In my first of this four-part series about the Supreme Court, I looked at how we essentially haven’t had a liberal Supreme Court since 1968: 75% the sixteen appointments to the U.S. Supreme Court made since Chief Justice Earl Warren retired have been made by Republicans, and while there have been some surprises, most have skewed conservative. In part two, I contrasted how very different a liberal court like the Warren Court was compared to a conservative court like the current Roberts Court.
In this third part, I want to share more about the political makeup of current members of the court to provide the background for our discussion of the future of the court in part four.
When President Richard Nixon was able to replace both Chief Justice Earl Warren and Associate Justice Abe Fortas in 1969 with Warren Berger and Harry Blackmun, respectively, he was able to take the court back from the liberals. Although Blackmun, a lifelong Republican, eventually became more moderate and was siding with the liberal members of the court by the end of his career, by that point Nixon and then Reagan had made additional conservative appointees and the liberals never regained a majority.
The Martin-Quinn scale compares Supreme Court justices ideologically by evaluating contested Supreme Court decisions. By averaging their annual scores, we’re able to rank and compare their relative conservativeness or liberalness quantitatively. My first diary in this series ranks the last 45 justices on this scale. Another scale, the Segal-Cover Score, rates the perceived ideology of Supreme Court nominees based on editorial coverage of their confirmation hearings. It can be a useful tool for assessing unconfirmed nominees as well as for contrasting the nominating president’s intent against the justice’s actual eventual ideology once they are on the bench. Under the Segal-Cover Score, for example, liberal justice John Paul Stevens was perceived to be more conservative than Anthony Kennedy or Sandra Day O’Connor and only slightly less conservative than Clarence Thomas (who went on to become the single most conservative justice ever measured under the Martin-Quinn scale).
Here’s what their nominating presidents tried to do with their appointments of current members of the court, and what was actually accomplished:
The Vacant Seat
Antonin Scalia, one of the most conservative members of the court in generations, replaced conservative William Rehnquist’s associate seat when Rehnquist was elevated to Chief Justice to replace the more moderate Warren Berger (relatively speaking). Scalia was ranked 4th on the Martin-Quinn scale, which is two ranks below Rehnquist. But ultimately, his vote as one of nine justices on the court replaces Berger’s vote, who was ranked 8th, so for all practical purposes he shifted the court more conservatively. He was appointed in Reagan’s second term. Intended Impact: Keep conservative. Actual Impact: Success: stayed conservative.
The Four Conservative Justices
The four conservative justices are listed here from most conservative to most moderate as ranked on the Martin-Quinn scale.
Clarence Thomas, an extremely conservative justice, more so than even Scalia, was appointed to replace civil rights icon Thurgood Marshall, a liberal lion nominated by Lyndon Johnson, the first African American to serve on the court. Not only does his average on the Martin-Quinn scale place him as the most conservative on the court over the course of his career, even higher than Scalia and Rehnquist, but he has consistently scored higher than them every individual year since he was first appointed to the court. Of all of these replacements, this is by far the biggest swing from a liberal to conservative replacement, as he replaced the second most liberal justice since the 1930s and became the single most conservative – thus moving the seat from 44th place to first on the conservative scale. He was appointed in the second year of Bush’s only term. Intended Impact: Flip liberal to conservative. Actual Impact: Success: flipped to conservative.
Samuel Alito, an extremely conservative appointee who always votes with the conservative wing in split decisions and general votes with the more conservative members when some of them split off, replaced the moderate swing voter Sandra Day O’Connor, who has subsequently been very critical of his vote in Citizens United. He scores seventh on the Martin-Quinn scale while O’Connor scored 17th, so he moved the seat ten ranks more conservative. He was appointed by Bush in his second term. Intended Impact: Turn moderate to conservative. Actual Impact: Success: turned moderate to conservative.
Chief Justice John Roberts, who is pretty conservative, replaced the arch-conservative Chief Justice William Rehnquist. Roberts is ranked 11th out of 45 justices on the Martin-Quinn scale, but because he replaced Rehnquist who was ranked second, he ended up moving the seat nine ranks more liberal despite his conservatism. Out of all of the justices appointed by Republican Presidents, this was only the second time this has happened. Although he has unexpectedly sided with the liberal wing for some cases like upholding the Affordable Care Act, these decisions are often crafted in unusual ways that some believe are planting time bombs intended to erode federal authority over state power down the road. He generally rules conservatively, so the differences between him and Rehnquist are largely academic. He was appointed by Bush in his second term. Intended Impact: Keep conservative. Actual Impact: Success: stayed conservative.
Anthony Kennedy, a moderate conservative, replaced the moderately conservative Lewis Powell. Kennedy, who became the swing vote after O’Connor’s retirement, was a compromise candidate appointed by Reagan after Reagan’s extremely hard-right conservative choice, Robert Bork, was voted down by the US Senate 42 to 58 (including by six Republicans) and his second choice, Douglas Ginsburg, had to withdraw his name from consideration after he confessed to marijuana use both in college and after as a professor. (Today the revelation probably wouldn’t raise any eyebrows, but in 1987/1988 it was at the height of Nancy Reagan’s “Just Say No to Drugs” campaign.) The Martin-Quinn scale only ranks justices based on their actual Supreme Court decisions, so unconfirmed nominees are not evaluated, but the Segal-Cover scale, which ranks perceived ideology during their Senate confirmation and therefore also ranks unconfirmed nominees, places Ginsburg as the second-most conservative out of the most recent 45 (behind Scalia) and Bork at 5th, with Kennedy at a more distant 19th. This was also clearly a pick for ideological reasons, as Ginsburg was also rated as the fourth least qualified of the last 45 people nominated to the Supreme Court. Kennedy replaced Lewis Powell, another moderate conservative swing voter. On the Martin-Quinn scale, Kennedy is one of only two Republican appointees to end up being less conservative than the justice he replaced, ranking 19th most conservative, three ranks below Powell at 16th. Kennedy wrote the liberal decision in Lawrence v. Edwards that overturned the Bowers v. Hardwick sodomy decision in which Powell sided with the conservative majority. Kennedy was undoubtedly more moderate than Reagan would have preferred, but the brutal confirmation battle over Bork and embarrassment over Ginsburg forced him to pull back. Even so, Kennedy was the swing vote on some of the Roberts Court’s most conservative cases, including Citizens United, Heller, Hobby Lobby, and more. He was appointed at the end of Reagan’s second term. Though Reagan’s initial intentions with Bork and Ginsburg’s nominations were to move the seat far to the right, his appointment ultimately has to be measured by the compromise he was forced to make when he eventually did nominate Kennedy. Intended Impact: Keep moderate. Actual Impact: Success: stayed moderate.
Conservative Assessment: Of the current conservative members of the court, three of the four members were nominated to shore up a conservative seat, but the fourth was a flip, the most dramatic flip measured on the court, resulting in a huge ideological change on the court.
The Four Liberal Justices
The four liberal justices are ranked here from most moderate to most liberal using the Martin-Quinn scale.
Stephen Breyer, a moderate-liberal, replaced Harry Blackmun, a Nixon appointee who over his career evolved into a moderate member of the court who ranked 27th most conservative on the Martin-Quinn scale. Breyer ranks 34th on the scale, so he moved the seat seven ranks more liberal. He was appointed during Clinton’s first term when the Senate was still under Democratic control. Intended Impact: Turn a moderate to a moderate-liberal. Actual Impact: Success: turned a moderate to a moderate-liberal.
Ruth Bader Ginsburg, the court’s second female justice who had worked as a volunteer civil rights attorney for the ACLU, had been recommended by Senator Orrin Hatch (R-UT) and was considered to be a liberal-moderate at the time of her confirmation hearings, but has become one of the court’s more notable liberal members. Hatch probably had no illusions that she was a Sandra Day O’Conner-style moderate-conservative, but also probably didn’t expect her to become infamous as the “Notorious R.B.G.,” taking the mantle from John Paul Stevens as the celebrated senior member of the liberal faction upon his retirement. On the Martin-Quinn scale, she ranks as the 37th most conservative or 8th most liberal. She replaced Byron White, a John F. Kennedy appointee who was considered to be a moderate, disappointing many Kennedy supporters by dissenting in Miranda and Roe v. Wade, and siding with the conservative majority in Bowers v. Hardwick. White was ranked 23rd most conservative on the Martin-Quinn scale, so she moved the seat 14 ranks more liberal. She was appointed during Clinton’s first term when the Senate was still under Democratic control. Intended Impact: Flip from moderate to liberal. Actual Impact: Success: flipped from moderate to liberal.
Elena Kagan, who generally votes with the liberal justices, replaced John Paul Stevens, a Republican appointed by Ford who became one of the more staunchly liberal members of the court. Their scores on the Martin-Quinn scale are virtually identical: he ranked 6th most liberal out of 45, while she ranks 7th. She was appointed by Obama during his first term when the Democrats still had a filibuster-proof majority in the Senate. Intended Impact: Keep liberal. Actual Impact: Success: stayed liberal.
Sonia Sotomayor, the court’s first Latina appointee, generally votes with the more liberal members of the court. She was appointed to replace David Souter, who was expected to be a hardline conservative but ended up siding with the liberal wing. She ranks as 42nd most conservative on the Martin-Quinn scale, or fourth most liberal, so she moved the seat eleven ranks more liberal than Souter. She was appointed by Obama during his first term when the Democrats still had a filibuster-proof majority in the Senate, albeit one that depended on blue-dog Democrats. Intended Impact: Keep liberal. Actual Impact: Success: stayed liberal.
Liberal Assessment: None of the four liberal appointees were used to flip a true conservative seat, so while they may have made the court incrementally more liberal, they did not result in a real ideological shift.
And Merrick Garland?
We don’t know how President Obama’s nominee, Merrick Garland, would rank because the Martin-Quinn scale only rates justices already on the court based on their actual decisions.
The Segal-Cover Score assesses nominated justices based on their perceived ideology, which allows us to compare unconfirmed justices like Robert Bork, Douglas Ginsburg, and Harriet Miers. It also allows us to get a sense of presidential intentions versus a justice’s ultimate ideology. Unfortunately, these scores are made by analyzing preconfirmation newspaper editorials, which are using written after confirmation hearings. Because Garland hasn’t had a hearing and consequent editorial coverage, he does not yet have a Segal-Cover score.
One recent study tried to assess federal judges’ ideologies based on the clerks they hired (the “birds of a feather flock together” theory). Based on that study, Garland would be slightly less liberal than Ginsburg and Breyer, but still close to them. But that theory also puts Kagan as significantly more liberal than Sotomayor, while the Martin-Quinn scale puts Sotomayor as more liberal based on their actual decisions.
But another analysis by Martin and Quinn suggests that Garland may actually be more liberal than previously believed. Lee Epstein of Washington University, who studied this with Martin and Quinn, believes that Garland would be a little more liberal than Breyer and Kagan and less liberal than Ginsburg and Sotomayor. This would actually place Breyer as the court’s swing vote, not Garland as many have believed.
Even those who fear Garland may be far more moderate than they would wish have to acknowledge that his confirmation would, compared to Scalia, represent a huge ideological shift on the court.
An Activist Court?
Conservatives like to rail against activist judges – the “unelected men in robes” used to decry everything from the same-sex marriage ruling in Obergefell v. Hodges to the racial discrimination cases of the 1950s and 60s.
But which judges are the real activists?
The ones who decided that the Equal Protection Clause in the 14th Amendment actually means equal protection? Who recognized that the drafters of the amendment could have chosen language to narrowly tailor it to explicitly limit it to former slaves and their descendants, or to limit it solely to racial discrimination, but instead chose more expansive language:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
— Fourteenth Amendment, Section 1 (excerpt), U.S. Constitution
That same-sex relationships would be openly practiced was not something considered at the time is irrelevant. Is it so hard to understand that the members of Congress who wrote and passed the Amendment recognized that they had a choice to limit it to discrimination based on race and deliberately chose language that could be interpreted more expansively? That “any person” actually means all of us and that “equal protect of the laws” means that the law has to treat all of us equally? Is that a contorted stretch, or simply a plain reading of straightforward language?
Contrast that the real activist judges: the five conservatives who in ruling in Citizens United actually had to primarily cite from the dissents from the cases they claimed as their precedents. From Justice John Paul Stevens’ scathing dissent in Citizens United:
“The majority’s approach to corporate electioneering marks a dramatic break from our past. Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907. We have unanimously concluded that this “reflects a permissible assessment of the dangers posed by those entities to the electoral process,” FEC v. National Right to Work Comm., and have accepted the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.” The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce. Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law including FEC v. Wisconsin Right to Life, McConnell v. FEC, FEC v. Beaumont, FEC v. Massachusetts Citizens for Life, and California Medical Assn. v. FEC.”
— Justice Stevens, with whom Justice Ginsburg , Justice Breyer, and Justice Sotomayor join, concurring in part and dissenting in part, in Citizens United v. Federal Election Commission
(I have shortened citations for readability, and the added emphases are my own.)
This isn’t the only time the Roberts Court has decided to run roughshod over hundreds of years of precedent, as noted by the New York Times, NPR, The Nation, and others. And if some have tried to argue that the Roberts Court has overturned fewer precedents than the Rehnquist Court, all that does is argue that a lot of the heavy lifting had already been done after decades of Republican appointments to the Supreme Court. But it still doesn’t make the case that liberal justices are more activist than conservative ones. Quite the contrary. It makes the case that the Roberts Court is part of a conservative pattern, not an anomaly.
A Divided Court in the Balance
With every election, we always talk about how important the Supreme Court is. But not every president ends up getting to make Supreme Court appointments (e.g., Carter), and some presidents end up only being able to replace justices of more-or-less similar ideologies (e.g., Reagan, Clinton, and so far Obama unless Garland’s nomination goes through). That can be useful for shoring up the court for future generations but doesn’t reshape it.
But this time it isn’t just theoretical. We already have a vacancy with a 4-4 divided court and the November election will determine which way it falls. We know for sure that a Trump victory will mean a 5-4 conservative court and a Clinton victory will mean a 5-4 liberal court, either with Garland’s confirmation or a new Clinton nomination.
But with tomorrow’s final post in this series, I’ll talk about how there could very well be another two to four more vacancies within the next few years, which could result in the last Supreme Court appointments for many years.
