The Right is excited and the Left is terrified about who succeeds Justice Ruth Bader Ginsburg. And yet, as a historical matter, constitutional originalists should be very cautious in their expectations.
While the Republican Party purports to support limited government and the judges to do such limiting, the plain truth is that every single seat on the Supreme Court has been filled by a Republican president at some point in the last few decades. But rather than a 9-0 majority in favor of the Constitution’s original public meaning, we got President Dwight D. Eisenhower reflecting that he had only two regrets from being president and, unfortunately, they both sat on the Supreme Court. He wasn’t the only one with regrets.
Ike’s Earl Warren and William Brennan would oversee a constitutional revolution without the need of amendments, guns, or ballots: They apparently discovered that over a century of school prayer violated the First Amendment, they dramatically reshaped politics by curbing rural representation in pursuit of a principle that is not present in the text of the Constitution, and they conjured novel rights, especially for criminals. A third Ike appointment would inconveniently retire during the Kennedy administration — that’s the seat that Ginsburg would eventually hold and has just reopened. President Richard Nixon’s Harry Blackmun would author Roe v. Wade on his way to becoming a liberal leader. President Gerald Ford’s John Paul Stevens enshrined the regulatory leviathan with Chevron deference as he embraced a flexible, “living” Constitution. President George H.W. Bush’s David Souter lacked a paper trail but was promised by John Sununu to be a “home run.” He ended up batting for the other team.
Of 20 Supreme Court vacancies between 1953 and 1993, Republican presidents got to fill 16. The overall results are not encouraging and provide plenty of evidence that six Republican nominees don’t ensure a court majority for the Constitution’s original public meaning. Indeed, well into the 2000s, there were seven Republican nominees on the court, of whom two consistently voted with the liberals, two inconsistently voted with the liberals, and only three were relatively reliable. Today, of course, the Supreme Court enjoys the leadership of President George W. Bush appointee Chief Justice John Roberts, who concluded that a nationwide health insurance mandate was in line with the constitutional vision of a group of men who fought a superpower over the injustice of paying less than 3% of their income in taxes.
President Trump has taken this challenge seriously, but time will tell whether it pays off. Judges often don’t show their true colors until a few years in. The crucial aspect of this moment is for the Senate to convey to the president that the court requires a qualified textualist stalwart, all the better someone who is willing to enforce the Constitution rather than honor the latest crazy precedent deviating from it. We simply may not have the time for a Harriet Miers redo.
The late great Justice Antonin Scalia always insisted that the magic of the Constitution was not found in its Bill of Rights (much less their penumbra) but in our structure of government, where federal power is divided between coequal branches. That the federal government has so outgrown its constitutional restraints reveals that the clashing ambitions of Congress, president, and Supreme Court have not been enough. But the Senate did justice by the Constitution in denying its advice and consent in 2016 to a nominee unmoored by the text’s original public meaning. Today, senators can honor their oaths to protect the Constitution during their full terms in office by providing their advice and consent to a faithful textualist in the mold of Scalia.
Grant Starrett is a lawyer and real estate investor in Nashville, Tennessee. He is a graduate of Vanderbilt University Law School and has an undergraduate degree in history from Stanford University. He is president of the Nashville Lawyers Chapter of the Federalist Society.
