Thread by @OrinKerr

On his latest podcast, Akhil Amar raises an interesting point about the contingency of the current Supreme Court. I'll elaborate on Akhil's point below, as I think it has some relevance for debates on court-packing.

Thread.

Amar notes that when McConnell decided not to bring up Garland for a vote, that was a major gamble. Garland was a surprising pick in some ways, as he was so centrist. And throughout 2016, Hillary was favored to win the election: it seemed unlikely Trump (Trump!?!?) would win.

In 2016, confirming Garland meant a centrist Supreme Court with a slightly left of center bent, as Garland would be the swing vote. But if they block Garland, good chance President Hillary picks a younger and more liberal person than the very-centrist Garland for the Scalia seat.

With pollsters believing the Senate would more likely than not be in Dem hands, see below, that could mean a liberal Court for a generation. HRC could get to replace Scalia, and then probably RBG and maybe AMK/SGB. The swing vote might be someone like Kagan, w/ everyone young.

Of course, it didn't work out like that. To everyone's shock, Trump won instead of Hillary. The Senate went R instead of D. Under an R Pres and R Senate, the Scalia seat was filled; AMK stepped down; and then, just before the 2020 election, RBG died.

The contingency of this is pretty incredible, I think. We ended up what looks at this point like a conservative court for a generation -- instead of the entirely plausible expectation in 2016 that there would be a liberal court for a generation.

Different people will draw diff lessons from this, of course. But I think it explains some of current perspectives, as well as problems with them. Underlying some attitudes is a sense of shock about where the Court ended up. 5 years ago, the future looked very different.

Not only was there good reason in 2016 to think the future Court was going to be left of center, there was good reason to think it would be really solidly so. (Remember this Mark Tushnet blog post? It was overly confident, but it captured the feeling.)

Can you imagine being on the left and having that expectation of the future in 2016 -- and then seeing the center of the Court instead shift hard to the right instead, from AMK to Roberts, and then Robert to -- who -- Gorsuch? Barrett? Kavanaugh? That's a shock.