Thread by @MikeSacksEsq

A Short History of America's Contemporary Judicial Wars...

....as told in a thread-reply to a now-suspended Twitter user that called me an "idiotic millennial" ignorant of the Bork fallout

https://twitter.com/MikeSacksEsq/status/1135740249857024000?s=20

The Premise: it's all about power, and the wars heat up when the balance of power is in play.

https://twitter.com/MikeSacksEsq/status/1135602699783802880?s=20

FDR tried to obtain power on the Supreme Court by packing it. That failed, but the more conservative of the court's two swing votes swung his way, and then the court's four solid conservatives retired, giving him his liberal supermajority to create a new constitutional order.

LBJ and Chief Justice Warren tried to engineer the preservation of the civil rights revolution they layered over FDR's constitutional order...but failed when Fortas was filibustered then resigned, leaving Nixon with two vacancies upon entering office.

Nixon got his new Chief in Burger, and then tried to flip the court (on some things...there was a wide mushy middle with Stewart/White/Harlan) with his second vacancy. But Senate Liberals sunk two of Nixon's nominees as revenge for Senate Conservatives forcing the Fortas vacancy.

Nixon ends up getting 4 nominees on the Court.

But Blackmun later goes full-tilt liberal (and he was *still* very much a conservative when he wrote Roe v. Wade majority!), while Powell brings back the swing vote from its death in 1937.

Stevens was confirmed to Douglas's seat in 1975 without controversy because Douglas's legal liberalism was politically dead, and the court at that point was considered already flipped, and Stevens matched the post-Watergate moment as a center-right "lawyer's lawyer"

O'Connor was the first female nominee, wasn't regarded as highly ideological, and was filling a center-right seat anyway.

Scalia replaced Rehnquist, who replaced Burger.

Likes for likes.

But during all that time, Roe's 7-2 majority had turned into a 5-4 decision one way or the other if squarely challenged.

Powell was in Roe majority but went on to vote with conservative 5-4 majorities to narrow abortion rights.

Then Powell retired.

Like in 1937 with Court Packing, then in 1968/69 with Fortas seat, the balance of power in the Supreme Court was at stake.

So, in 1987, the Judicial Wars kicked back in and Bork got borked. And it wasn't even close. 42-58.

Still, Kennedy did get confirmed, and in 1989's Webster case (oyez.org/cases/1988/88-…), it seemed the court had 5 votes to reverse Roe: Rehnquist, White, O'Connor, Scalia, Kennedy.

Blackmun, in dissent, wrote "the signs are evident and very ominous, and a chill wind blows."

That apparent expectation that Roe's reversal was inevitable, to me, suggests perhaps why the judicial wars didn't flare up when Souter (then assumed to be conservative) didn't get any resistance to fill the arch-liberal Brennan's seat.

But then came Thomas's nomination the following year to succeed Marshall, turning the last real liberal seat into a solid conservative one.

The Wars kicked back in over race and ideology, and then, Anita Hill's sexual harassment allegations.

Souter's confirmation in 1990 had presumably given conservatives a 5-4 edge to reverse Roe that Thomas would have made 6-3.

But on many other issues, O'Connor was becoming the swing vote Powell had been.

Thomas would have become the 5th conservative in those cases.

Now enter the so-called "Biden Rule," which was really just a proposal by then-Sen. Biden in June 1992.

Dude presided over the Thomas hearings the previous fall and and was expecting SCOTUS to reverse Roe just days later.

But he wanted to hedge just in case of surprise.

Blackmun (Roe's author and fiercest defender) and White (1 of Roe's 2 original dissenters but still a loyal Dem) were really old. GHWB already got to flip Brennan/Marshall seats. Biden didn't want him flipping another two seats with solid conservatives so close to Election Day.

So Biden pretty much said, yo GHWB, that whole Thomas thing last year was really ugly, and whatever SCOTUS does with Roe in a few days will make any new confirmation process on Election Eve super duper ugly if you don't first get buy-in on your nominee from Democratic Senators.

Anyway, O'Connor/Kennedy/Souter betrayed their movement by refusing to reverse Roe, with the former two switching sides from the 1989 ruling everyone thought spelled the end of the constitutional right to an abortion.

Meanwhile, White/Blackmun held on till Clinton took office.

RGB succeeded White (flipping the abortion vote...but White was in the minority) and Breyer succeeded Blackmun.

Balance of power at court not at stake. Big bipartisan confirmation votes.

No War.

Through all this time, O'Connor strengthened her position as the court's swing vote.

She used it, among other things, to vote for Bush in Bush v. Gore, because she her husband's Alzheimer's was advancing and she wanted to care for him, but didn't want to retire under a Democrat

Bush gets re-elected in 2004. O'Connor soon decides it's time to retire to care for her husband. But Rehnquist has cancer and she doesn't want two vacancies at the same time. She goes to Rehnquist. He says he's staying on. So she retires effective her replacement's confirmation.

Judicial Wars are poised to return. Sure, Kennedy's kinda swingy, too. But he's no O'Connor.

Bush nominates Roberts, but before he becomes the center of the storm, Rehnquist dies. Roberts re-nominated for Chief. Like for like there, but moment is still charged.

Bush puts forward Harriet Miers for O'Connor. But conservatives shoot her down by friendly fire in this battle of the Judicial Wars. She's too untested after after Blackmun/Stevens/Powell/O'Connor/Kennedy/Souter all betrayed the efforts since 1969 to fully turn the court right.

When Bush nominates Alito, Dems threaten filibuster. They lose. Alito gets confirmed. But the rancor of turning that seat from swing to solid conservative didn't dissipate. The like-for-like swaps of Souter/Sotomayor and Stevens/Kagan carried significant Republican opposition.

And then Scalia died. Balance of power up for grabs again.

McConnell escalated with Garland blockade.

Trump wins Electoral College, nominates Gorsuch in like-for-like.

But Dems want revenge for blockade, they filibuster.

McConnell nukes it.

But Kennedy's still swing vote.

(Yes, I know Dems nuked filibuster for lower court judges to push through Obama's 3 DC Circuit nominees to fill that court's vacant seats, and McConnell framed his SCOTUS filibuster nuke as an inevitable follow-on to that)

Kennedy retires under Trump, putting the balance of power more fully in play than ever.

War's still on, gets even hotter.

We know what happens with the Kavanaugh nomination.

Still, Chief Justice John Roberts remains. He's a conservative that holds the balance of power, and he uses it to advance the conservative ideological agenda while at times, in his estimation, saving his movement from itself both in the Obama and Trump eras...

Until RBG dies.

And now we may be headed full-circle in our Judicial Wars, but in mirror image: contra 1968, the President this time will able to make his Election Year appointment to entrench his side's ideological majority...and contra 1937, the next POTUS may be able to pack in his own one.

The Judicial War on 1937 only really ended when FDR achieved a SCOTUS supermajority that was generally in step with public opinion.

Today’s 50-Years’ Judicial War only began when LBJ tried to entrench a renewed liberal majority that had grown out of step with public opinion.

The only way to end this 50-Years’ Judicial War is with an epochal, FDR-style supermajority that generally reflects the will of the people.

Obtaining an ideological supermajority that doesn’t reflect the will of the people invites, rather than ends, epochal conflict.