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How the Republican Party Took Over the Supreme Court

The 50-year effort to advance a conservative legal agenda

Illustration by Delcan & Company

For 230 years, the Supreme Court of the United States has been a political institution, but only rarely a partisan one. More than a century ago, the court controversially concluded that the Constitution required freedom of contract between employers and employees. The bare 5–4 majority that struck down a maximum-hours law for bakery workers in the infamous 1905 case of Lochner v. New York consisted of two justices nominated by Democrats and three nominated by Republicans. A Democrat dissented alongside three Republicans.


SUPREME AMBITION: BRETT KAVANAUGH AND THE CONSERVATIVE TAKEOVER by Ruth Marcus

Simon & Schuster, 496 pp., $28.00
SUPREME INEQUALITY: THE SUPREME COURT’S FIFTY-YEAR BATTLE FOR A MORE UNJUST AMERICA by Adam Cohen

Penguin Press, 448 pp., $30.00




The era of Lochner was no aberration. The five-justice majority that consistently voted to strike down New Deal legislation three decades later included two justices who had been Democratic Party insiders, one of whom served as Woodrow Wilson’s first attorney general. The liberal Warren court of the 1950s and 1960s featured justices appointed by Republican President Dwight Eisenhower, including Chief Justice Earl Warren himself and the liberal icon William J. Brennan. Warren and Brennan voted with Democratic appointees like Arthur Goldberg, Abe Fortas, and Thurgood Marshall. Kennedy appointee Byron White often voted with more conservative Republican justices like John Marshall Harlan and Potter Stewart. So did Democratic appointee Justice Felix Frankfurter, who had been a member of Franklin Roosevelt’s Brains Trust in the New Deal.


In the nineteenth century, justices appointed by Whigs and by Democrats appeared on both sides of the momentous proslavery Dred Scott decision. Even the early–Reconstruction-era Supreme Court, which was dominated by justices appointed by Republican presidents during and after the Civil War, produced scrambled coalitions. The Slaughter-House Cases decision of 1873, adopting a narrow and crabbed reading of the Reconstruction Amendments, featured four Republican-appointed justices voting along with a justice appointed by Democratic President James Buchanan.
 

Today, by contrast, coalitions on the court are arranged almost exclusively along party lines. In a 2016 study, legal scholar Neal Devins and political scientist Lawrence Baum showed a sharp increase in important decisions characterized by a strictly partisan split after the confirmation of Democratic appointee Elena Kagan to what had been Republican appointee Justice John Paul Stevens’s seat. We are now at least one decade into a nearly unprecedented experiment in partisan judging at the highest court in the land. Our legal and political systems have barely begun to process what that means.
 


Adam Cohen’s new book, Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America, contends that the last half-century of the court has not been the story of a partisan divide so much as a rightward ideological turn. The “past half century,” he contends, has witnessed a shift in the court “away from its onetime commitment to the middle class and the poor, in favor of the wealthy and the powerful.” In Cohen’s bold telling, the court has “sided with the rich and powerful against the poor and the weak” in “virtually every area of the law” since the Nixon administration.


In Cohen’s account, from 1954 to 1969, the Supreme Court of Earl Warren advanced a powerful agenda of egalitarian freedom, one that promised to level America’s unfair playing field, integrate the nation’s schools, and level school funding inequalities. The liberal justices of the Warren court era, Cohen contends, helped combat incarceration, stood up to the Jim Crow South, guaranteed women access to reproductive care (eventually including abortions), and came close to establishing a constitutional right to welfare for the poor. This era came to an end, however, with a confirmation battle.


In the summer of 1968, the lame-duck Lyndon Johnson nominated Associate Justice Abe Fortas to succeed Earl Warren as chief justice. Fortas was a reliable liberal vote and a champion for poor litigants before the court. He had represented Clarence Earl Gideon in 1963 in the case that gave indigent criminal defendants the right to a publicly funded lawyer. Controversy arose, however, over Fortas’s cozy political relationship with the president and over payments Fortas received from shadowy corporate interests for a seminar he taught at American University. Fortas withdrew from consideration. A year later, when further damaging information came out about a secret financial arrangement with a wealthy businessman convicted of stock fraud, Fortas resigned from the court altogether.


The confirmation of Chief Justice Warren Burger in Fortas’s place in 1969, followed by three further Nixon appointees, fundamentally altered the role of the court and began to roll back the progress made at mid-century. As Cohen sees it, the court has ever since been the “Nixon court.” The justices on this new Republican-dominated court have blessed law enforcement efforts to ratchet up the punishment of criminals, thereby driving mass incarceration. The court has limited the rights of the poor to welfare payments and blessed inequalities in public school funding. In campaign finance, the justices have cheered on efforts by wealthy individuals and firms to use their money to dominate election environments, even while making it more difficult for those without such riches to participate in the political process. Workers have seen their rights diminished by a series of decisions upholding arbitration agreements and rejecting class-action treatment for cases alleging widespread harms. Consumers have watched as the court very nearly abolished some of their rights by upholding waivers of the right to bring class actions altogether.


Even as the court’s conservative justices have decried the novelty of the kinds of rights for which the Warren court became so well-known, they have at the same time invented new rights for the wealthy nearly out of whole cloth. Due-process limits on punitive damages, First Amendment rights to spend money to influence politics, and free-speech rights to disregard consumer regulations are only three of the dubiously rooted rights characteristic of our time. In all, Cohen charges the court with complicity in “a massive transfer of wealth to corporations, corporate executives, and share-holders” from “ordinary Americans … as consumers, employees, and innocent bystanders.”



Cohen’s account emphasizes the court’s inegalitarian streak. But the story of the court in the last half-century is more about partisanship than inequality. Cohen notes, for example, an “unmistakable partisan slant to the Court’s major election law rulings since 2000.” In 2019, the court upheld partisan gerrymandering arrangements, mostly to the benefit of the demographically challenged Republican Party. In 2013, the court struck down a critical part of the Voting Rights Act, which in turn unleashed a new cycle of exclusionary voter ID laws and purges of voters from the state election rolls. The court has specifically upheld voter ID laws (in 2008) and election roll purges (in 2018), both of which are widely understood to work to the Republican Party’s advantage.


Viewed from this partisan perspective, much of the court’s recent history falls into place. Janus v. American Federation of State, County, and Municipal Employees, Council 31, decided in 2018, disrupted the collection of public employee union membership dues. A novel First Amendment theory advanced by Justice Samuel Alito concluded that mandatory employee dues violated the First Amendment rights of state employees. The theory promises to hamstring a key Democratic Party constituency and prompted Justice Elena Kagan (an Obama appointee) to complain that the court was “weaponizing the First Amendment” for political purposes.


Republican Party constituencies, by contrast, have been big winners. Beginning in District of Columbia v. Heller, decided in 2008, the court’s conservative justices helped reinforce the loyalty of single-issue gun-rights voters for the Republican Party. Since the beginnings of the Nixon court, the votes of Republican appointees to the court have aligned with emerging Republican Party positions on law-and-order policing, the retrenchment of welfare policies, opposition to affirmative action, resistance to labor unions, skepticism of litigation, and rolling back voting rights. Parts of the court’s jurisprudence have even supported the Republican Party in unexpected ways: For nearly 50 years, Roe v. Wade (though increasingly tattered) has allowed the Republican Party to rail against abortion rights, safe in the knowledge that its unpopular position is unattainable. If Roe is overturned, the Republican coalition may be harder to keep together.


And when the Republican Party splits over some issue, as it does today in the area of criminal justice policy, the partisan alignments on the court scramble accordingly. The late Justice Scalia, for example, sometimes joined his liberal colleagues in opposition to what he called the panopticon state. His replacement, Neil Gorsuch, is widely expected to do the same.


The case that best symbolizes 50 years of adjudication is not one of the poverty cases from the 1960s and 1970s on which Cohen focuses his attention, but rather Bush v. Gore, in which the court halted the vote recount in Florida during the disputed presidential election of 2000 and swung the election to Republican candidate George W. Bush. As Cohen notes, the decision’s aggressive holding was out of step with positions Republican-appointed justices had adopted for a generation. The majority insisted weakly that its holding was “limited to the present circumstances” and not relevant to the decision of other cases. In an irony not lost on many, the partisan logic of the Bush v. Gore case holds the master code to a half-century of the court’s history.
 


The confirmation of Associate Justice Brett Kavanaugh to the court in the fall of 2018 was the culmination of today’s partisan court. Washington Post journalist Ruth Marcus’s book Supreme Ambition: Brett Kavanaugh and the Conservative Takeover offers a deeply reported, hour-by-hour account of the partisan battle over Kavanaugh’s nomination and the fallout, using her Washington sources to weave a political page-turner in the tradition of Bob Woodward’s The Brethren. But more than a story about the court, her book is also about what a career in law did to Kavanaugh—how at each stage of advancement, the institutions he passed through made him an inexorably more partisan figure.


Unlike some of the candidates vying for his seat in 2018, Kavanaugh did not start out as an ideological warrior in the mode of Robert Bork, or even Neil Gorsuch or Clarence Thomas. In law school and in the clerkships that followed, including a clerkship on the Supreme Court with Associate Justice Anthony Kennedy, Kav­anaugh found ways to be politically ecumenical and open to competing views. But circumstances have a way of remaking people. Party polarization produces its own feedback loops. When Kavanaugh joined Kenneth Starr’s Ahab-like pursuit of the Clintons in 1994, he was a super-competent lawyer-soldier. But by the internal metrics of the Starr team echo chamber, competence meant the feverish pursuit of ever more implausible scenarios. Entering with only lukewarm conservative credentials, Kavanaugh came out a committed partisan.


Kavanaugh went on from the Clinton investigation to work as a GOP lawyer in the trenches in the Florida election recount dispute in 2000. Victorious there, he took a position in the White House Counsel’s Office under George W. Bush, where he gave special attention to the crucial party task of filling the courts with Republican nominees. When he married a longtime Bush aide, Kavanaugh entered the Bush family’s inner circle. He became staff secretary to the president in 2003. And that summer the president nominated him to serve as a judge on the Federal Court of Appeals for the District of Columbia Circuit, often thought of as the second most powerful court in the country. As a judge, Kavanaugh did not disappoint in conservative legal circles. Instead, on the most hotly political issues, he displayed an uncanny sense for taking positions designed to appeal to the GOP base while simultaneously triangulating against political opposition from liberals.


Three equally indispensable things propelled Judge Kavanaugh to the top of President Trump’s Federalist Society-vetted list in 2018. The first was Kavanaugh’s all-out campaign for the position. He had doggedly maneuvered for the role for at least two decades. The second was Kavanaugh’s critiques of the regulatory state, which the GOP donor class found deeply appealing. Third was Don McGahn, Trump’s White House counsel. In Marcus’s rendition, McGahn was a party loyalist like Kavanaugh, who made filling the courts with Republican appointees his first priority. McGahn aimed to cement his legacy in the White House by securing the Supreme Court post for Kavanaugh, at least in part because Kavanaugh was a beloved former clerk to Justice Kennedy. McGahn reasoned that Kennedy might be more likely to resign if Kavanaugh was likely to be his replacement.



In Marcus’s story, the most striking thing about the confirmation process that ensued was its ever-escalating partisan logic. Chuck Schumer, the Senate minority leader, announced instantly, “I’m going to fight this nomination with everything I’ve got.” Democrats complained that Kavanaugh had been a hatchet man for George W. Bush, and that he had misled the Senate at his confirmation to serve on the D.C. Circuit. They charged that Republicans were denying them full access to documents from Kavanaugh’s years in the Bush White House. But the Democrats had, to begin with, very few tools with which to fight the nomination. The Republicans had a narrow but decisive two-vote advantage in the Senate, and Majority Leader Mitch McConnell had made judicial confirmations a priority. (“The thing that will last the longest is the courts,” he said.) As one Trump critic confessed, Schumer and company seemed to have brought “a FOIA request to a knife fight.”


Meanwhile, another story line was unfolding. On July 5, four days before Kavanaugh’s appointment, Christine Blasey Ford reached out to her Democratic congresswoman, Anna Eshoo, and to a Washington Post tip line. Ford said that Brett Kavanaugh had sexually assaulted her more than three decades before, while the two were in high school. Three weeks later, at Eshoo’s suggestion, Ford shared her story with Senator Dianne Feinstein, the ranking Democrat on the Judiciary Committee. Feinstein promised to keep the story confidential. For the next six weeks, rumors of Ford’s story circulated without being disclosed to Judiciary Committee staff or the FBI for formal investigation. Word of some kind of sex assault allegation soon reached Schumer and Nancy Pelosi. Inevitably, the story hit the internet on September 12, on the eve of the crucial Judiciary Committee vote.


Marcus reserves the sharpest criticism in the book for Feinstein. If she’d acted sooner, perhaps the committee could have found a more constructive way to deal with Ford’s story, one less wracked by mutual suspicion than the hearing that happened. It looked to all the world, Marcus observes, as if the Democrats had held the story back, springing it only when other efforts to prevent Kavanaugh’s confirmation had failed. Intentionally or otherwise, Feinstein’s decision to hold on to Ford’s story ensured Kavanaugh’s success.


The eleventh-hour hearing that followed news of Ford’s accusation galvanized Republican insiders. Many hard-core Republican operatives had opposed Kavanaugh’s nomination for fear that his history of respect for nonpartisan professional values would make him a “squish” instead of a hard-line conservative. Now they fell into line and became the would-be justice’s most dogged defenders. Revelations about further sex assault allegations hardened the resolve of the Kavanaugh camp. The conservative public relations firm behind the Swift Boat Veterans for Truth campaign against John Kerry in the 2004 presidential election sprang into action to produce an elaborate mistaken-identity theory that defamed an innocent third party on the basis of residential blueprints taken from the popular real estate website Zillow.


Kavanaugh played to the mood of partisan outrage on the right. In his ferocious public response at a second hearing before the Judiciary Committee, a “white-hot Kavanaugh” condemned the sex assault story as a Democratic effort to derail his confirmation. Democrats, he charged, aimed to exact revenge on behalf of the Clintons for his work on the Whitewater investigation two decades before. Kavanaugh spoke of “left-wing dark money.” As Marcus puts it, he made a “pivot to partisanship”—and it saved his nomination. It united disparate wings of the Republican Party and mobilized the base of the party to support him. Kavanaugh’s fury, one well-placed observer told Marcus, was “like catnip” for the party’s core constituencies.


Advocacy groups on the left arguably made matters worse when they raised funds to be deployed against moderate Republican Senator Susan Collins of Maine if she voted yes on Kavanaugh. Collins concluded that a vote against the nominee would seem like weakness in the face of blackmail. When the Republican Party countered with offers of fundraising support from wealthy Republican donor Sheldon Adelson, the die was cast. Collins’s vote for Kavanaugh secured his confirmation.



Marcus ends her book by wondering whether the neutral ideal of the court can survive the bruising battle of Kavanaugh’s confirmation process. Cohen’s history asks how such an ideal has lasted as long as it has. Yet neither book quite satisfactorily explains why the court has been so susceptible to polarization—or why Republicans have benefited from it so disproportionately.


Cohen contends that simple political willpower explains the court’s rightward turn. Republicans, he writes, “simply seem to have wanted it more,” making the court “a focus of their politics in a way Democrats have not.” A better explanation is not that GOP has tried harder, but that particular patterns of partisan coalition-building and mobilization over the past half-century have produced a world in which the court is able to play a special role for the GOP.


We should expect the court to be more useful in classically conservative political projects for basic structural reasons. The justices can make it exceedingly hard for the other branches to enact laws that set in motion the machinery of the state. As far back as the 1890s, for example, the court singlehandedly held back a federal income tax for two decades. In the coming years, the court may return to the business of reviewing tax policy if it strikes down a wealth tax. By contrast, almost no one thinks that the court will ever review the constitutionality of reducing or repealing a tax. The asymmetry is telling. The Supreme Court can effectively obstruct the growth of government all by itself. But it has great difficulty initiating and sustaining governmental action, at least without powerful and mobilized allies in the other branches.


These limits on the court’s power mean that Cohen greatly overestimates the capacity that the Warren court had to remake the world for the better. Cohen describes the court as “an architect” of American social life, drawing up “blueprints for the nation.” Those blueprints, he contends, very nearly laid down a right to welfare for the poor and needy at the end of the 1960s and beginning of the 1970s. But the court would almost certainly not have been able to administer rights to welfare without the willing compliance of the political branches. Cohen sees the court as having been one vote away from ordering the equalization of funding to public schools in “all fifty states.” But such an order would have touched off myriad evasion efforts in state and local governments, just as Brown v. Board triggered decades of massive resistance to integration. The 25 state supreme courts that have issued equality mandates for school finance have not been able to eliminate unequal funding, and the justices of the U.S. Supreme Court would not have been able to do so either.


In Cohen’s telling, conservative decisions on criminal procedure greased the wheels for the mass incarceration state. But harsh sentencing laws like the Rockefeller Drug Laws and the onset of the war on crime preceded the court’s rollback of Warren court–era criminal procedure decisions. The court had little authority over things like sentencing statutes, mandatory minimum sentences, prosecutorial discretion, and police tactics. When Warren court justices made it more difficult to prosecute criminal defendants, the other branches of government could and did respond by ratcheting up sentences and increasing the size and aggressiveness of the police force. Liberal decisions like the famous Miranda case, requiring a statement of rights to those arrested, often made criminal prosecutions easier, not harder, by prompting suspects to talk. Scholars of mass incarceration spend little time on the court, because they know that it lacked not only the will but also the institutional capacity to stop the nationwide social and political crisis of criminal justice. In an era in which political constituencies on both sides of the aisle were pressing for more aggressive use of the criminal justice system, and in which the Congressional Black Caucus and the nation’s black mayors and prosecutors largely went along, it is implausible to see the court as leading rather than following.


The court has been at the center of a Republican Party mobilization that has been distinctively well-served by the particular kinds of authority the court wields. Republicans can accomplish more of their agenda and protect more of their power through the courts than Democrats can. It is not merely willpower or superior tactics that have led the Republican Party since Nixon to place such importance on the makeup of the court.



The great question for the coming years is whether a partisan court can survive in its current institutional form. The court has stood athwart a political party’s future only twice in American history. The first time occurred when the Dred Scott case in 1857 ruled unconstitutional the Republican Party’s promise to prohibit slavery in the territories. Three years later, Abraham Lincoln was elected after a campaign in which he had promised essentially to ignore the court’s ruling. When the same court threatened to obstruct the new president’s ability to win the Civil War, Lincoln and a Republican-controlled Congress expanded the court’s size to change the vote count. A few years later, when the court resisted continued military authority in the South, Republican congresses stripped its jurisdiction.


The second time came when the court struck down key pieces of the Democratic Party’s New Deal agenda. Franklin Roosevelt responded with a plan to pack the Supreme Court with new justices. Congress eventually rejected the plan. But the court began upholding New Deal legislation. The retirement of key justices soon thereafter allowed Roosevelt to remake the court without changing its size.


Would a future federal government controlled by the Democratic Party abide the now-80-year-old partisan consensus on the size and authority of the court? History gives us little reason to think so. But neither the Civil War court nor the New Deal court was organized around a single political party. The special genius—and the distinctive risk—of our partisan court is that, in cases ranging from partisan gerrymandering to the First Amendment to the Voting Rights Act, its decisions entrench its own partisan power. And in this respect, the Supreme Court of the United States is entering uncharted territory.