No Free Market at SCOTUS

Editors’ Note: The accompanying article by Adam Liptak about the Heritage Foundation’s plan to train federal law clerks complements this selection.

scalesRepublicans, especially its conservative branch, have espoused the “free market” principle for decades as the ideal dynamic for nurturing by competitive survival the best result, whether it be in economics or other endeavors. However, with respect to the role of the judiciary and its jurisprudence in our nation’s civic culture, in the view of conservatives, the free market is anathema. For at least six decades, since Brown v. Board of Education, they have bristled over the evolution of an alleged liberal metamorphosis of federal jurisprudence inconsistent with the Constitution. In this regard, President Eisenhower is reported to have said the appointment of Chief Justice Earl Warren to the Supreme Court in 1953 was a “mistake.” Brown was decided a short seven months following Warren’s elevation to the bench.

Upon his nomination in 1964 as the Republican party’s candidate for president, Sen. Barry Goldwater (AZ) gave political resonance in a war cry to followers: Moderation in the protection of liberty is no virtue; extremism in the defense of freedom is no vice. Ironically and unlike his more contemporary ideologues, Goldwater—with strong views about evangelicals—was quoted as saying “I think every good Christian ought to kick Falwell right in the ass,” for the preacher’s opposition to the appointment of Sandra Day O’Connor to the Supreme Court. Goldwater vehemently opposed the Civil Rights Act of 1964 as governmental “overreach.”

In 1969, Republican Richard Nixon nominated Republican Warren Burger to be Chief Justice, with a tacit hope among the right wing that Burger would restrict a number of the expansive liberal holdings of the Warren court. But that anticipation was frustrated as the Burger Court delivered Roe v. Wade in 1973 and in a 1971 case found in favor of busing as a means to integrate public schools. Perhaps more frustrating was the Burger Court’s ruling against Nixon in the Watergate case. His term continued to 1986 when he was succeeded by William Rehnquist. Thus for 33 years (1953–1986), SCOTUS and appointments thereto were seen as reflecting the unfettered determination of POTUS, while the bench engaged in vigorous development of its jurisprudence as it saw fit. The free hand of the president reflected a free market outlook while the Court itself functioned with laissez faire as its guide in fashioning decisions and shaping the national parameters of Constitutional rights, privileges, and jurisprudence.

In 1982, the Federalist Society for Law and Public Policy was founded to promote a “duty of the judiciary to say what the law is, not what it should be.” Goldwater’s political thesis now had focus on matters of law and the members of the federal judiciary. Commentators have observed that membership in the organization is “a proxy for adherence to conservative ideology” and that it is the “gatekeeper for right-of-center lawyers aspiring to government jobs and federal judgeships under Republican presidents.” Four current members of SCOTUS—Thomas, Alito, Gorsuch, and Kavanaugh—are confirmed as Society alumni, while Roberts remains cloudy. During Kavanaugh’s confirmation process, the role of the Society became widely known. Sixty-five years after Eisenhower’s mistake and 36 years after its founding, the Federalist Society boasts a successful track record as presidential whisperer on SCOTUS appointments.

The determination of the Republican right to control the SCOTUS selection process for ideological purposes culminated in August 2016 when Senator Mitch McConnell, the majority leader, declared at a political rally in Kentucky: One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill this Supreme Court vacancy.’ The stealth campaign to eclipse the free hand of presidents in SCOTUS appointments had arrived to the extent that a bare-knuckled punch to a president represented both the boldness of the Republicans and an acknowledgment of their stranglehold on the process. Only 64 years had elapsed from Brown to the seating of Kavanaugh in 2018.

This prospect of an iron grip by the Republicans on the federal bench and its jurisprudence has no end in sight. Kavanaugh’s successor to the DC Circuit, a Federalist Society member, has been named. In the face of this hegemony, a liberal SCOTUS appointment is a mere wish at this time as Republican control of the US Senate continues. In 2020, 33 Republican senators will be up for re-election, creating a potential opening for Democrats to intercede. In the meantime, the formerly free market of federal jurisprudence has succumbed to the hypocrisy of its former most ardent advocates. This, of course, has been judicial gerrymandering by the very same people who now proclaim that they seek bipartisan relationships with the House, newly under Democratic control. As all federal bench appointments are for the life and/or good behavior of the jurist, the Republican ideological imprimatur promises to be extraordinarily enduring. Having abjured the free market development of governance within the judiciary, the prospects for revanche are likely to be as difficult and even as bitter as that which marked the Kavanaugh nomination and confirmation. Even if the culture wars in the electoral sphere were to diminish, that in the federal judiciary promises to persist.  

 

 



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