Pendulum: A Brief History of the Supreme Court

pendulumnsFor those less familiar with the U.S. Supreme Court, this brief (and admittedly over-generalized) history of the Court might shed some light on why Republicans are pulling out all the stops to block President Obama’s nomination of Merrick Garland—and on why the upcoming election, not just for the presidency but also for control of the senate, is so historically pivotal. It is no exaggeration to say that 2016 could mark the dawn of a new era.

Generally speaking, the Supreme Court has swung like a pendulum through time, ideologically from right to left and back again. The 1890s to the 1930s (sometimes called the Lochner era) is generally considered a period when the Court was politically conservative. Then FDR was elected in 1932 and the conservative Court kept striking down pieces of FDR’s New Deal legislation. In response, FDR threatened to expand the number of justices on the Court to as many as 15. And even without his court-packing plan, FDR was able to appoint 8 justices to the Court in his first two terms. So, in the late 1930s, the Court began tilting leftward.

From the late 1930s through the 1960s the Court moved leftward, culminating in the progressive Warren Court, led by Chief Justice Earl Warren. The Warren Court issued iconic progressive decisions like Brown v. Board of Ed. (desegregation), Miranda v. Arizona (right to remain silent), Baker v. Carr (1 person, 1 vote), Mapp v. Ohio (exclusionary rule), and Griswold v. Connecticut (right to privacy)—just to name a few. But conservatives made “the liberal Warren Court” a campaign issue and, in his 1968 campaign for president, Richard Nixon attacked the Warren Court repeatedly.

LBJ decided not to run for reelection in 1968 because his popularity had suffered under his escalation of the Vietnam War, so Warren announced his retirement to give LBJ the opportunity to appoint his successor before leaving office. But Republicans objected to this move and blocked LBJ’s nomination of Abe Fortas as the new Chief. Nixon won the election—then, through a confluence of circumstances, Nixon was able not only to replace Chief Justice Warren with Chief Justice Burger, but also to make 3 additional appointments to the Court during his first term as president (including Justice Rehnquist). With those 4 appointments, the Court began tilting rightward in the 1970s.

Over the next few decades, the Court continued moving rightward as Reagan made 3 appointments (including Justice Scalia) and George H.W. Bush made 2 appointments (including Justice Thomas). And with George W. Bush’s appointment of Chief Justice Roberts and Justice Alito, the Court’s move rightward has culminated in the Roberts Court—which some have labeled the most conservative Court in history.

But then, in February 2016, Justice Scalia died. This presented Obama with the opportunity to replace Scalia with Garland—a change that would tilt the balance of the Court in a leftward direction for the first time in 45 years.

This is what is at stake. This is why Republicans are blocking Garland’s nomination—and why the 2016 election is so historically pivotal. The Court has swung like a pendulum from conservative (1890s to 1930s) to progressive (1930s to 1960s), to conservative (1970s to 2010s). And now 2016 could be the dawn of a new era, the beginning of a new swing toward progressivism.

But to get the swing started, Democrats might need to win more than just the presidency. If the Democrats win the presidency but the Republicans hold on to the senate, the Republicans can continue to block Garland and any other nominee that President Clinton might put forward—meaning we could be stuck with an 8-member Court for the foreseeable future. In fact, the Republicans could be hoping for Ginsburg (83) or Breyer (77) to step down, due to old age—then they could continue to block all Clinton nominees to preserve a 7-member Court that still has a conservative majority. Why not? After all, if they’re not losing elections in the senate, there might not be anything to stop them from doing so.