It Was Naive Ever to Invest Too Much Hope in the Supreme Court

by Joseph Shieber

I remember as a child watching the made-for-tv movie Gideon’s Trumpet, based on the Anthony Lewis book of the same name about the Gideon v. Wainright (1963) Supreme Court decision that cemented the right to legal representation for criminal defendants. At the time, I was inspired by the idea that the Supreme Court was an arena that meted out justice as a reward for the rightness of one’s arguments — even if the person making those arguments was an untutored prison inmate.

That made-for-tv movie appeared in 1980. Within just a few years, that sort of adulatory attention to the Supreme Court and its role in guaranteeing civil liberties would seem quaint.

In a recent piece in The Bulwark, Adam J. White gives a representative account of the Republican perspective on what happened next:

Over three decades, Democratic Senators ratcheted up the stakes at every turn, with Republicans almost always playing catch-up. In 1987, barely one year after the Senate confirmed Antonin Scalia’s appointment to the Court with a 98-0 vote, Senator Kennedy and his colleagues blindsided the Reagan administration with an unprecedented declaration of total war against Robert Bork. Even after Bork, and the failed war on Clarence Thomas, Senate Republicans did not react in kind: they joined Senate Democrats in confirming Ruth Bader Ginsburg 96–3, and Stephen Breyer 87–9. Senate Republicans would not begin to return fire on Democratic nominations to the Supreme Court until 2009, after the heated Roberts and Alito hearings.

Whether White’s account is the result of ignorance or selective memory for rhetorical effect, the only way that the recent lack of comity over presidential Supreme Court nominations could even conceivably be charged to the Democrats is if we limit our historical survey to the past three decades.

In fact, it was Republicans in the 1960s who introduced combativeness into the Senate’s deliberations on Supreme Court nominations. For example, according to a New York Times account Strom Thurmond “questioned [Thurgood] Marshall for an hour on fine points of constitutional law and history” during Marshall’s 1967 Senate confirmation hearing, a move that — certainly in retrospect — would seem like Salieri quizzing Mozart on the fine points of musical composition and history.

Indeed, as Andrew Hamm writes at SCOTUSblog, the Thurgood Marshall confirmation (for which 20 senators abstained from voting, with another 11 voting in opposition) was only a prelude to the fight over Lyndon Johnson’s nomination of Abe Fortas to replace Earl Warren as Chief Justice in 1968.

Relying on an article by Robert David Johnson in the Journal of Supreme Court History, “Lyndon B. Johnson and the Fortas Nomination,” Hamm reminds us that, before the fight over Fortas’s nomination,

The Senate had never attempted to filibuster a Supreme Court nominee since the 1917 establishment of the cloture rule, and after the “Court-packing fight” of 1937, the Senate had confirmed twenty-two consecutive nominees – fifteen by voice vote.

As Hamm notes, quoting from Johnson’s research, it was Republicans — aided by the parliamentary strategies of Strom Thurmond — who introduced a different, and more combative, approach to the consideration of Supreme Court nominees:

This new approach stemmed in part from significant public backlash against the Warren Court for its “highly unpopular crime-related decisions, notably Miranda v. Arizona.” Partly as a result of the negative perception of these cases, senators were considering crime-control bills, and Richard Nixon – the leading Republican presidential candidate – was running largely on a law-and-order platform.

A former Senate majority leader, Lyndon Johnson was himself a master procedural tactician, yet opposition Republicans in the Senate Judiciary Committee would outmaneuver him and his allies – a “bunch of dupes” was the president’s self-deprecating phrase in hindsight. Thurmond refused to waive – as was typically done – a rule prohibiting committee meetings while the Senate was in session on the floor. A forgotten rule that Republicans resurrected allowed for a week’s delay. Other strategic absences denied the committee the quorums necessary to meet.

Of course, you might think that my own suggestion that Republicans are ultimately at fault for the weaponization of Senate confirmation hearings of Supreme Court nominees is itself just a product of my own biased perspective. I’m sympathetic to that worry. In fact, I am always distrustful of my own positions on politically charged questions for fear that I’m blinded by my own bias.

There are at least two reasons why I don’t think that’s the case here.

First, there’s the record that, as Hamm points out, for most of the 20th century up to the Johnson administration there had been little drama in Senate Supreme Court confirmation hearings.

Second, there’s the fact that, prior to the Warren court, there was actually little reason for thinking that the Supreme Court would be an arena worth fighting over.

Prior to the Warren court, conservatives didn’t have to fight to “regain” control of the Supreme Court — because they’d always possessed it! And prior to the Warren court, progressives wouldn’t have thought of the Supreme Court as an agent of civil liberty, because it so rarely — if ever! — had been. That’s because, prior to the Warren court, the Supreme Court was the court of Lochner v. New York (1905) or Hammer v. Dagenhart (1918), even leaving aside the 19th century cases that neutered the Fourteenth Amendment, like the Civil Rights Cases (1883) or Plessy v. Ferguson (1896).

Indeed, when you look at the cases that romanticizers of the Supreme Court rhapsodize about, almost all of them came in the period from the mid-1950s since the mid-1970s — with the notable exception of recent cases expanding LBGTQ+ rights.

With the exception of that brief twenty year period, the history of the Supreme Court has largely been one of maintaining the privileges of propertied white (Christian) men. Given that, it’s little wonder that the Warren court provoked such a reaction on the part of conservatives seeking to reassert those privileges.

Learning about that larger history of the Supreme Court killed my youthfully naive impression of the court’s role in preserving civil liberties. And I’m not talking about cutting edge legal or constitutional history.

One summer, early in the George W. Bush administration, I picked up a used copy of Richard Kluger’s Simple Justice, an exhaustive account of the developments leading up to the Brown v. Board of Education (1954) decision.

In my now-vague recollection, Kluger tells the story as an optimistic one, in which the Supreme Court becomes one of the forces helping to bend the moral arc of the universe toward justice. As I read Kluger’s account, however, I found it depressing the extent to which the history of the Supreme Court, on the whole, is a backward-looking and reactionary one.

Given this, it strikes me as a mistake to fetishize the Supreme Court as an institution or to misperceive the recent battles over Supreme Court nominees as a sign of the degradation of public discourse.

Struggles for civil rights are political struggles. It was a mistake to think that there ever even could be an apolitical arena in which civil rights could simply emerge victorious through the power of the better argument.