Chief Justice John Roberts’ recent decision upholding the Affordable Care Act, as well as his vote to overturn much of Arizona’s illegal immigration law, has made conservatives think that yet again a Republican president was bamboozled. Personally I think it’s a bit early to completely write off the Chief Justice. For most of his tenure he’s been a fairly reliable conservative vote, and there is still much time (presumably) before he retires. Then we will be better able to assess his legacy.
It did get me thinking, though. What are the worst Supreme Court selections in history? I’m looking at this question in terms of the president doing the selecting. Someone like Ruth Bader Ginsburg, a doctrinaire liberal, wouldn’t make the cut because no doubt she has voted in much the way Bill Clinton would have wished when he picked her. Similarly, I do not include someone like John Paul Stevens. Though over time he veered much further to the left than Gerald Ford or his Attorney General , Edward Levi (who basically made the selection) could have anticipated, Stevens’ jurisprudence was not that radically removed from Ford’s own preferences. In fact, Ford wrote of Stevens:
For I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination thrity years ago of Justice John Paul Stevens to the U.S. Supreme Court. I endorse his constitutional views on the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal case and on the constitution’s broad grant of regulatory authority to Congress. I include as well my special admiration for his charming wit and sense of humor; as evidence in his dissent in the 1986 commerce clause case of Maine v. Taylorand United States, involving the constitutionality of a Maine statute that broadly restricted any interstate trade of Maine’s minnows. In words perhaps somewhat less memorable then, “Shouting fire in a crowded theater,” Justice Stevens wrote, “There is something fishy about this case.”
He has served his nation well, at all times carrying out his judicial duties with dignity, intellect and without partisan political concerns. Justice Stevens has made me, and our fellow citizens, proud of my three decade old decision to appoint him to the Supreme Court. I wish him long life, good health and many more years on the bench.
Well, if Ford was willing to base his legacy on his choice of John Paul Stevens, then I’m happy to call Gerald Ford a miserable failure.
This, then, is a list of the biggest mistakes in Supreme Court selection.
5) Sandra Day O’Connor: Some may argue that the Anthony Kennedy selection was just as bad, if not worse. I went with O’Connor for a couple of reasons. First of all, she was Reagan’s first choice. He made a campaign promise to nominate a woman, and as soon as a vacancy occurred on the Court, Reagan went with O’Connor. Pro-lifers suspected at the time that O’Connor would not likley overturn Roe v. Wade. Reagan even acknowledged those concerns in his diary at the time he made his choice, but he ignored them. Kennedy, on the other hand, was Reagan’s third choice. Robert Bork had been rejected by the Senate and Douglas Ginsburg withdrew due to revelations about pot use (something which almost certainly would not hold up a nomination today).
Also, though O’Connor had a decent track record on economic and commerce clause issues, Kennedy’s record has been just slightly more satisfying from a conservative standpoint. Of course both disappointed massively when they issued a joint opinion in Casey v. Planned Parenthood that upheld Roe v. Wade. As detailed last week, the opinion was both a substantive and stylistic disaster. O’Connor also voted to uphold
racial discrimination affirmative action (Grutter v. Bollinger) and the curtailment of the First Amendment (McConnell v. FEC). In both cases, Kennedy voted with the conservative minority. In cases where Kennedy joined the left-wing of the Court, O’Connor generally joined him as well.
4) William Johnson, Henry Brockholst Livingston, and Thomas Todd: I’m really not trying to pick on Thomas Jefferson. Jefferson had three chances to rein in his arch-rival, John Marshall, and he failed three times. Though each of Jefferson’s three Court appointments had somewhat idiosyncratic judicial views, none of them challenged Marshall in the slightest, and often voted with the Chief Justice in a series of unanimous decisions. Livingston and Todd, in particular, consistently voted with Marshall and confirmed his broad construction of the Constitution. Even though other presidents have whiffed badly, never has a president failed so thoroughly and consistently to move the Court in his direction. The only reason that these three aren’t higher up on the list is because the scope of issues covered by the Court was comparatively narrow.
3) Harry Blackmun: Like the nomination of Anthony Kennedy, Blackmun’s came on the heels of two failed nominations. Unlike Kennedy, it cannot be said of Blackmun that at least he voted with the conservatives most of the time. It’s true that Richard Nixon himself was hardly a conservative ideologue. Still, it’s hard to believe that Nixon could have envisioned what a terrible disaster Blackmun would turn out to be.
If Blackmun had served on the Court for 20 years as an ardent originalist, he’d still be on this list for one decision only: Roe v. Wade. Not only did Blackmun join the Court’s majority, he penned the specious opinion justifying the Court’s intrusion into the matter. Two decades later, one of Blackmun’s final written opinions was his partial concurrence in Casey v. Planned Parenthood. There was not a shred of legal argumentation in that screed, which was essentially a thorough rant lamenting that his sacred opinion had come so close to being overturned.
But there wasn’t just Roe. Blackmun split from fellow Minnesotan (and fellow Nixon appointee) Warren Burger regularly, siding with the Court’s left on most major cases. He of course retired during the Clinton administration, ensuring that his successor would be another doctrinaire liberal who would uphold the sacred right of abortion.
2) David Souter: There’s a common theme in a lot of these selections. In most of these cases, there were warning signs about the eventual nominee beforehand. The leftward tilt of O’Connor, Blackmun and Souter could have been (and was, by astute legal minds) predicted. Thanks to John Sununu (yes, the same John Sununu who went around telling us all how wonderful a presidential nominee Mitt Romney would make), any doubts that George H.W. Bush may have had about Souter were vanquished.
Souter didn’t take long to vote with the left, starting with Casey (see how often that abomination comes up). From that point on, Souter voted with the left on almost all major issues. Unlike Kennedy and O’Connor, it couldn’t even be said of Souter that he was a swing vote. And like Justice Blackmun, Souter retired during a Democratic administration in order to guarantee that his replacement was a left-winger.
1) Earl Warren: The Republican Party of the 1950s was a different animal than it is today. As much as conservatives grit their teeth at the establishment today, the party as a whole was much more liberal then. President Eisenhower was fairly moderate, and California governor (and former Vice Presidential nominee) Earl Warren was a progressive. All that being said, it is doubtful that Ike could have anticipated how far left Chief Justice Warren would pull the Court.
A good argument can be made that Warren was the Court’s most powerful Chief Justice after John Marshall. And it is almost beyond dispute that Warren’s tenure fully cemented the centralization of the federal government at the expense of states’ rights. The Warren Court’s jurisprudence on voting rights and apportionment, the first amendment, law and order, and just about any other major issue you can think of pulled the Court left, and did so by regularly ignoring the plain text and meaning of the Constitution. Warren was no great legal mind, but he was a masterful politician, and he was able to steer the Court left. He was aided and abetted by fellow Eisenhower appointee William Brennan. (Ike’s other three picks were John Harlan, Potter Stewart, and Charles Whittaker. Harlan was one of the more conservative Justices on the Warren Court, which might not be saying much. Stewart was a swing vote throughout his career, and Whittaker was a non-entity.)
Eisenhower purportedly called his selection of Earl Warren “the biggest damned-fool mistake I ever made.” It’s not certain whether or not Eisenhower actually said that. What is certain is that the assessment is absolutely correct.