Comment: One pick won’t shift Supreme Court, but history has

By Orville Vernon Burton and Armand Derfner / Special To The Washington Post

President Biden’s plan to nominate federal Judge Ketanji Brown Jackson to replace liberal Justice Stephen Breyer seems unlikely to alter the Supreme Court’s ideological tilt, because the overall makeup of the court will continue to include six conservatives and three liberals. Yet as the deaths of justices Antonin Scalia and Ruth Bader Ginsburg demonstrated over the last six years, the court’s composition isn’t set in stone and politicians are increasingly trying to game the system to bolster support on the court for their own ideological positions.

When Scalia died suddenly in February 2016, President Barack Obama’s choice to replace him, moderate liberal Merrick Garland, seemed likely to flip the five-to-four conservative court to a five-to-four liberal one. But a Republican Senate refused even to hold a hearing on Garland’s nomination, on the theory that court vacancies that arise during presidential election years should remain unfilled until the next president takes office.

Four years later, however, when Ginsburg died in September 2020, less than two months before the presidential election, a Republican Senate confirmed President Donald Trump’s nomination of Amy Coney Barrett with lightning speed. Just like that, a potentially liberal court majority became the most conservative court since the 1920s or even the 1890s.

Democrats cried foul, accusing their opponents of hypocrisy, but in fact the Republicans had handled both nominations according to a uniform principle: if you have the votes, you don’t need to worry about a consistent theory.

This recent history spotlights the arbitrary process that we employ to select justices, which owes more to the health and political whims of individuals than to the will of the voters. But history also highlights the power of the political branches to exercise partisan control over the court’s composition for reasons that may or may not be related to the pursuit of justice.

This history goes back to the earliest days of the republic. In 1800, Thomas Jefferson’s Republican Party won a clean sweep of the presidency and both branches of Congress. It was the end of the Federalists as a national party; except at the Supreme Court, where lame-duck officials acted quickly to leave a long-lasting Federalist legacy. During the interregnum between Jefferson’s election and his inauguration, Chief Justice Oliver Ellsworth resigned, enabling the defeated president John Adams to nominate John Marshall to be chief justice. The lame-duck Federalist Senate confirmed Marshall. The new chief justice, a strong nationalist, went on to dominate the Supreme Court for 35 years while Jefferson and four more presidents watched in fuming frustration.

The outgoing Federalists also cut the number of justices from six to five to keep the incoming Democratic-Republicans from filling the first “vacancy.” The newcomers promptly restored the number to six.

Similar political maneuvering occurred again in 1866, after the Civil War, when the Republican Congress reduced the number of seats on the court from its high of 10 to seven, to prevent President Andrew Johnson, a white supremacist Democrat, from appointing justices who might block their Reconstruction efforts. Congress added back seats in 1869, after Republican Ulysses S. Grant was elected president, bringing the number of justices to the present nine.

Grant’s appointments produced instant change: the new majority reversed course on a crucial national issue in 1871, upholding the validity of “greenbacks” (paper money) issued during the Civil War, which the court had declared unconstitutional just a year before.

The most famous story about the court’s composition is, of course, President Franklin D. Roosevelt’s plan to create additional Supreme Court seats after a five-to-four reactionary majority ruled a succession of his New Deal programs unconstitutional. Amid the uproar over this plan, Justice Owen Roberts suddenly reversed his position and began voting to uphold Roosevelt’s liberal economic measures. This single change has sometimes been labeled “The Switch in Time that Saved Nine.”

But the crisis never would have occurred but for an earlier, almost unnoticed retirement, one that flipped a court seat ideologically. The firmly liberal Justice John Clarke was unhappy on the court, especially because of the antics of the obnoxious and personally offensive Justice James McReynolds. Worse yet, the court’s rigid seating arrangement meant that these two men sat next to each other for Clarke’s entire six years on the court. Finally, Clarke resigned in frustration. But that decision let conservative Republican President Warren Harding select Clarke’s successor. Harding’s choice, former senator George Sutherland, R-Utah, became the leader of the narrow reactionary majority that repeatedly struck down New Deal laws.

A change in the court’s composition also contributed to one of its most famous rulings, Brown v. Board of Education. In September 1953, just four weeks before the scheduled oral arguments in the school segregation cases, Chief Justice Fred Vinson died of a sudden heart attack at age 63. Most observers did not expect Vinson to rule segregation unconstitutional, let alone lead the court to a unanimous decision doing so. President Dwight D. Eisenhower chose Gov. Earl Warren, R-Calif., to replace Vinson, and Warren worked assiduously to produce the unanimous landmark ruling in 1954 that ended school segregation and signaled the rejection of Jim Crow.

The end of the storied liberal Warren Court was almost as sudden as its beginning. In 1968, Warren announced his retirement before the presidential election so Lyndon B. Johnson could choose his successor, rather than running the risk that a Republican might win the election; especially his longtime California nemesis, Richard Nixon. Johnson nominated Associate Justice Abe Fortas, another strong liberal, to become Chief Justice and chose a liberal appeals court judge, Homer Thornberry, to take Fortas’s seat.

But a coalition of Senate Republicans and conservative Southern Democrats latched onto ideological and ethical issues to torpedo Fortas’ nomination. With time running short, Johnson did not try another nominee, Nixon won the election and he chose conservative Warren Burger as chief justice. Nixon and his allies then applied pressure on Fortas to resign because of financial issues, and suddenly the most liberal court in history was gone, instead of being entrenched for decades by Johnson appointments.

That began a half century in which the Supreme Court got increasingly conservative. But there was one moment when the direction might have been stopped or reversed; with a single change.

In 1991, Thurgood Marshall retired. For years, Marshall promised to serve out his lifetime appointment, often joking, “I expect to die at the age of a hundred and ten, shot by a jealous husband.” But by 1991, his health had deteriorated, he found himself consistently in dissent, his good friend Justice William Brennan had retired and opinion polls forecast that President George H.W. Bush would win reelection in 1992. Marshall retired, and Bush replaced him with the extremely conservative Clarence Thomas. Yet Bill Clinton, not Bush, won the election and Marshall lived until four days after Clinton’s inauguration. If Marshall had been able to ignore or endure his health issues, Clinton would have replaced him with a fellow liberal.

It’s possible, indeed likely, that with a liberal on the court instead of Thomas, it might have flipped the Court’s 2000 decision in Bush v. Gore; which could have opened the door to Al Gore gaining a majority of the electoral vote and thus becoming president. Given that Bush appointed two conservative justices in his second term, a Gore presidency might well have reshaped the court. In the years since, the conservative justices have rendered momentous decisions on gun rights, campaign spending, reproductive freedom, the Voting Rights Act, affirmative action and more; virtually all by five-to-four votes.

The health and whims of individual justices can shape the ideology of the court for years to come, no matter which way the political winds blow. Since Johnson’s failed attempt to replace Earl Warren, the chief justiceship has passed from the conservative Burger to the even more conservative William Rehnquist and John Roberts.

This history suggests that the court will remain extremely conservative for a long time. Today’s conservative and reactionary justices are young, and justices’ average tenure is now roughly 25 years, twice as long as it used to be. But that may not be the whole story.

A court seemingly in control risks getting increasingly out of step with the country’s population, especially younger people. That could eventually prompt the political branches to rise up as they did in the past against a perceived out-of-touch Supreme Court and remake not only its composition but its structure, as it did regularly in the 19th century.

Orville Vernon Burton is co-author “Justice Deferred: Race and the Supreme Court.” He is the Judge Matthew J. Perry Jr. Distinguished Professor of history at Clemson University and emeritus university scholar and professor of History at the University of Illinois. Armand Derfner is coauthor of: “Justice Deferred: Race and the Supreme Court.” He is a civil rights lawyer who has handled Supreme Court voting rights cases since 1968, and is distinguished scholar in constitutional law at the Charleston School of Law.