If nothing else, the Supreme Court’s most recent decisions should shatter whatever remaining illusions of what courts are likely to do for them for the foreseeable future, even when controlled by Republican appointees.
The Supreme Court isn’t going to be a major force in restoring limited government or cutting federal authority down to constitutional size. Yes, you might see some protection of property rights, like Kelo, or spending money on behalf of political speech, such as Citizens United. The courts aren’t totally useless in protecting civil liberties. Some libertarians and conservatives will even cheer the gay marriage decision.
Complete coverage of the gay marriage ruling
But since FDR’s court-packing scheme was even threatened, you’d be hard-pressed to find a major expansion of the welfare state that was blocked on constitutional grounds by the Supreme Court. Two Obamacare rulings later, the second one rejecting a fairly straightforward reading of the text of law, should remind us that isn’t going to change anytime soon even with a Republican majority on the high court.
Social conservatives in particular shouldn’t expect much from the Supreme Court. Every four years, Republican presidential candidates — especially ones who aren’t that socially conservative themselves — tell them they should put whatever policy differences they have aside because a Republican president will appoint conservative judges.
That’s true, but the impact is much more limited than advertised. Elections matter and so do judges. If Al Gore and John Kerry had been nominating justices instead of George W. Bush, Hobby Lobby would certainly have gone the wrong way. Without the justices nominated by Ronald Reagan and George H.W. Bush, both Supreme Court decisions on partial-birth abortion would have been unfavorable to bans, not just one.
But on the biggest questions that have motivated social conservatives, from school prayer to abortion to gay marriage, conservative judges have at best been able to nibble at the edges of liberal precedent. From Planned Parenthood v. Casey, upholding Roe v. Wade, to Friday’s decision discovering a constitutional right to gay marriage, Supreme Courts dominated by Republican appointees have frequently entrenched liberal court decisions. What major socially liberal decision has ever been overturned, as opposed to merely curtailed somewhat?
In fact, it is worth noting Earl Warren, William Brennan, Harry Blackmun, John Paul Stevens and David Souter, some of the most liberal justices on the Supreme Court, were all nominate by Republican presidents. Sandra Day O’Connor and Anthony Kennedy have mostly voted with conservative bloc, but have sided with liberals on some big decisions. John Roberts has been an even more reliable conservative vote, but his main judicial legacy may be twice rescuing Obamacare from itself.
Most of the Republican presidential candidates are arguing that restocking the Supreme Court is the way to fight back against the decisions conservatives dislike. But this tactic has never worked, even when Republicans have held the White House and Congress, and even when significant effort has been made to avoid liberal “stealth” nominees. (Has there been a stealth conservative nominee to the Supreme Court since JFK tapped Byron White?)
Clarence Thomas is likely an anomaly. It is doubtful a Republican could today get a justice much more conservative than Kennedy confirmed by a Democratic Senate. And Thomas was confirmed by a narrow margin at great personal cost. Half the Democrats in the Senate voted against Roberts, including Barack Obama. Only ten mostly conservative Democrats voted for Thomas. So confirming reliably conservative justices will require a Republican Senate as well as White House, and even that seems to come with a high margin of error.
None of this is to say that I don’t think the judicial appointments of a Republican president would be better than Hillary Clinton’s. But if Reagan couldn’t restock the Supreme Court, I’m not holding my breath for what lesser Reaganites can accomplish.
