January/ February 2012 The Courts

The conservative takeover will be complete.

By Dahlia Lithwick

For anyone considering the 2012 election’s importance to the future of the American judiciary, one fact stands out: next November, Ruth Bader Ginsburg will be seventy-nine years old. If a Republican wins the presidential election, he or she may have an opportunity to seat Ginsburg’s successor, replacing the Supreme Court’s most reliably liberal jurist with a conservative. That would mean that the Court—currently balanced almost elegantly between four liberals, four conservatives, and the moderate conservative Anthony Kennedy—would finally tilt decisively to the right, thereby fulfilling Edwin Meese’s dream, laid out in his famous 1985 speech before the American Bar Association, of reshaping the Court around one coherent “jurisprudence of original intention.” Meese, who was then Ronald Reagan’s attorney general, wanted nine conservative constitutional originalists on the Court. He may soon get his wish. A 2008 study by Richard Posner, a federal appeals court judge, and William Landes, a law professor at the University of Chicago, examined the voting records of seventy years of Supreme Court justices in order to rank the forty-three justices who have served on the Court since 1937. They concluded that four of the five most conservative justices to serve on the Supreme Court since 1937 sit on the Supreme Court today. Justice Clarence Thomas ranked first.

Kennedy, who is ranked tenth in that study, will be seventy- six next November. If a Republican successor of Obama gets to replace both Kennedy and Ginsburg, it’s fair to predict that the Roberts Court may include five or even six of the most conservative jurists since the FDR era. Following the ideological disappointment that was David Souter, Republicans have been spectacularly successful in selecting and confirming justices who consistently vote for conservative outcomes. Indeed, the replacement of moderate Sandra Day O’Connor with Samuel Alito may have produced the most consequential shift at the Court in our lifetimes; in a few short years O’Connor’s pragmatic legal doctrine in areas ranging from abortion to affirmative action to campaign finance reform has been displaced by rulings that would make Edwin Meese’s heart sing.

But it’s not just the Supreme Court that would tilt further right. The high court only hears seventy-some cases each year. The vast majority of disputes are resolved by the federal appellate courts, which are the last stop for almost every federal litigant in the country. And the one legacy of which George W. Bush can be most proud is his fundamental transformation of the lower federal judiciary—a change that happened almost completely undetected by the left. At a Federalist Society meeting in 2008, Bush boasted that he had seated more than a third of the federal judges expected to be serving when he left office, most of them younger and more conservative than their colleagues, all tenured for life and in control of the majority of the federal circuit courts of appeals. The consequences of that change at the appeals court level were as profound as they were unnoticed. As Charlie Savage of the New York Times put it at the time, the Bush judges “have been more likely than their colleagues to favor corporations over regulators and people alleging discrimination, and to favor government over people who claim rights violations. They have also been more likely to throw out cases on technical grounds, like rejecting plaintiffs’ standing to sue.” In short, they have copied and amplified the larger trends at the Roberts Court: a jurisprudence that skews pro-business, pro-life, anti-environment, and toward entangling the church with the state. Under the rhetorical banners of “modesty” and “humility” and “strict construction,” the rightward shift has done more to restore a pre-New Deal legal landscape than any legislative or policy change might have done.

The current administration has not done much to restore the ideological balance of the federal appeals courts. For one thing, this was never Obama’s priority the way it was for Bush, his father, and Ronald Reagan. Obama, like Bill Clinton before him, has selected lower court judges more notable for their racial and gender diversity than their hard-left judicial orientation. And he also has failed to seat them in numbers comparable to the Bush record. Republicans have used Senate rules so effectively to block Obama judges that the judicial vacancy rate currently stands at eighty-four vacancies, with thirty of those designated “judicial emergencies” based on courts’ inability to manage caseloads. Filibusters, holds, and other arcane Senate rules have brought the system to the point where civil litigants may wait years to get into court. And the unprecedented waste of time that results from GOP obstruction of Obama judges has led some of the most interesting and thoughtful jurists, most famously California’s Goodwin Liu, to withdraw their names from contention.

Why have the Republicans been so much more effective at dragging the judicial branch rightward than Democrats have been in yanking it back? Focus, mainly. Since the Meese revolution of the mid-1980s, the GOP has been better at constitutional messaging, better at mobilizing the electorate, and better at laying out a judicial vision than liberals, who still seem to believe that unless the Supreme Court overturns Roe v. Wade (or perhaps the Affordable Care Act), judges are not really a voting issue.

Perhaps the best evidence of the resulting “intensity gap” over the work and composition of the federal courts lies not in the lopsided makeup of the bench but in the proposals to “reform” the judicial branch that have been put forward in recent months by GOP presidential hopefuls. Just for starters: Rick Perry seeks to term-limit federal judges, and before he left the race Herman Cain talked about “overturning” the Supreme Court (whatever that means) if it ever legalizes same-sex marriage. Michele Bachmann believes Congress can and should keep the federal courts from ruling on same-sex marriage. Rick Santorum says he wants to just do away with the entire U.S. Ninth Circuit Court of Appeals. And Newt Gingrich says his plans for the federal judiciary include empowering members of Congress to summon Supreme Court justices to defend their opinions. He also wants Congress to pass a “personhood law” that would define life as beginning at conception under the Fourteenth Amendment, and thus, as he said, “undo all of Roe vs. Wade, for the entire country, in one legislative action.” Ron Paul joins Bachmann, Gingrich, and Perry in promising to strip judges of authority to hear any cases involving religion, privacy, the right to marry, and other matters.

Even if you consider all of these threats, promises, and pledges about the courts to be more performance art than actual policy (and I do—Republicans have been running against the ghost of the Warren Court since the 1970s), it says something about the primacy of curbing runaway courts in GOP rhetoric. As Chief Justice John Marshall famously said in 1803, “It is emphatically the province and duty of the judicial department to say what the law is.” But Republicans are running on the premise that the courts may only say what the law is if the law means what Gingrich believes.

Dahlia Lithwick is a senior editor at Slate, where she writes the "Supreme Court Dispatches" and "Jurisprudence" columns.


  • win on January 15, 2012 11:29 AM:

    As much as the article intends to provoke fear of a Supreme Court with a majority of Justices who support the original meaning theory, the article fails. Originalists simply believe that the original meaning of the Constitution should be considered in reaching decisions. The great majority of originalists believe as part of that Justices should ask the question “How would a reasonable person living when the Constitution or amendment was passed, have interpreted the text in question?”
    The idea stems from the concept that the Constitution is written by the people and for the people therefore people must be able to understand it's meaning.

    None of the concepts in originalism are dangerous or harmful as the article promotes. Rather the concepts uphold the underlying concept of the reasoning behind the foundation of the United States – that the authority of the government comes from the people and without that the authority the government is illegitimate.
    The Constitution is meant to protect the rights of the people, so one can only wonder what good it would do if the people were able to understand it, but would have to have a lawyer to comprehend the meaning.

    Perhaps we should cheer that conservatives apparently have belief in the people, and instead consider the ideological differences between the two parties as the cause of disagreements.

  • David on January 15, 2012 3:47 PM:

    The attempt by this article to paint President Obama's picks as less ideologically extreme fails in the face of the embarrassing selection of Justice Sotomajor, perhaps the most unqualified pick since Clarence Thomas. Just look at her extreme (and ludicrous) work in the New Haven firefighter case.

  • John Herbison on January 15, 2012 5:20 PM:

    The great majority of originalists believe as part of that Justices should ask the question �How would a reasonable person living when the Constitution or amendment was passed, have interpreted the text in question?�

    Let's see now. How would that work in practice? Take, for example, Bolling v. Sharpe, an opinion issued on the same day in 1954 as the more famous Brown v. Board of Education of Topeka. In Brown, the Court held that a system of racially segregated public schools violates the Equal Protection guaranty of the Fourteenth Amendment. In Bolling, the Court reasoned that segregated public schools in the District of Columbia, a federal enclave which is not a State subject to the Fourteenth Amendment Equal Protection clause, violates the Due Process Clause of the Fifth Amendment, which the Court construed to guarantee equal protection vis-a-vis the federal government coextensive with the Fourteenth Amendment guaranty.

    The Fifth Amendment was ratified in 1791. The drafters there likely had no idea that they were prohibiting de jure segregation of the races.

    Suppose Chief Justice Roberts, in his capacity as administrative head of the judicial branch of government, decided, on originalist grounds, that Bolling v. Sharpe was wrongly decided. Should he then order that some drinking fountains in the Supreme Court building be reserved for white people and others reserved for coloreds?

  • FoonTheElder on January 17, 2012 10:58 AM:

    The great 'originalists' are nothing but phonies. When did the founders state that corporations are people, property (money) equals free speech and that the Supreme Court decides presidential elections.

    This court does nothing more than decide the result they want to see and back into the legal logic.

  • POed Lib on January 18, 2012 10:27 AM:

    Most of the "originalists" are nothing but corpowhores who believe that corporations are people, and people who deserve a much better treatment than living breathing people. The extreme travesty of Bush v Gore reveals the bald-faced, total lie of the notion of "originalism". If there is one thing that the constitution stands for, it is that the powers should be separate, and when the SC picked Bush, this was forever destroyed. Citizens United is ANOTHER horrible corpowhore decision.

  • Karen Green on January 20, 2012 1:21 PM:

    This may seem ridiculous but I am not sure the original writers of the Constitution were originalists-they did allow for change by the amendment process.

  • serena1313 on January 21, 2012 6:04 AM:

    While presidents come & go, their legacies live on through their appointees to the courts at the federal level & the Supreme Court.

    I was alarmed when Bush began appointing judges at breakneck speed. When Bush nominated John Roberts & Alito to the Supreme Court I was disappointed the Democrats did not put up more of a fight. Thankfully they did successfully block Robert Bork.

    I do not know if Newt Gingrich would carry through on his pledge to remove judges and justices from the bench if he decides they are not following the Constitution, but I would not put anything past him. Mitt Romney may not sound as radical, however, with Robert Bork on his judiciary advisory committee Romney might be just as radical as Newt. But who knows given his multifarious positions. Regardless if it is performance art or not, just the mere threat, pledge or promise ought to give everyone pause.

    Another troubling aspect is the influence of money in our courts. It is one thing for Clarence Thomas, Antonin Alito & Scalia to have been guest speakers and or invited as guests at several events hosted by the Koch brothers it is quite another to be the recipient of gifts worth tens of thousands of dollars. While Iam not aware of Alito or Scalia receiving extravagant gifts, Clarence Thomas & his wife certainly have.

    Clarence Thomas' wife started her own lobbying company with a $500,000.00 gift from one Thomas' close friends, Dallas real estate magnate & GOP financier Harlan Crow. Crow also gave Justice Thomas a Bible valued at $19,000.00 (10-years ago), provided travel on his private jets, financed a multimillion-dollar deal for a museum at the cannery where Thomas’ mother worked among other things. Crow's companies have been involved in the appellate courts, but he served on the board of the American Enterprise Institute (AEI). As the trustee, Crow gave Thomas a bust of Abraham Lincoln worth $15,000. Instead of recusing himself, Thomas voted in favour of all 3 cases the AEI litigated before the Court. No Thomas is not required by law to recuse himself, but it is the appearance of impropriety on his part that is troubling.

    As money & powerful interests creep into every aspect of our government, our elections and our justice system, all the progress we've fought for & won the past 50 years or more is being set back.

    Today accessing the courts is a feat in itself. Redressing our grievances in a court of law is hardly worth the effort anymore. The expense alone is way beyond most people's means & by the time their case finally gets to court, it is either thrown-out or decided against. After all corporations are people. Money is free speech. And we, the people, are just a side-note or nuisance.

    With more conservative judges & Justices ultimately things will only get worse. That is not hyperbole; it is already occurring. Even the lest observant can attest to that.

    This is a discussion long overdue. Thank You Dahlia for starting it.

  • Tom on January 22, 2012 12:01 PM:

    I honestly believe the conservatives, particularly in the south, would love a new Civil War. So, to paraphrase one of their own -- "Bring it on."

  • Steve on January 25, 2012 5:07 PM:

    Tom, just let them go, I think I can survive without South Carolina, and Texas.

  • tpane on January 27, 2012 7:36 PM:

    Democrat/Socialists seem to take great offense at corporations being considered "people." In my mind, corporations are run by - sure enough - real people and, more importantly, if they pay a (the Democrat's favorite - hidden) tax, and they do, they must be productive people!!

  • Lovelalola on January 28, 2012 11:05 PM:

    Oh, scary! If I don't vote for Obama they are coming for my uterus and will destroy the green planet! Geez, how many idiots do you think buy this crap anymore. Defend your own abortions; I never needed one.

  • KenM13 on January 29, 2012 2:29 PM:

    "In my mind, corporations are run by - sure enough - real people"

    People who already have an equal voice in politics and create a corporate person to give themselves an unequal advantage.

  • susan on January 31, 2012 10:04 AM:

    You are exactly correct, win. Thank you for that. There is absolutely nothing dangerous about originalism. With originalism, the Constitution is effective at curtailing the growth and scope of the Federal government. On the otherhand, there is something very dangerous about individuals being arbitrarily "determined" to have the authority to decide what the law "should be." No thanks. The day the final nail is put in the coffin of the "Living Constitution" theory is the day that federal tyranny will be once again put at bay in this nation.

  • Wally on February 10, 2012 8:08 PM:

    The "founders" - whoever exactly they were - were not "originalists." They never stated that the Constituion could not be interpreted by courts and indeed they drafted a Constitution giving such ample authority to courts to do just that. Why? Because because relying on legislative intent - unless crystal clear - to decide cases allows for a system whereby elites have discretion to interpret the law any way they want.

    Originalism is a construct invented by proffered by mainly white wealthy southerners in the mid 19th century to keep the oligarchical slavery system intact and resuscitated in the late 20th to return the country to well, the time of slavery. To a time where wealthy oligarchs could buy the result from 3 branches of government without interference from legal challenge by plebians, sharecroppers, crackers, slaves and shopkeepers referring to laws protecting them. What originalism really is, is the elimination of a transparent system of rule of law that ensures everyone has is equal before the law.

  • al-Ameda on February 20, 2012 7:51 PM:

    Fortunately, it appears that Obama will get 2 more chances, and following that, a Hillary Clinton Administration will get 2 more chances.

    If progressives are really fortunate, Clarence Thomas will be forced to resign, for transgressions that are far more serious than those that forced Abe Fortas off the court over 40 years ago.

  • Saving Grace on March 10, 2012 9:07 PM:

    Again, the constant fear that conservatives will overturn abortion. It's always about abortion, isn't it? Planned Parenthood and NOW sure have some power within the DNC, don't they? Can we ever stop with this premise that Republicans just want to hurt women? It simply isn't true. To make the charge that Thomas is evil because of Anita Hills claim...come on, her claim is about as true as Flukes. A manufactured dog and pony show by the protectors of abortion. geez...it's hard to watch the left do this. People just aren't buying it anymore.

  • Bernard on March 11, 2012 10:39 PM:

    Courts for the application of Justice? what a weird concept or government for the People, oh please!

    Courts are there for the Conservatives to do what they choose. that's the way it's always been. Lighting a candle in the darkness is not the conservative way. Using a candel costs way too much/not conserving that candle/ to fight the darkness. it is much more efficient to curse and blame the "other." and more importantly the sheep never quesiton what Big Daddy says.

  • Tom on July 31, 2012 3:43 PM:

    I'd give anything for a clear conservative majority in the Supreme Court. Then we can have confidence that they will make the right decisions.