For Legal Conservatives, Six Decades Of Folding, Followed By Sixteen Years To Draw A Full House

On the plus side, we had Rehnquist, Scalia, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. On the down side, we had Roberts, Souter, Kennedy, O'Connor, Powell, Blackmun, Burger, Stewart, Whittaker, Brennan, and Warren.

We are now roughly one month from Dobbs. I still cannot believe it happened. Indeed, I still can't believe the Court overruled Roe and Casey, expanded the Second Amendment, "abandoned" Lemon, and so much more–in the span of a week! It is worthwhile to reflect on all the things that had to go right over the past sixteen years for this moment to happen. But it is also useful to keep stock how many blunders were made over the prior sixty years. Ed Whelan and Ilya Shapiro flagged many of the high points and low points. Here is the relevant chronology from my perspective.

For judicial conservatives, there were sixty decades of famine, followed by sixteen years of feast.

President Eisenhower

Let's start with the bad times, which stretch all the way back to the Eisenhower administration–the first opportunity for a Republican President to remake the New Deal Court:

• 1953—After the sudden death of Chief Justice Fred Vinson, President Eisenhower recess-appoints California Governor Earl Warren as Chief Justice. One year later, the Senate confirms Warren. Eisenhower would later describe Warren's appointment as the biggest mistake he ever made.
• 1956—Shortly before the election, President Eisenhower made a recess appointment of New Jersey Supreme Court Justice William Brennan. He was confirmed the following year. Apparently, Eisenhower appreciated Brennan's Catholicism. If Warren was Eisenhower's biggest mistake, then Brennan must be a close second.
• 1957—Most people have never heard of Justice Charles Whittaker. He only served for five years. Meanwhile, Brennan served for three decades.
• Eisenhower's other two nominees were conservative enough, at least for the day: Justices John Marshall Harlan II and Potter Stewart. But none would rival the influence of Warren and Brennan.

President Nixon

After eight years of democratic administrations, President Nixon comes to the White House with a golden opportunity to reshape the Court, that he largely wastes.

• 1969—As President Johnson's term drew to a close, Chief Justice Warren recognized that Richard Nixon may win. So Warren announced that he would step down upon the confirmation of his successor. President Johnson tried to nominate his crony, Justice Abe Fortas, as Chief Justice, but that selection blew up for many reasons. And the Democrats did not try to squeeze in another candidate before the election. (If only Mitch McConnell was their leader!) President Nixon was handed a miracle: the chance to replace the great Earl Warren. Who did he pick? Another Warren. Warren Burger to be precise. Burger turned out to be relatively uninfluential, and outside the area of criminal law, was not particularly conservative.
• 1970—Once Fortas's chicaneries became public, he resigned. And, Nixon had the chance to flip another seat. Who did he pick? The Minnesota Twin, Harry Blackmun, who would write Roe v. Wade, and become a solid liberal.
• 1971—The Black and Harlan seats became vacant. Nixon appointed Powell for the former vacancy who would turn out to be the new "swing" vote. And Harlan was replaced by Rehnquist, the only solid conservative Nixon would appoint.
• In the span of three years, Nixon made four Supreme Court nominations. He batted about .250.

President Ford

President Ford, the accidental President, was in office for a short period. He would have one Supreme Court to show for it.

• 1975—Justice Douglas finally retired, and President Ford selected Judge John Paul Stevens. Like Harry Blackmun, Stevens would become a leader of the left-wing of the Court. Though, Ford would always defend his lone pick to the Supreme Court.

President Reagan

President Reagan tried to turn the tide on the Supreme Court. He did better than his predecessors, but still had a mixed record.

• 1981—President Reagan selected Sandra Day O'Connor to replace Justice Stewart. Like Justice Powell, O'Connor would become something of a swing vote. She marginally pushed the Court to the right in a few areas, like federalism.
• 1986—Chief Justice Burger stepped down, and Reagan made two excellent nominations: Rehnquist for Chief Justice and Scalia to fill the Associate Justice seat. Both were confirmed, and both were very successful. But had Reagan nominated Bork in 1985, he likely would have gotten through.
• 1987—Justice Powell announced he would step down. What happened next is the stuff of legends. Bork was borked. Ginsburg was never formally nominated. Instead, we got Justice Kennedy, who would be yet another swing vote.

President George H.W. Bush

The first President Bush was given two nominees his first term. He batted .500.

• 1990—Justice Brennan could hold no longer, and stepped down. Given the chance, Bush passed over his fellow Houstonian, Edith Jones, and selected David Souter. This pick is quite possibly the worst selection in modern Supreme Court history.
• 1991—One year later, Bush was given the chance to fill the seat of Justice Thurgood Marshall. To Bush's credit, he picked Clarence Thomas. Though I am convinced if Bush knew quite how conservative Thomas was, he would have picked someone else.

The six decades of famine would come to an end in 2005.

President George W. Bush

Bush had no Supreme Court nominations his first term in office, but got two in rapid succession during his second term.

• 2005 –  First, Justice Sandra Day O'Connor announced her retirement. Second, Chief Justice Rehnquist suddenly passed away. According to reports, the top three candidates for the first seat were John Roberts, Mike Luttig, and J. Harvie Wilkinson. And we got Roberts. For many years, conservatives said "if only we had Luttig," but those voices have quieted since Trump left office.
• 2006—The bigger shift came with the second seat. Initially, President Bush nominated Harriet Miers, his White House Counsel, to fill Justice O'Connor's vacancy. (If he wanted a woman, Edith Jones was still available, but like father, like son). The conservative legal movement rebelled, and Bush selected Samuel Alito. Sixteen years later, Alito would write the majority opinion in Dobbs. We do not know how Miers would have voted in that case.

President Donald Trump

The tide would decisively turn between 2016 and 2020.

• After Justice Scalia's death, Senate Republicans refused to consider whoever President Obama would have nominated. This was a momentous decision that altered the course of the Supreme Court's history.
• But that strategy would only pay off if a Republican won the election. Had Clinton prevailed, someone far to the left of Garland would have been confirmed.
• Trump was able to seize the nomination, in large part, by assuring conservatives that he could be trusted to fill the Scalia seat.
• Against all odds, Trump prevailed. And he would nominate Neil Gorsuch for the seat.
• The Democrats waged a quixotic filibuster against Gorsuch. At the time, the Republicans had enough votes to nuke the filibuster for Supreme Court nominations.
• Each of the steps were essential to save the Scalia seat. And none of these steps were political certainties.
• Justice Kennedy stepped down, and President Trump nominated a Kennedy clerk to fill the seat. Coincidence? I'll let you decide.
• After Justice Kavanaugh's second confirmation hearing, there was every call for him to step down. But he refused.
• After the hearings concluded, Kavanaugh's vote count was very much in doubt. Had the Democrats not wasted a filibuster against Gorsuch, I doubt Kavanaugh could have made it through. But, in the end, Kavanaugh was narrowly confirmed.
• At this point, there was a solid five-member conservative Court. Yet, in June Medical (2019), Roberts stood by Roe. At the time, we thought Roberts's vote was perhaps limited to that case, where the question of overruling Roe was not squarely presented. But in hindsight, after Dobbs, Roberts was never prepared to take that step. One more vote was needed
• Justice Ginsburg died in September 2020, and President Trump quickly nominated Judge Amy Coney Barrett. She was confirmed a few days before the election. Had Ginsburg passed even a few weeks later, it would likely have been impossible to complete the process before the election. And, with hindsight, the period after the election was a complete mess. Could a Supreme Court hearing have even been held and completed in that period?

To get to Dobbs, the conservative legal movement had to draw a full house over the course of sixteen years. And that winning hand–three of a kind and two of a kind–was preceded by six decades of simply folding. What a remarkable turn of events.