The confirmation of Judge Brett Kavanaugh to the Supreme Court culminates a 50-year struggle by conservatives to gain control of the court and end 80 years of liberal judicial activism. This confirmation also brings to an end the Warren Court, named for former California governor Earl Warren, that stretched from his appointment in 1953 until his retirement 1969, but lived on through various successors until now.
Things move very slowly in the Supreme Court. Consider this, one of the “liberal” seats, that of current Justice Elena Kagan, has had just four occupants over the past 102 years: Louis Brandeis, appointed by President Wilson in 1916, William O. Douglas appointed by President Roosevelt in 1939, John Paul Stevens appointed by President Ford in 1975, and Kagan appointed by President Obama in 2010.
The Warren Court does not even begin with Warren’s 1953 appointment. It really begins in 1937 when President Franklin Roosevelt, fresh from his landslide re-election in 1936, tried to pack the conservative Supreme Court that was frustrating his New Deal programs with justices sympathetic to his programs.
The Court packing did not work, but beginning in 1938, the conservative justices began leaving the court and Roosevelt replaced each one with a loyal New Dealer. By the time he left office in 1945, Roosevelt had appointed eight justices; by the time President Harry Truman left office in 1953, he and Roosevelt had appointed every justice on the court.
At the 1952 Republican convention, so the story goes, California Gov. Warren had delivered his delegation to Dwight Eisenhower, who went on to win the nomination. But there was a hitch, in exchange Warren wanted the first vacancy on the Supreme Court and Eisenhower, knowing little about the court at the time, said fine.
President Eisenhower had been in office just seven months when Chief Justice Fred Vinson (the last Chief Justice to be appointed by a Democratic president, Harry Truman in 1946) died suddenly and Warren claimed his prize.
Warren had never served a day as a judge, but through his force of personality and political skills, he soon took control of the court, becoming without doubt the most influential jurist of the 20th Century.
Warren, who had been a moderate Republican governor of California, quickly became head of the court’s liberal “judicial expansion” wing, assisted by the staunch New Dealers Hugo Black, who served from 1937 to 1971, and William Douglas, who served from 1939 to 1975. The Warren wing was buttressed by liberal appointees of Presidents Eisenhower, Kennedy and Johnson. The “judicial restraint,” or conservative wing, never had more than two or three members in those days. It was headed by another New Deal appointee, Felix Frankfurter, who served from 1939 to 1962.
And then the political winds in America began to shift. A feeling that the court had been too liberal in criminal justice matters made it an issue in the 1968 presidential campaign. In November 1968, 50 years ago next month, Richard Nixon was elected president, and he promised to rein some of the liberalism of the Warren Court. He got his chance early in 1969 when Warren retired and Nixon appointed a conservative jurist, Warren Burger to replace him.
Nixon was able to appoint four justices and perhaps the best remembered today is Harry Blackmun who authored Roe v. Wade. But Nixon did make one appointment that had an historical impact. After a long struggle with the Democratic Senate, in 1971 Nixon appointed his own assistant attorney general, a man he barely knew, named William Rehnquist to the court.
Rehnquist turned out to be both a brilliant jurist and astute political strategist. Slowly he developed a legal argument that the New Deal-Warren Court had gone too far in its interpretation of the Commerce Clause that allowed the federal government unlimited economic regulation. He also wrote the dissent in Roe v Wade insisting the court was usurping decisions that should be left to the political process.
Rehnquist served on the court from 1971 until 2005, the last two decades as chief justice. But his desire to roll back the New Deal-Warren Court was held in check by other Republican appointed justices that did not want to go that far.
When Rehnquist died in 2005 he really had only two justices that fully bought his theory of an “originalist” interpretation of the constitution, Justices Antonin Scalia and Clarence Thomas. But President George W. Bush understood the Rehnquist thrust and he appointed two more, Chief Justice John Roberts and Samuel Alito.
That’s how the court stood for the next decade, although Justice Anthony Kennedy, an appointee of President Ronald Reagan, agreed with the Rehnquist wing on most economic issues, but not necessarily on social issues. Now with Justice Kavanaugh we have someone who appears to fully embrace the Rehnquist camp. One of Kavanaugh’s most important statements is his defense of the Rehnquist dissent in Roe v. Wade.
It is remarkable how long this struggle has lasted and how slowly the court has changed. In the past 50 years we have had just three chief justices: Burger from 1969 to 1986, Rehnquist from 1986 to 2005, and John Roberts, since 2005. And even more remarkable, over these 50 years Democratic presidents have appointed exactly four justices to the court, and they are all serving today: Ruth Bader Ginsburg and Stephen Breyer, by President Clinton, and Sonia Sotomayor and Kagan by President Obama.
Democrats have learned this year, to their horror, how effective was the Republican effort over the past half century, and especially the past two years, to take control of the court. Much of the ruckus over the Kavanaugh nomination was really a Democratic backlash against their own incompetence in failing to elect Hillary Clinton president in 2016.
President Trump has now had two Supreme Court appointees, and no Democratic president since Truman left office has appointed more than two in his term. But Trump could easily get more appointees, and the oldest justices now are from the court’s liberal wing, Ginsburg at 85, Breyer at 80. Republicans will probably hold the U.S. Senate this November; that means Trump could confirm anyone he appoints between now and 2021. If he wins re-election in 2020, he will get more appointments; he could have a greater influence on the court than any president since Roosevelt and the New Deal.
Donald Trump’s legacy may be just four words: United States Supreme Court.