Brief History of the Federal Courts' Politicization
I'm writing a two part series on how Democrats can respond to McConnell's stacking of the federal courts. In this first part, I briefly discuss how we got to this place to begin with.
Thanks to Mitch McConnell’s and Republicans’ shenanigans and chicanery, the Republican Party’s far rightwing, religious nutjobs have captured our federal courts. Since the 1960s, Republicans have made control of the federal courts an electoral issue for their side, and with that at their winds, they have played extreme hardball against Democrats to force control of the courts. The current “judicial wars”, as Ross Douthat calls it, began in 1968. That year, liberal Chief Justice Earl Warren had announced his retirement, and he expected President Lyndon Baines Johnson and the then overwhelmingly Democratic Senate to quickly nominate and confirm a successor for his position. Of course, things did not go as planned. President Johnson nominated sitting Associate Justice Abe Fortas to be Chief and Fifth Circuit (then the most liberal of the circuit courts in the country) Judge Homer Thornberry to take Fortas’ vacated Associate Justice seat.
This all happened in the aftermath of the Warren Court’s use of dramatic judicial power to establish and advance an unabashed liberal agenda from the judiciary. The judiciary, under Chief Justice Earl Warren’s helm, expanded the rights of criminal defendants (Miranda v. Arizona, Mapp v. Ohio, Gideon v. Wainright, Terry v. Ohio), ordered the equal apportionment of Congress and state legislatures (Baker v. Carr, Wesberry v. Sanders, Reynolds v. Sims), found a right to privacy and private use of contraception (Griswold v. Connecticut), prohibited sanctioned prayer in public schools (Engel v. Vitale), legalized interracial marriage (Loving v. Virginia), and ordered the desegregation of public schools (Brown v. Board of Education of Topeka) by overturning the infamous Plessy v. Ferguson. As a liberal, I love all of these, and I do believe that all of this is protected by the US Constitution. However, naturally, there was an extreme and severe backlash against the Warren Court – especially in the South among paleoconservatives.
As President Johnson was extremely unpopular at this point, he had no political capital left in order to strongarm the Democratic Senate (dominated by Southern Democrats including Judiciary Committee Chair James Eastland of Mississippi) to force his nominations through. In the middle of an election year with potentially two Supreme Court seats up for grabs (and majority control of the Supreme Court), conservatives led by the Republican nominee Richard Nixon pounced. Nixon was the first Republican president after the turn of the 20th Century to actively campaign against the Supreme Court and the federal judiciary at large. The usual maxims we hear from Republicans every election these days, e.g. “judicial activism”, were first articulated and popularized by Nixon and his team. This happened simultaneously to the Republicans embracing the racist “Southern Strategy” where they would break up the Solid South through appeals to racial dog whistles. Combined with the continued anger felt by Southern conservatives against Brown v. Board of Education, this provided the perfect situation for Nixon to take the South away from Democrats, and Nixon proceeded to win multiple formerly Solid South states for the first time for Republicans since the Civil War.
By making this an ultimate campaign issue, Nixon encouraged conservative Senators of both Parties to defeat the nomination of Fortas to be Chief Justice. Southern Democrats and Republicans heeded the call and defeated Fortas’ nomination. With Fortas’ Chief Justice nomination ending in defeat, Johnson’s nomination of Thornberry was rendered moot, and both judges returned to their contemporary seats. Nixon would then go on to win the presidential election with a 0.7-point margin bare plurality due to the two-way split in the Democratic Party’s candidates. As soon as Nixon was inaugurated, he set his sights on the Supreme Court. Chief Justice Warren had promised to retire as soon as his replacement was confirmed, and he indicated all intentions of keeping that promise. Before Nixon nominated a Chief Justice, though, he set his sights on eliminating Justice Fortas from the Supreme Court for good. To do this, he took advantage of antisemitic and completely unfounded attacks against Justice Fortas’ character.
Without getting too far into the fabricated allegations, the gist of them is that there were bare ethics charges against Justice Fortas for accepting money away from his judicial salary, which itself was not illegal. What the charge boiled down to was essentially, “This Jew is using his seat to only make money and control the nation because he’s power hungry.” Nixon’s antisemitism is legendary, and there has been plenty of reporting about this. That Nixon set his sights on the Supreme Court’s only sitting Jew is context that simply cannot be ignored no matter what Republicans say and claim even to this day. With this fabricated charge circulating through the media, Nixon turned to the Justice Department. Under his orders, the Assistant Attorney General for the Office of Legal Counsel wrote a memo that argued that opening a criminal investigation and potentially indictment against a sitting Supreme Court Justice was both legal and constitutional. Personally, I entirely disagree and believe that such a move violates both statutory judicial immunity and the Constitution’s separation of powers, but I am no one. The person who wrote that memo: William Rehnquist.
With a looming DOJ criminal indictment on baseless, fraudulent, and antisemitic charges over his head, Justice Fortas resigned. Adding in the imminent opening of the Chief Justice seat, Nixon was able to flip control of the Supreme Court to conservatives for the first time since the early-1930s. Nixon then teamed up with the Conservative Coalition of Southern Democrats and Conservative Republicans in the Senate to force in (at the time) archconservatives Warren Burger into the Chief Justice seat and Harry Blackmun into Fortas’ vacated Associate Justice seat. Since then, the US Supreme Court has been moving further and further to the right as time as has gone on. Republicans love to point to the defeat of Reagan nominee Robert Bork in 1983 as the beginning of the “judicial wars”, but this is patently, completely, and entirely false. First, it was not the defeat of Bork which started the “judicial wars”, and it was not Democrats who started the “judicial wars”. The “judicial wars” began with Republican President Richard Nixon, arguably illegally and unconstitutionally, forcing off sitting Justice Fortas off the US Supreme Court.
Since 1969, every single escalation in the “judicial wars” has come from Republicans. Nixon got to appoint a staggering four Justices to the Supreme Court, including the aforementioned William Rehnquist. For all that Republicans complain about the way Bork was treated, Bork got a confirmation hearing and a vote on the floor of the Senate. Fortas was afforded neither, merely fabricated antisemitic charges. During President Carter’s term, there was not a single Supreme Court vacancy, so there was not a single Democratic appointment to the US Supreme Court from President Johnson’s appointment of Associate Justice Thurgood Marshall in 1967 until President Bill Clinton’s appointment of Associate Justice Ruth Bader Ginsburg in 1993. No Chief Justice has been appointed by a Democrat since President Harry Truman appointed Chief Justice Fred Vinson in 1946. The long story of Republican intransigence on judicial appointments is too detailed and infuriating to recount, and it would take more time than is worth this column. I will end my recount of this ignominious history of Republican intransigence by remembering McConnell’s disgusting actions with Supreme Court vacancies 2016-2020.
Upon President Obama’s nomination of Judge Merrick Garland to fill the seat vacated due to Antonin Scalia’s death, McConnell said, “The American people are perfectly capable of having their say on this issue, so let's give them a voice. Let's let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.” Several Republican Senators even said that if Hillary Clinton won the election, they would keep the Scalia seat vacant until a Republican won the White House regardless of how long it took. After Trump won the election on a technicality through the electoral college without the mandate of “the American people”, McConnell forced through Neil Gorsuch’s confirmation in 2017 after nuking the filibuster for Supreme Court nominations. In 2018, McConnell forced through Brett Kavanaugh’s confirmation over at least two credible accusations of sexual assault and/or misconduct by Dr. Christine Blasey Ford and Deborah Ramirez. This all culminates in his disgusting, terrible hypocrisy on the day of Justice Ruth Bader Ginsburg’s death where he promised that Trump’s nominee would be confirmed while entirely disregarding the fact that the election was less than two months away and that over 100 million people had already voted up until that point. McConnell and Senate Republicans specifically spit on the memory of Justice Ginsburg and her dying words (“My most fervent wish is that I will not be replaced until a new president is installed.”) by forcing through the far-rightwing religious nutjob Amy Barrett onto the US Supreme Court to specifically destroy everything Justice Ginsburg spent her life fighting for, which she is happily doing.
As a side note, it should be noted that for all that Republicans cited Harry Reid’s “precedent” of nuking the lower court filibuster in 2013, the idea of nuking the judicial filibuster was actually put into common parlance and was almost done in 2005 by Republicans. Frustrated by the fact that Democrats were paying back the favor to Republicans’ actions under the Clinton presidency through multiple filibusters of judicial nominees by George W. Bush, then Senate Majority Leader Bill Frist and then Senate Majority Whip Mitch McConnell were the first ones who threatened (and almost followed through on the threat) of using the so-called “nuclear option” to eliminate the judicial filibuster. This was forestalled by the Gang of 14, which included seven conservative and institutionalist Democrats who agreed to vote for cloture on Bush’s judicial nominations – thereby temporarily halting the nuclear option’s use. After President Obama was inaugurated, McConnell and Senate Republicans took to complete, total, and unencumbered obstruction. They filibustered everything, and McConnell even once filibustered his own bill – something no Democrat under any Republican President and Republican Senate had ever done.
Not only that, but Republicans also aggressively used the blue slip process to block President Obama’s nominations to courts around the country by having incumbent Republican Senators abuse the process to veto every single nomination. In addition, Republicans insisted that Democrats dispense Senate tradition of voting on district court nominees in groups to expedite the process; Republicans insisted that every single nominee would get an individual roll-call vote on the floor, which prevented President Obama from having nearly as many confirmations as Republican Presidents and prevented the Democratic Senate from doing anything of note since every single nomination required at least thirty hours of debate even after the nuking of the rule. Of course, the second Trump wins the White House (again, on a technically and without a mandate from “the American people”) and McConnell maintains control of the Senate, they nuke the Supreme Court filibuster (as McConnell had been itching to do since 2005), eliminate the blue slip process for circuit court nominees, and utilized the nuclear option again to restrict debate on judicial nominations from thirty hours to two hours. The hypocrisy and intransigence of Republican know no bounds, and they deserve to be condemned into the dustbin of history for all the destruction they have wrought on the America’s governing institutions, especially the federal courts.
Why do Republicans do this? They focus on social conservatism, especially “religious freedom” and the ultimate goal of overturning Roe v. Wade in the campaign season, but what is the actual reason behind their focus on the courts? Forget what motivates the voters of the Republican Party’s base to be energized about the courts because that much is obvious; they only care about abortion and religion. Why do the Republican Establishment and the Republican Party’s Elites care about the courts? That is the real question. The answer lies in something known as the “Powell Memo”.
Lewis Powell was an attorney for the cigarette companies in the 1960s and 1970s. He was part of the conservative backlash to the Warren Court, but instead of being driven by the social issues, his motivation and backlash came against the American consumer movement and focused on economic issues. Powell felt that the government (and the courts) had gone too far in favor of protecting the American consumer and had diminished and attacked American enterprise and business too much. Naturally, Powell found friends in the US Chamber of Commerce, and he wrote a secret memo to the Chamber and its Republican allies (including Richard Nixon when he was President). The memo pushed American business to fight back aggressively against the supposedly creeping advance of socialism and communism in the country by engaging the courts to assert that corporations have “human rights”. The goal of the business community was to revive the long-discredited “Nondelegation Doctrine” and use it to aggressively dismantle the “administrative state” – that is, the regulatory agencies such as the FDA, FAA, FTC, etc.
Nixon in his infinite wisdom decided that this corrupt man had enough integrity to be fit to be a supreme court judge and appointed him. Since the 1970s, even though the Republican base has been motivated to vote on the courts due to social issues (chiefly abortion and religion), the reason the Republican infrastructure has actually emphasized the courts and forced Federalist Society idealogues onto the federal judiciary is to destroy the Square Deal, the New Freedom, the New Deal, the Fair Deal, the New Frontier, and the Great Society. Republicans, conservatives, and business interests would never have been able to repeal these extremely popular government initiatives through Congress due to political constraints, so they turned to the unelected federal judiciary to destroy the government’s institutions to protect non-wealthy Americans.
To do this, they created the “constitutional theory” of “Originalism” in the 1970s, led by people such as Robert Bork and Antonin Scalia. Up until the 1970s, Originalism was never considered to be credible source of constitutional law, but because wealthy conservatives needed a convenient way to revive the doctrine of Nondelegation, they couched it in something that pulled at the strings of American patriotism (“the Founding Fathers knew best, and we should stick solely to their meaning of the Constitution”), which could be easily packaged on the campaign trail. Big Business has all but completely achieved its objective of destroying all statutory protection of non-wealthy Americans. This has driven Republicans to commit all the procedural violence and chicanery over the last six decades which they have done in order to take over the federal courts, up to and including dancing in jubilation on the grave of Justice Ruth Bader Ginsburg.
As much as Republicans and conservatives complain about “liberal judicial activism”, they are the ones who actually believe in and want “judicial activism”. They have been trying to destroy all protections of Americans since the New Deal, and since the 1970s, they have been on a long march to success. For all that liberals and Democrats celebrate Obergefell v. Hodges, we need to recognize that for every single liberal social success we find in the courts, there are tens of losses we have suffered (Janus v. AFSCME, Citizens United v. FEC, Brnovich v. DNC) on non-social issues. We liberals must embrace the politicization of the federal courts that Republicans have done since the 1970s. We must fight fire with fire, or we will be burnt alive. In fact, we already have lost a lot. Also, for all that people try to pretend that the federal courts are supposed to be (or ever have been) “apolitical” or “above the partisan fray”, none of this is true, and it has never been true, dating all the way back to the institution of the US Constitution in 1789.
Focusing on the Supreme Court, Congress has changed the size of it seven times through history, every single time for partisan and political reasons. After the Federalist President John Adams lost his reelection bid to Democratic-Republican Thomas Jefferson in 1800, the Federalist Congress immediately passed, for partisan reasons, the Judiciary Act of 1801, the infamous Midnight Judges Act, which decreased the size of the supreme court from six to five upon the next vacancy to prevent Jefferson (and Democratic-Republicans) from getting any appointment. Once Jefferson and his Democratic-Republican allies took their oaths of office, they immediately repealed the Judiciary Act of 1801 and increased the size back to six for partisan reasons, and for good measure, they shutdown the supreme court to prevent it from hearing any cases or issuing any decisions for two years. In 1807, on his way out, Jefferson’s Democratic-Republican allies in Congress increased the size of the supreme court again, to seven, in order to cement Jefferson’s (and Democratic-Republicans’) control of it.
In 1837, Democrats led by President Andrew Jackson increased the size again to nine in order to allow Jackson to take over the court. In 1863 as the Civil War was going on, the Republican Congress sought to create a pro-Union (and anti-slavery) supreme court and increased the size to ten, immediately allowing Abraham Lincoln to appoint an additional three judges (one of whom was Lincoln's campaign manager for those who are keeping track of the politicization). After Lincoln was assassinated and Democrat Andrew Johnson became President, the Republican supermajorities in Congress overrode his veto and decreased the size to seven to prevent him from getting any appointments. Then, once Republican Ulysses Grant became President, the Republican Congress once again increased the size of the supreme court to nine in 1869. For almost a century after the Constitution’s institution, Congress routinely changed the size of the supreme court for partisan reasons. If any side (or Party) were to do the same today, it would be no different. There is nothing “apolitical” or “nonpartisan” about the federal courts, and there never has been.
So for all the fury Democrats currently have against Republican chicanery, the fact of the matter is that the federal courts have always been political prizes for the majority party – always. In that sense, McConnell’s ignominious actions were just the latest in a long, storied tradition of political majorities playing games with the federal courts, including the supreme court. For the last six decades or so, Republicans consistently had a strong and significant (sometimes up to 3:1) advantage on the question of which side’s voters cared more about the courts and judicial appointments – and who would withhold their votes if their political leaders crossed the base. This was best exemplified in 2016 when exit polls showed that among people who said that “supreme court appointments were the most important factor”, Trump won that group 56-41. For those who said that they were “an important factor”, it was a statistical tie with Hillary winning 48-47. However, post-2016, something has changed in the electorate.
After the disgusting debacle that was Kavanaugh’s forced installation onto the supreme court in 2018, the exit polls that year showed that Democrats had pulled even when it came to voters prioritizing judicial appointments. 55% of Democrats said that the installation of Kavanaugh (which 95% of them opposed) was “very important” while 47% of Republicans (which 90%+ supported) was “very important”, and 28% of voters of both parties said it was “somewhat important”. Also in 2018, voters disapproved of Trump’s and Republicans’ judicial nominations in a statistical tie at 50-49 disapprove to approve. However, this disguises something important: Democrats were more likely to punish politicians for judicial appointments than Republicans. Of those who approved of Republicans’ moves on judicial appointments, Republicans won them 87-11. Of those who disapproved, Democrats won them 91-8. At worst, Democratic voters pulled even with Republican voters in 2018 when it came to the importance of judicial appointments, and at best, they actually pulled ahead of Republicans.
Fast forward to 2020. In the aftermath of Justice Ruth Bader Ginsburg’s death, Republicans danced in jubilation on her grave and defied her dying with (which they had every legal right to do) and rushed Amy Barrett through the senate confirmation process to occupy the late Justice Ginsburg’s seat. Barrett was put on the court to undo and destroy everything Justice Ginsburg fought for in her entire life, and she has been doing just that. However, in the 2020 election, with this in mind, court politics have completely flipped. Democrats pulled a statistical tie with Republicans among those who said that “supreme court appointments are the most important factor” where Trump led 51-48, but among those who said that it was “an important factor”, Biden demolished Trump 54-45. Overall, for voters who prioritized judicial appointments, Biden won a comfortable six-point margin of them 52-46.
The fury of the Democratic base has been latent and quiet for some time, but losing Justice Ginsburg to a religious sycophant was the straw that broke the camel’s back for us. In the fifteen hours after Justice Ginsburg’s death, ActBlue processed a staggering $45 million, an all-time record. In the two weeks after Justice Ginsburg’s death, ActBlue processed over $500 million with an average of $47 per donation, totaling to about 10.5 million individual donations. It is no longer Republicans who have a political advantage on the issue of the federal judiciary; it is now Democrats who have a decisive advantage, both in terms of voting base and financially. The pro-court packing group Take Back The Court published research in February 2020 (well before Justice Ginsburg’s death) that showed court expansion would not have any negative impact on Democrats’ electoral chances. The idea was considered but not really put to the test – until November 2020. The 2020 general election showed us that even in the Republicans’ largest and most historic turnout operation, Democrats still won on the issue of judicial appointments.
So with all this, the question is now the following: What should Democrats do about the federal courts? The obvious answer is court packing, but there are a multitude of other options as well that are not often discussed. In the next piece, I intend to go through and detail some of these options. One thing to note here is the difference between an “apolitical judiciary”, “judicial independence”, and “judicial supremacy”. An “apolitical judiciary” is the idea that courts (and judges) are entirely independent of politics, and this has never been true in this nation. Indeed, this is unconstitutional because politicians are the ones who appoint judges in this nation. “Judicial independence” is the idea that the judiciary should have no influence from the other branches of government, meaning that no matter what decision the courts make, there is neither political backing of the decision nor political backlash to it. This is plainly not the case in the United States, and this never has been the case, going all the way back to Marbury v. Madison, which was a political decision by Chief Justice John Marshall that had the federal courts stand down in the face of presidential intimidation to preserve their reputation. The last idea is “judicial supremacy”, which is closely tied to the idea of “judicial review”. “Judicial supremacy” is the idea that in a constitutional system, it is judges who decide what the ultimate meaning of the constitution is, and once a decision has been made by the judges, all other branches of the government, and indeed everyone else entirely, are required to follow it. Of these three ideas, the only one which actually exists in the United States is the last one, Judicial Supremacy. However, American judicial supremacy rests entirely on the willingness of everyone and every institution to follow the edicts of the courts; the courts have no independent mechanism of enforcement. This is where the multiple openings exist for Democrats to deal with the Republican-stacked federal judiciary.
Part II of this series can be found here: