Someone, maybe more than one, maybe a group decision, chose George Bush as Republican nominee in 2000. Whoever you are, THANKS A LOT FOR SUCH A SHITTY CHOICE.

Photo: timesunion.com

Extra: The occasion for this post is Jeb Bush's announcement that he'd accept 10-1 spending cuts to tax increases. What a RINO.