Striking Imbalance: The Conservative Long Game for the Courts

With the Supreme Court vacancy created by the death Friday of Justice Ruth Bader Ginsburg, the idea of any semblance of balance on the high court seems remote. However, as put forth in Adam Cohen’s latest book, Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America, this is hardly a sudden change. Rather, conservatives have been quietly racking up victories at the Supreme Court of the United States (SCOTUS) for five decades.

“The Supreme Court has played a critical role in building today’s America, in which income inequality is the largest it has been in nearly a century,” writes Cohen, who before becoming a journalist was a staff attorney in the New York office of the American Civil Liberties Union and from 2002 to 2010 served on the New York Times editorial board. The court’s decisions, he contends, “have lifted up those who are already high and brought down those who are low, creating hundreds of millions of winners and losers.”

Inequality is indeed a defining political issue of our time. The United States has the most inequitable distribution of wealth and income of any developed country. As a result of systemic racism, Black, Indigenous, and Hispanic or Latinx Americans are most frequently denied a decent standard of living. Cohen’s focus on inequality resulting from the Supreme Court’s conservative jurisprudence is therefore salient and important: SCOTUS rulings in favor of the richest 1 percent are legion, and Supreme Inequality covers them well.

Perhaps the more novel story Cohen tells is the history of the conservative battle to capture and control the US Supreme Court. With every presidential election, conservatives talk as if nominations to the court have been radically liberal, when in fact a majority of justices since Richard Nixon’s presidency have been conservative by any standard.

Cohen mentions the infamous 1971 memorandum, titled: “Attack on the American Free Enterprise System,” written by Lewis F. Powell not long before he accepted Nixon’s nomination to the Supreme Court. The memo launched a comprehensive conservative offensive to take over all the organs of the federal government and public policy debates. It has been the playbook of the Republican Party and its donors (e.g., the Koch brothers) ever since. The memo best sums up the context of the conservative revolution on the Supreme Court, where the strategy has been most successful: “Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic, and political change.”

Powell’s screed (unearthed and made public by Washington Post columnist Jack Anderson the year after Powell was confirmed) called for business to take back America from the so-called radicals. It focused on Ralph Nader and a few others as leaders of an advancing wave of socialism in the US. In terms of the court, conservatives essentially wanted nothing short of declaring the regulatory state of the Progressive Era and the New Deal unconstitutional. That effort is ongoing. It is and always has been a hardball political effort, summed up no better than Trump’s March 2018 tweet: “We … must ALWAYS hold the Supreme Court.” To contemplate how much farther Republicans might go in their tactics, imagine if the roles were reversed today, and a key conservative justice’s health was failing months before an election that looked promising for Republicans to take back the White House and Senate. I wonder what odds Cohen would put on the GOP considering asking the justice to have himself put into a medically induced coma until after Inauguration Day.

In contrast, progressives have regularly been slow to raise the fight over nominees to the court. As a result, the liberal era of the Supreme Court led by Chief Justice Earl Warren in the 1950s and ’60s (starting with 1954’s Brown v. Board of Education) is but a distant memory. What too few remember is that the demise of the Warren court was precipitated by a huge pre-election bungle on the part of the chief justice and Democratic President Lyndon Johnson. In 1968, Johnson’s decision not to run for a second full term worried Warren. In a strategic disaster, Warren announced his decision to resign in June. Johnson nominated Associate Justice Abe Fortas, whom he’d nominated to the Supreme Court in 1965, to replace Warren as chief justice before the end of Johnson’s presidential term of office. Republicans portrayed Fortas as a Johnson “crony,” and criticized his support for rulings on obscenity and the rights of criminal defendants. But the real problem was that Southern Democratic senators refused to support Fortas because he favored civil rights legislation. White supremacy thus reared its ugly head in the process. It didn’t help that Fortas was Jewish and also that he had accepted unusually large cash payments for speaking engagements compared to other justices. In the end, he was not confirmed as chief justice, and Johnson compounded the problem by not immediately submitting a new nominee for confirmation before his term ended.

After Hubert Humphrey lost the 1968 presidential election by 0.7 percent, Nixon nominated the conservative Warren Burger to succeed Chief Justice Earl Warren. Fortas, a strong liberal, ultimately resigned as an associate justice after continuing attacks from Republicans, which focused on paid consulting work for a nonprofit. While other justices did such work, the organization Fortas advised was subsequently revealed to be under criminal investigation. Despite breaking no ethics rule and being backed by public opinion and by a large Democratic majority in both houses of Congress, Fortas gave Nixon yet another seat on the court, which was filled by Harry Blackmun in May of 1970.

In September of 1971 longtime Associate Justices Hugo Black and John Marshall Harlan resigned due to failing health, allowing Nixon to nominate two more conservative justices—Lewis F. Powell and William Rehnquist—which he did on the same day, October 21, 1971. Some six weeks later, the Senate confirmed Powell over only one dissenting Democrat despite strong opposition from Black leaders, and Rehnquist a few days later. In total, Nixon’s intense focus on changing the makeup of the Warren court led to four appointments in three years.

Supreme Inequality, published in February of this year, before Ginsburg’s death created another opening on the Supreme Court, traces Republican influence from the Nixon days to the vacancy created by Antonin Scalia’s death in February of 2016. The refusal of the Republican-controlled Senate to consider President Barack Obama’s nomination of Merrick Garland gave Trump the opportunity to nominate Neil Gorsuch to the Supreme Court in early 2017.

“Fortas’ forced resignation and the Senate’s refusal to consider Garland were bookends on a five-decade war on the Court,” Cohen writes. “One disreputable move created a conservative majority and the other preserved it.” It is his contention that the reason conservatives have controlled the Supreme Court “uninterrupted since Nixon’s time, is that they simply seem to have wanted it more. Republicans have made the Court a focus of their politics in a way Democrats have not, and they have come to look on it with a sense of entitlement.”

Cohen argues that

In the aggregate, conservatives have done a much better job of handing their seats to justices who share their views than liberals have…. [A]ll six of the most conservative justices who left the Court since the mid-1960s were replaced by Republican presidents, while of the six most liberal justices, only one was replaced by a Democratic president.

And the moves to seat conservatives have been largely successful in advancing the substantive agenda of conservatives in many fields. “When the Nixon justices arrived,” Cohen notes, the court “drastically reversed course from its Warren-era liberalism in a wide array of areas, including employment law, education law, campaign finance law, corporate law, and criminal law.”

For example, in 1970, the court under Burger ruled in Goldberg v. Kelly that welfare benefits could not be terminated without due process. The decision was ultimately the culmination of rulings by the Warren court that were building toward perhaps the recognition of a constitutional right to basic economic support. Literally two weeks later, the court ruled in Dandridge v. Williams that the poor did not have a constitutional right to a minimum level of economic support from the government. Associate Justice Potter Stewart, who was in the majority in Goldberg, wrote the majority opinion in Dandridge. He went beyond the facts of the case to strike a stance for the court that showed new hostility to those receiving welfare: “the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court.”

Senate Democrats did score a victory in keeping libertarian Robert Bork off the Supreme Court in 1987, but they fell down on the job in approving the nomination of Clarence Thomas in 1991. Overall, while progressives have been fighting over court nominees on the basis of freedoms and rights of oppressed groups, conservatives have been taking every opportunity to protect business and corporations from lawsuits by those harmed by those businesses and corporations. Businesses won 28 percent of cases before the Warren court, Cohen reports, but 64 percent (up to 2009) before the current court led by Chief Justice John Roberts. Even lower-court appointees by Democratic presidents have been giving assists on a regular basis to that effort. But that should be no surprise, given the pro-business bent of Presidents Bill Clinton and Obama.

Another example of a SCOTUS ruling that humanists love to hate for its anti-democratic effects is Citizens United v. Federal Elections Commission. That 2010 decision relied on a 1978 decision, First National Bank of Boston v. Bellotti, that Powell had written for the majority, holding that corporate election donations deserved the same First Amendment treatment as similar donations by human beings.

Beyond the scope of Cohen’s book is a wide range of other decisions by the high court over the decades. One could argue that conservatives on the Supreme Court have tried to hide their pro-business bias from liberal criticism with a number of socially liberal decisions. After all, Blackmun wrote the opinion in Roe v. Wade, and even Powell voted with the majority. A more recent example is Obergefell v. Hodges, which in 2015 declared a constitutional right to same-sex marriage. And, of course, there have been a couple of rulings this year in which Chief Justice Roberts found grounds to preserve socially liberal policies, even if only temporarily on technical grounds.

The less-than-stellar performance by Senate Democrats on appointments is exacerbated by the conservative movement’s sophisticated organizing around judicial nominations. They established the Federalist Society, a group organized in law schools around the US that has been grooming potential conservative judges at all levels of state and federal courts for nearly forty years. All five conservative justices presently on the Supreme Court are current or former members or supporters of the Federalist Society. The vast majority of Trump’s appointments to the federal courts of appeal have been members, and there’s no doubt his pick to fill Ginsburg’s seat will be someone the group has approved.

After the Supreme Court’s disastrous 2000 decision in Bush v. Gore, liberal law professors started the American Constitution Society (ACS). The ACS does not get nearly as much financial support as the Federalist Society, which reaps corporate largesse on account of its anti-regulatory stance. In 2018 the American Humanist Association launched the Humanist Legal Society (HLS) to, as its mission statement says, “promote and protect humanist values in the legal system by providing support and networking opportunities to lawyers, judges, legal academics, law students and paralegals throughout the United States and by fostering development of humanism in the law.” The organization needs the support of the wider humanist community to even begin to counter the Federalist Society. Imagine if the HLS could someday gain the cachet to propose candidates for nomination to the Supreme Court.