The Volokh Conspiracy

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2016 and 2020: Progressives Counted Their SCOTUS Chickens Before They Hatched



Flash back to October 2016. Justice Scalia's seat was vacant. Hillary Clinton was almost President-elect. And a quasi-conservative majority would soon be a thing of the past. Forget Merrick Garland. The Court would now have a permanent liberal majority for a generation. And progressives were ecstatic. Conservative precedents like HellerCitizens UnitedShelby County, and others cases were on the chopping block. Originalism was dead. And then election day happened. Trump won and appointed Justice Gorsuch to the Court. Then, Justice Kennedy retired, and was replaced by Justice Kavanaugh.

Now, flash back to September 2020. Joe Biden was almost President-elect. He would be ushered into Congress by a blue wave. Large majorities in both houses of Congress would eliminate the filibuster, and pass "Court Reform" legislation. Nine is a good number, but eleven is better. Conservative precedents like HellerCitizens UnitedShelby County, and others cases were once again on the chopping block. But once again, things did not go according to plan. Justice Ginsburg passed away. President Trump filled the vacancy with Justice Barrett. Biden won the election, but there was no blue wave. The Democratic majority shrank. And, best case scenario, the Democrats will have 50 votes in the Senate. "Court Reform" is off the table, at least for the next two, and probably four years.

This loss must be so difficult, because victory was so close. For the second election cycle in a row, progressives counted their SCOTUS chickens before they hatched. I don't take joy in this loss–call it Garlandfreude. Instead, I take away an important lesson. Over the next two-to-four years, when progressives criticize the Court–as they certainly will–I will frame their criticism in terms of what could have been. Every Kagan dissent could have been a Kagan majority. Every Gorsuch concurrence could have been a Gorsuch dissent. Every conservative cert grant should have been a cert denied. Every circuit vacancy that remains vacant should have been filled with a shortlister. Every conservative circuit en banc opinion should have been a conservative dissental. And so on.

Conservatives can commiserate. Stevens. O'Connor. Bork. Ginsburg. Kennedy. Souter. Roberts. Victory was so close, they could taste it. And so on.