Leftists Are Convulsing Over A Conservative Court. It Doesn’t Get Better. OK, Maybe It Will.

Conservatism,Constitution,Law,Republicans,The Courts

Quite correct: Republicans have had the chance to consolidate a conservative majority on the Supreme Court and … FAILED, REFUSED, or chose to break bread with the opposition, rather than keep the faith with the base and the original Constitution. As the author of this New York Times Review of Books essay suggests, the “mishaps” of previous republican presidents in appointing justices to the SCOTUS suggest “something less than full-throated judicial conservatism on their part.”

… In retrospect, it is remarkable that a strong conservative majority on the Court has not emerged before now. Since 1980, Republicans have held the presidency for twenty-two years and Democrats for sixteen. Ronald Reagan, who campaigned on the platform of choosing conservative judges, appointed three justices—Antonin Scalia, Sandra Day O’Connor, and Kennedy—and elevated William Rehnquist to the chief justiceship. That should have established conservative control. Yet O’Connor turned out to be a centrist, controlling the Court for a quarter-century by casting the decisive fifth vote in controversial cases. When she retired in 2006, Kennedy assumed her position as the swing justice and unexpectedly emerged as a liberal hero, voting, for example, to extend constitutional rights to detainees in Guantánamo Bay and marriage rights to same-sex couples.

George H.W. Bush also had the chance to consolidate a conservative majority. He appointed Thomas to replace Thurgood Marshall but also replaced William Brennan with David Souter, who underwent a subtle yet significant evolution from Burkean conservative to Burkean liberal. Bill Clinton, George W. Bush, and Barack Obama each got two justices confirmed, which maintained the Court’s balance. That conservative control has been so long in coming reflects either miscalculation by Reagan and George H.W. Bush or (more likely) something less than full-throated judicial conservatism on their part. …

… THE REST IN “Tipping the Scales by Noah Feldman.”