16 November 22
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The conservative movement’s decades-long pursuit of the judiciary is now paying off.
What happened at the Capitol on that January day was an attempted coup. What happened at the Supreme Court in June 2022 was a power grab of a different sort, driving the law far to the right in service of an agenda that most Americans don’t share.
June 2022 caught many Americans by surprise, but it shouldn’t have. The majority votes that erased the right to abortion, that put a constitutional stranglehold on states’ and cities’ efforts to keep guns off the streets, that further tightened religion’s grip on civil society, and that cast an ominous shadow over the policy-making apparatus of the modern federal government were the products of a project that goes back decades, one that unfolded in the full view of anyone who bothered to watch.
The decisions that term were the culmination of the single-minded pursuit of a goal that united cultural conservatives, deregulatory free marketeers, anti-abortion zealots, affirmative-action opponents, and all the other disparate elements of the political right in one common aspiration: the capture of the Supreme Court. That aim made perfect sense. Although in theory many of the objectives sought by this coalition of convenience should have been achievable through politics, popular will stood in the way. Efforts to overturn Roe v. Wade by amending the Constitution had failed spectacularly; public support for the right to abortion had, in fact, increased immediately following the Court’s 1973 ruling (and has increased even more now, following Roe’s overturning in Dobbs v. Jackson Women’s Health Organization). There was little that conservatives could do to make their agenda more appealing at the ballot box. That meant getting the Court was not simply the obvious choice; it was the only choice.
This was a goal that animated the conservative movement, first in defeat and then in triumph. Triumph arrived four months into the Trump administration, when the Senate confirmed Neil Gorsuch to the Supreme Court vacancy that by previously unquestioned norms had been President Barack Obama’s to fill. A phrase began to make its way around Washington in that early Trump period, shared among mainstream Republicans who were growing anxious about the chaos emanating from the White House. “But we got Gorsuch,” they said to one another, sometimes shortening the phrase to a kind of code: “But Gorsuch.” It served as a reminder that although the new president was making them nervous, Senator Mitch McConnell’s strategy had kept the real prize in safe hands.
Bringing the country to June 2022 took more than Gorsuch, of course. It required Justice Anthony Kennedy’s replacement by Brett Kavanaugh in 2018 and Amy Coney Barrett’s confirmation to Justice Ruth Bader Ginsburg’s seat on the eve of the 2020 election—another norm-shattering McConnell feat. But although getting Gorsuch wasn’t the end, neither was it the beginning.
On July 1, 1987, President Ronald Reagan nominated Robert Bork to the Supreme Court. The man Bork was named to replace, Lewis F. Powell Jr., was the “swing” justice of his time, the one whose vote often made the difference. A conservative southerner named to the Court by Richard Nixon, Powell had nonetheless provided a fifth vote to uphold affirmative action in the Bakke case in 1978 and remained a strong supporter of the right to abortion even as the Court was by then drifting away from Roe v. Wade.
Bork, a former law professor and a prominent conservative intellectual, had famously opposed the Civil Rights Act of 1964 and denounced the Court’s recognition of a right to privacy as illegitimate. As Powell’s replacement, he would have been in a position to transform the constitutional landscape. The Republican Party had lost the Senate in the 1986 midterm elections and the Reagan administration, beset by the Iran-Contra scandal, was running out of time to accomplish its domestic goals. With this nomination, major policy areas hung in the balance: civil rights; reproductive rights, including abortion; and fundamental questions of how to interpret the Constitution.
How a Supreme Court seat could bestow such power on an individual occupant rests on a yet deeper question: How did the Supreme Court itself acquire so much power over the lives of Americans?
The answer is, to a surprising degree, a 20th-century story. It wasn’t until 1925 that Congress gave the Court the power to select the cases it wanted to decide instead of simply resolving disputes as they happened to come along. Before then, as remains true today in the federal circuit courts of appeals, the justices didn’t control their own docket. The power to choose—a power that Congress expanded further, to near total, in the mid-1980s—transformed the Court from a solver of disputes between parties to a shaper not only of its own agenda but in many ways of the country’s as well. It became a law-giver rather than a dispute-solver.
Decades later, the Court emerged from the crisis of the New Deal with more power than ever before, and reached a tacit understanding with the American public: You give us all this great power, and in return we give you predictability, stability, and, ultimately, what you want.
A Court with Justice Robert Bork would be poised to break that promise.
The confirmation battle that consumed the summer and fall of 1987 was so titanic that it is often wrongly remembered as a one-off, an event in American political history that began and ended with a single overreaching Supreme Court nomination. But conservatives’ effort to recapture the Court had begun earlier, with Richard Nixon, who ran against the Warren Court and filled four Supreme Court vacancies. His most conservative nominee, William Rehnquist, survived a heated confirmation battle of his own in 1986 when Reagan named him chief justice. The sight of Rehnquist in the Court’s center chair fueled Democrats’ determination to block Bork.
The confirmation hearing, presided over by then-Senator Joe Biden, the Judiciary Committee chair, lasted a week as “Stop Bork” ads filled the airwaves. The country had never seen anything like it. Bork made clear his disdain for the senators and seemed to revel in his opponents’ effort to define him as “out of the mainstream.” The nomination went down to bipartisan defeat, receiving only 42 votes in favor. Anthony Kennedy’s eventual confirmation to the seat by a vote of 97 to zero reflected both the Senate’s exhaustion and its relief at the calming contrast the new nominee presented. Bork’s rigid originalism was not to Kennedy’s taste. Rather, the Constitution’s Framers had “made a covenant with the future,” Kennedy said during his hearing, meaning that constitutional interpretation was not to be bound by the views of the 18th century. Kennedy, not Bork, defined the mainstream. Jubilant progressives felt safe in regarding the Bork battle as over and in proclaiming that they had won.
Indeed, for the next 30 years, Kennedy’s vote was often essential to holding back the forces of reaction and to moving the law forward. He was one of the five justices who reaffirmed the by-then-embattled right to abortion in Planned Parenthood v. Casey in 1992. (All five justices in the Casey majority were Republican appointees, a measure of how the world has changed since then.) He wrote the series of LGBTQ-rights majority opinions leading up to and including Obergefell v. Hodges, the 2015 decision that recognized a constitutional right to same-sex marriage. An often-quoted quip by a prominent Supreme Court practitioner and blogger, Tom Goldstein, attested to Kennedy’s pivotal role: “It’s Justice Kennedy’s world, and we just live in it.” A 2012 Time magazine cover declared Kennedy “The Decider.”
It might have been Kennedy’s world, but it wasn’t the world Reagan conservatives had envisioned or to which they and their spiritual—and literal—heirs ever acquiesced. This was hardly surprising: Bork’s opponents may have fooled themselves into thinking that by defeating the man, they had defeated the idea of reframing the constitutional narrative. But the Bork battle just went underground, to be carried on not only by its grizzled veterans (Bork died in 2012 at 85) but by a generation of activists barely old enough to remember the initial round. Leonard Leo, the mastermind behind the Federalist Society and engineer of its grip on Republican judicial selections, graduated from college a month before Bork’s nomination. Carrie Severino, the head of the Judicial Crisis Network (formally the Concord Fund), a major recipient and dispenser of right-wing dark money that spent millions in support of Amy Coney Barrett’s confirmation, was in elementary school at the time.
Presidents pick Supreme Court nominees for many reasons. Ronald Reagan chose Sandra Day O’Connor as his first nominee to fulfill a campaign pledge to name a woman. As a candidate, Joe Biden had promised to name a Black woman, and he chose Ketanji Brown Jackson. Clearly, ideological compatibility matters. But the justices who voted to overturn the right to abortion reflected something more particular: They were chosen for that specific task. Reagan ran in 1980 on a Republican Party platform that pledged to “work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life,” and every Republican presidential candidate since then has run on a similarly worded platform. (The only exception was Donald Trump’s reelection campaign in 2020, when the Republican National Convention adopted no platform, the party’s only platform being Trump himself. During the 2016 campaign, Trump said that if he got the chance to make Supreme Court appointments, Roe would be overturned “automatically.”) Of the seven justices appointed by Republican presidents since Reagan, only David Souter, named by President George H. W. Bush, failed to deliver; Souter, who retired in 2009, was part of the five-justice Casey majority. By contrast, Bush’s other nominee, Clarence Thomas, now the Court’s longest-serving member, has proved a banner-waving success. Not only has he spent his three decades on the Court in pursuit of Roe’s overruling, but his concurring opinion in Dobbs added revisiting the Court’s precedents on same-sex marriage and even on birth control to the Court’s to-do list.
Samuel Alito, a nominee of the second President Bush, is also a success by these standards, predictably so. His confirmation hearing brought to light his 1985 application for a position in the Reagan Justice Department. “I personally believe very strongly,” the ambitious young job-seeker wrote, that “the Constitution does not protect a right to an abortion.” Chief Justice John Roberts, President George W. Bush’s other appointment, did not join Alito’s opinion in Dobbs. Roberts would have gutted Roe and Casey without overturning them explicitly. Add the Trump three to Thomas, Roberts, and Alito—all six, not by coincidence, raised in the Catholic Church, a convenient proxy for the “Will you promise to overturn Roe?” question no president could ask directly—and we have the supermajority that is now redefining the constitutional landscape, and not to Americans’ liking: Polls conducted while Dobbs was pending showed that Americans wanted to retain a right to abortion by a margin of nearly two to one. And of course the mid-term election more than bore that out. The right to abortion prevailed in all five states where the question explicitly was on the ballot, and exit polls showed that Dobbs was a boon to Democrats throughout the country.
At least one justice has openly expressed her concern. In a notable series of pointed remarks since mid-summer, Justice Elena Kagan has sounded an alarm. “If over time the Court loses all connection with the public and the public sentiment, that is a dangerous thing for democracy,” she said at a conference of federal judges in Montana. Kagan, a dissenter in Dobbs, did not explicitly mention the decision, but the reference was unmistakable. Scholars agree, warning that the gulf Dobbs opened between the public and the Court, and the majority’s blatant disregard of public sentiment, presents a serious threat to the Court’s legitimacy. “Indeed, the Dobbs decision may be the most legitimacy-threatening decision since the 1930s,” James L. Gibson, a political scientist at Washington University in St. Louis and a prominent scholar of the Court’s relationship to the public, wrote in an unpublished paper he posted on an academic website.
Perhaps this is what’s behind the caution Roberts displayed in refusing to join Alito’s majority. But Alito wore his disregard for the consequences of the Court’s action like a badge of honor, capping his opinion with words both arrogant and disingenuous. “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey,” he wrote in the penultimate paragraph. “And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”
The backlash was predictable. The current Court is “sharply to the right of public opinion,” according to a 10-year study recently published by the National Academy of Sciences. A Gallup poll from July showed a startling polarization following Dobbs. Although Republicans and Democrats had been roughly aligned in their views of the Court as recently as August 2020, with at least two-thirds of both groups indicating approval, Republican confidence in the Court soared 29 percentage points, to 74 percent, while Democratic approval plunged 23 points, to 13 percent—the lowest rating Gallup has ever measured. The partisan gap is the biggest on record.
A Pew Research Center poll in August revealed an intriguing generation gap in attitudes toward the Court. Across all demographic categories—sex, race, education—the single biggest predictor of a negative opinion was youth. Sixty-three percent of those ages 18 to 29 held an unfavorable view of the Court, while most of those ages 50 and older retained a positive opinion. Although the Pew researchers did not offer an explanation for this result, it could be that the memory of the Court sitting benignly above the political fray still carries weight with older Americans; lacking such a memory, a cynical younger generation knows only what it sees.
Alito may not agree or care, but the depth of disenchantment revealed in these recent polls represents a crisis for the Supreme Court. Chief Justice Roberts knows this, certainly, but his clumsy effort to address the problem, in remarks to a conference of federal judges in September, has if anything underscored the Court’s disconnection from the world it is refashioning. “Simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the Court,” the chief justice told the judges.
The comment had a puzzling emphasis. People aren’t criticizing the Court’s legitimacy; they are criticizing the Court’s behavior—the behavior that has led to a loss of legitimacy. The connection is causal, as Justice Kagan observed in remarks at Temple Emanu-El in New York in September. Judges, she said, “undermine their legitimacy when they don’t act so much like courts and when they don’t do things that are recognizably law, and when they instead stray into places where it looks like they’re an extension of the political process, or where they’re imposing their own personal preferences.”
Roberts was also wrong in a more fundamental sense. It’s not simply that the public is unhappy with the Court’s decisions. That’s what the polls show, but something deeper is going on that eludes even a well-crafted survey, something that may be the most important of all. It is a growing sense that in its actions in the past term, the current majority is abusing its power. It has broken the Court’s connection with the American public, reneging on the tacit deal the Court made decades earlier.
The justices took up the case that became Dobbs because a majority was determined to change the law of abortion for the whole country, come what may. The Court has great power, but it seems to have lost any sense of its great responsibility.
What happens if the country decides that the Court is deploying its power irresponsibly, even illegitimately? There is no modern template for such a scenario. That’s why the crisis for the Court is also a crisis for political science about the Court, a fact that would be of merely professional concern were it not so illuminating of the full dimension of what has occurred.
For more than half a century, a key text for scholars on the relationship between the Supreme Court and the public has been an article by the Yale political scientist Robert Dahl titled “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker.” In this short article (only 17 pages) published in 1957 at the height of concern over the Warren Court’s activism on civil rights and criminal justice, Dahl pointed out that the Court tended over time to align itself with the national consensus on major issues. The Court “operates to confer legitimacy,” he argued, “not simply on the particular and parochial policies of the dominant political alliance, but upon the basic patterns of behavior required for the operation of a democracy.”
Building on Dahl’s work, modern scholars have emphasized the “diffuse legitimacy” that protects the Court even when many people disagree with its decisions, and recent experience seems to bear this out. Polling has indicated that even Bush v. Gore, the much-disputed decision that resolved the 2000 presidential election, did not do lasting damage to the Court. Gibson, the Washington University professor, is a prominent exponent of the widely accepted “positivity theory,” which holds that people tend to accept Supreme Court decisions with which they disagree, “because those decisions arrive enveloped in the symbols of judicial authority,” as Gibson puts it in his new article.
But this time is different, Gibson writes. Dobbs has punctured the “diffuse support.” His article has the tone of a sad mea culpa. “In general, virtually all the empirical evidence I adduce in this paper runs contrary to existing research on the breadth and depth of the Court’s institutional legitimacy.” Noting that he and his colleagues “have long argued that Supreme Court legitimacy is obdurate, difficult indeed to change in the short-term,” he now concludes that in at least some circumstances, he and the others “may be wrong.”
It’s not that the political scientists have been negligent all these years. It’s that a new reality has overtaken the old assumptions. Dahl’s assurance that the Court would never stray too far from the public mood was based in large part on his observation that with an average two Supreme Court appointments in a presidential term, the Court would reflect the temper of the times through a regular infusion of new justices. Judicial confirmation as a blood sport was not, in that simpler age, part of the calculus. President Dwight Eisenhower placed both Earl Warren and William Brennan on the Court as recess appointments to fill sudden vacancies, a maneuver that would have been unthinkable for President Obama to try with Merrick Garland after Justice Antonin Scalia’s death in February 2016. (Brennan’s appointment came less than a month before the 1956 presidential election. Both he and Warren sat on the Court for months before being confirmed by the Senate once the president got around to submitting their formal nominations.)
A political scientist would have been farsighted indeed to anticipate what happened to the Court from 2017 to 2020: that a president who lost the popular vote would manage to lock in a conservative supermajority with three appointments, all of them confirmed by the narrowest of margins—following the Republicans’ abolition of the filibuster for Supreme Court confirmations—by senators from states that collectively contain less than half the country’s population. No wonder, then, that theory no longer fits reality. Robert Dahl’s reliance on “the basic patterns of behavior required for the operation of a democracy” is of little use when the patterns have been shattered and democracy itself seems so fragile.
Given the problematic circumstances of its acquisition of power, the new supermajority might perhaps have shown a little humility, or at least diffidence, before driving the Court off a cliff. Not so many years ago, the Court knew how to stop short. Chief Justice Roberts’s predecessor, Rehnquist, offers an example. A conservative firebrand for much of his 33-year Supreme Court tenure, the justice whom liberals most loved to hate, he modulated his tone and reined in his ambitions late in his time as chief justice.
In a 2004 majority opinion, for example, Rehnquist called for “play in the joints” between the First Amendment’s two religion clauses, finding that neither the establishment clause nor the free-exercise clause provided the sole answer to the question of government subsidy of tuition for religious study. (The divinity student seeking the subsidy lost that case, but surely would have won it under the analysis Chief Justice Roberts used in another religious tuition case in June, in which “play in the joints” was consigned to history and the free-exercise clause scored a complete triumph.) In 2003, Rehnquist effectively called a halt to his “federalism revolution,” in which the Court had immunized state governments against having to follow important federal anti-discrimination laws when it came to their own employees. That free pass for the states ended, the Court declared, with the Family and Medical Leave Act, which Rehnquist deemed an important weapon against employment-based sex discrimination that Congress had the authority to make binding for state employers. Had the march of the state-immunity decisions continued unabated, Congress’s power to enforce the Fourteenth Amendment’s guarantee of equal protection might well have been severely curtailed. For Rehnquist, that was a step too far.
The one justice who remains from the Rehnquist Court, Clarence Thomas, dissented in that case. He would have gone the distance then, and presumably still would. Might any others in today’s conservative majority refrain, for example, from dismantling what remains of the Voting Rights Act, in the Alabama case the Court heard in October? Or decide against embracing the newly minted “independent state legislature” theory, in a case to be argued in December, that would disable state supreme courts from reviewing state legislatures’ rules for conducting federal elections, including how presidential electors are chosen?
These are cases with huge potential to further weaken the support structures of a fragile democracy. One would require overturning a precedent that has guided application of the Voting Rights Act for nearly 40 years by ensuring that when it comes to redistricting, a minority community of sufficient size, cohesion, and compactness must receive a fair opportunity to elect representatives of its choice. The other would take the Court into completely new territory—pure politics without a precedent in sight.
The justices who make up the majority have nothing in their way—that is the nature of being a supermajority in control of the most powerful Court in the world. These justices—or, more accurately, the forces that propelled them to the Court—have been waiting a long time for this moment. If the country decides that it’s seen enough overreach from the Court, the individual justices, insulated by life tenure from the consequences of playing politics, won’t pay the price. The Supreme Court itself will, and the price may be incalculable.
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