Our First Chance For a Liberal Supreme Court in Half a Century

A surprising number of the younger “Bernie or Bust” people I’ve spoken with who feel that a Trump presidency would usher in a political revolution within four years just shrug when I warn them about the dangers of Trump nominees to the Supreme Court. Perhaps that’s because they have no real memories of what a liberal Supreme Court looks like. 

I’m almost 50 and even I’m too young to have really witnessed it first-hand.

When Chief Justice Earl Warren retired from the Supreme Court in 1968 and Associate Justice Abe Fortas was forced to resign the next year in an ethics scandal, and then both were replaced by newly-elected Republican President Richard Nixon in 1969, it arguably ended the most progressive era in the history of the Supreme Court. That was 48 years ago, the year I was born. During the sixteen years that Warren served as Chief Justice, the Supreme Court tackled issues of racial segregation, voting and redistricting, criminal procedure, free speech, governmental establishment of religion, the free exercise of religion, reproductive rights and the right to privacy, and cruel and unusual punishment. We haven’t seen an era like that in all the decades since.

The sixteen appointments made to the Supreme Court made since Warren’s retirement did much to shift the ideological balance of the court more conservatively. (Scalia’s replacement, whether it be Obama’s choice of Merrick Garland or another nominee chosen by Hillary Clinton or Donald Trump after the election, will be the seventeenth appointment since Warren’s retirement.)

Presidential Appointments

• Of these sixteen justices replaced since Warren’s retirement, twelve (75%) were appointed by Republican Presidents while only four (25%) were appointed by Democratic Presidents.
• Twelve of the sixteen appointments (75%) were made during the appointing president’s first or only term in office, while only four were made during a president’s second term.
• Nine (56%) were appointed by a President of the same party as the president who made the vacant justice’s appointment, while only seven (44%) were made by a President of the opposite party.
• Of the opposite party replacements, three were made by Democratic Presidents appointing replacements for Republican appointees, while four were made by Republican Presidents replacing justices appointed by Democrats.
• Nixon, who served less than five and a half years of the two terms he was elected to, appointed four of these sixteen justices, more than any other president. All of them were appointed during his first term.
• Because there were no vacancies on the court during Jimmy Carter’s presidency, Bill Clinton’s appointment of Ruth Bader Ginsburg was the first Supreme Court appointment by a Democrat in 26 years.
• The three Republican appointees replaced by Democratic Presidents were all justices who ended up being more moderate or liberal than expected. Their subsequent replacement by Democratic Presidents therefore did not significantly shift the philosophical balance of the court from conservative back to liberal.

The Martin-Quinn Scale

Researchers Andrew Martin and Kevin Quinn have compared the last 45 Supreme Court justices against one another to assess their relative conservatism or liberalism by evaluating how each ruled on contested Supreme Court decisions. Each justice is scored annually, which allows researchers to see how a justice’s ideology can drift over time. By averaging their annual scores, we’re able to rank the justices on a relative scale listed from most conservative to most liberal in order to compare their careers to their peers and their predecessors.

The post_mn Average is beyond my ability to explain; you’ll have to check the research on Martin and Quinn’s website to learn more about that. It should be sufficient to just say that a higher score is more conservative while a lower score, particularly a negative number, is more liberal. The Ideology is my attempt to translate the M-Q scale into a political vocabulary. Justices marked in bold  italics are incumbent members of the court. 

rANK	Name	tENURE	aPPT. bY	POST_MN aVG.	iDEOLOGY
1	Clarence Thomas	1991—	Bush 41 (R)	3.473	Very Conservative
2	William Rehnquist	1972-2005	Nixon * (R)	2.844	Very Conservative
3	James Clark McReynolds	1914-1941	Wilson (D)	2.660	Very Conservative
4	Antonin Scalia	1986-2016	Reagan (R)	2.451	Very Conservative
5	George Sutherland	1922-1938	Harding (R)	2.055	Very Conservative
6	Pierce Butler	1922-1939	Harding (R)	1.955	Conservative
7	Samuel Alito	2006—	Bush 43 (R)	1.885	Conservative
8	Warren Berger	1969-1986	Nixon (R)	1.848	Conservative
9	John Marshall Harlan II	1955-1971	Eisenhower (R)	1.638	Conservative
10	Owen Roberts	1930-1945	Hoover (R)	1.596	Conservative
11	John Roberts	2005—	Bush 43 (R)	1.304	Conservative
12	Charles Whittaker	1957-1962	Eisenhower (R)	1.256	Conservative
13	Sherman Minton	1949-1956	Truman (D)	1.104	Conservative
14	Harold Hitz Burton	1945-1958	Truman (D)	1.024	Conservative
15	Fred M. Vinson	1946-1953	Truman (D)	1.005	Conservative
16	Lewis Powell	1972-1987	Nixon (R)	0.935	Moderately Conservative
17	Sandra Day O’Connor	1981-2006	Reagan (R)	0.880	Moderately Conservative
18	Robert H. Jackson	1941-1954	FDR (D)	0.726	Moderately Conservative
19	Anthony Kennedy	1988—	Reagan (R)	0.676	Moderately Conservative
20	Potter Stewart	1958-1981	Eisenhower (R)	0.564	Moderately Conservative
21	Felix Frankfurter	1939-1962	FDR (D)	0.536	Moderately Conservative
22	Tom C. Clark	1949-1967	Truman (D)	0.486	Moderate
23	Byron White	1962-1993	Kennedy (D)	0.440	Moderate
24	Stanley Forman Reed	1938-1957	FDR (D)	0.363	Moderate
25	Charles Evans Hughes	1930-1941	Hoover (R)	0.097	Moderate
26	Harlan Stone	1941-1946	FDR (D)	-0.082	Moderate
27	Harry Blackmun	1970-1994	Nixon (R)	-0.115	Moderate
28	James F. Byrnes	1941-1942	FDR (D)	-0.196	Moderate
29	Louis Brandeis	1916-1939	Wilson (D)	-0.523	Moderately Liberal
30	Arthur Goldberg	1965-1968	Johnson (D)	-0.791	Moderately Liberal
31	David Souter	1990-2009	Bush 41 (R)	-0.927	Moderately Liberal
32	Earl Warren	1953-1969	Eisenhower (R)	-1.173	Moderately Liberal
33	Abe Fortas	1965-1969	Johnson (D)	-1.200	Moderately Liberal
34	Stephen Breyer	1994—	Clinton (D)	-1.271	Moderately Liberal
35	Wiley Blount Rutledge	1943-1949	FDR (D)	-1.395	Moderately Liberal
36	Frank Murphy	1940-1949	FDR (D)	-1.589	Liberal
37	Ruth Bader Ginsburg	1993—	Clinton (D)	-1.604	Liberal
38	Elena Kagan	2010—	Obama (D)	-1.663	Liberal
39	John Paul Stevens	1975-2010	Ford (R)	-1.719	Liberal
40	Benjamin N. Cardozo	1932-1938	Hoover (R)	-1.749	Liberal
41	Hugo Black	1937-1971	FDR (D)	-1.758	Liberal
42	Sonia Sotomayor	2009—	Obama (D)	-1.925	Liberal
43	William Brennan	1956-1990	Eisenhower (R)	-1.943	Liberal
44	Thurgood Marshall	1967-1991	Johnson (D)	-2.833	Very Liberal
45	William O. Douglas	1939-1975	FDR (D)	-4.121	Very Liberal

* Rehnquist was appointed as Associate Justice by President Nixon in 1972, but then elevated to Chief Justice by President Reagan in 1986.

Surprisingly, Clarence Thomas is rated as the court’s single most conservative justice ever rated, not only as a lifetime average but for each individual year every year since he was first appointed. Even more conservative than Rehnquist. Even more conservative than Scalia.

Ideological Shifts Because of These Appointments

• Using the Martin-Quinn scale to rate the justices and compare them to their predecessors, ten justices appointed since Warren’s retirement have been more conservative than the justices they replaced, while six have been more liberal. 
• Of the 45 Supreme Court justices evaluated on the Martin-Quinn scale since the 1930s, Clarence Thomas is rated as the single most conservative, even more so than Scalia and Rehnquist. And his appointment represented a seismic shift since the justice he replaced, Thurgood Marshall, was the second most liberal justice of the 45 evaluated justices.
• Of all of the justices appointed by Republicans, only two rank less conservative on the Martin-Quinn scale than the justice they replaced. In both cases, their scores are close enough to the justice they replaced that there are probably only a handful of cases where they ruled differently than their predecessor may have. (Rehnquist might have ruled differently than Roberts on the Affordable Care Act cases, for example, while Kennedy actually did rule differently on the Lawrence v. Texas sodomy case than Powell did in the Bowers v. Hardwick sodomy case.)

The Future of the Court After the 2016 Elections

• With Merrick Garland’s pending nomination to replace Scalia held up in the Senate, the 2016 Presidential election will determine the ideological future of the Supreme Court. Electing a Democratic President will result in a liberal 5-4 majority on the court, either with Garland or another nominee, for the first time since the Warren Court. Electing a Republican will allow Republicans in the Senate to scuttle the Garland nomination and allow a Republican President to lock in a conservative majority on the Supreme Court for another generation.
• If a Democrat is elected President in 2016, Ginsburg and Breyer are both likely to retire, allowing a majority of five liberal justices in their 60s or younger (likely three in their 50s or younger) to be locked in for twenty to thirty years. The odds of an older justice retiring increases by 168% when the incumbent president is in their first two years of office and of the same political party as the nominating president.
• In the much less likely event that either Kennedy and/or Thomas also leave the court under a Clinton presidency, that would allow for a 6-3 or an unprecedented 7-2 liberal majority on the court. 
• If both Kennedy and Thomas leave the court, the remaining justices are young enough that it’s conceivable that the makeup of the court will then remain unchanged for up to twenty years.

While the court had some progressive achievements in the 1970s, including a further expansion in contraceptive rights and the right to privacy, and ultimately the right to abortion in Roe v. Wade, the Berger Court was at best a transitional court as Nixon and then Reagan appointees prevented the level of progressive achievements of the Warren Court.

Tomorrow I’ll provide some perspective by contrasting the achievements of the liberal Warren Court with the rollbacks from of the conservative Roberts Court. In part three of my four-part series, I’ll look at the current members of the court and compare their nominating president’s intended impact against the justice’s actual impact, so that in the last part we can look at what the 2016 election may bring over the next four years and how that could impact the next twenty.