The Courts

The conservative takeover will be complete.

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.

Imagine a Democratic presidential nominee running on promises to reshape, remake, make over, hog-tie, or even just refinish the federal bench. It doesn’t happen. And so, even though the most conservative Supreme Court in decades sits poised to decide cases ranging from the constitutionality of President Obama’s health care legislation to the future of affirmative action in schools, the rights to gay marriage, and the fate of the voting rights act, Republicans portray both the Supreme Court and the lower courts as a collective of lefty hippies. And Democrats mainly just look at their fingernails. If you care about the future of abortion rights, stem cell research, worker protections, the death penalty, environmental regulation, torture, presidential power, warrantless surveillance, or any number of other issues, it’s worth recalling that the last stop on the answer to each of those matters will probably be before someone in a black robe. Republicans have understood that for decades now, and that’s why the federal bench—including the Supreme Court—is almost unrecognizable to Democrats today.

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Dahlia Lithwick

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