March 08, 2022
IN-DEPTH
13
SupremeCourt BREYER
Liberal
Democrats. If Republicans regain the Senate in 2022 as expected, McConnell could, once again, block Supreme Court selections. “A lot of people are predicting that there will be this 6-to-3 court for decades to come, but it is good to recognize there is a lot of luck involved,” Snyder said. “Justice Thomas is 73, Justice Alito is 71 and health issues happen. It very well may be that five years from now, things look a lot different from what we are expecting.”
Antonin
SCALIA Liberal
GINSBURG
untimely passing may allow for another Republican nomination like Barrett’s. While initially hesitant, Breyer caved in following a damning 2021 off-year election f o r
Liberal
Replaced by Neil Gorsuch, Conservative
Earl
WARREN
MARSHALL
Replaced by Clarence Thomas, Conservative
Moderate
Thurgood
Liberal
Replaced by Warren Burger, Conservative
Anthony
KENNEDY
Replaced by Brett Kavanaugh, Conservative
GRAPHIC ILLUSTRATIONS BY BENNIE CHANG
Replaced by Amy Coney Barrett, Conservative
composition promoted liberals to seek stability within the liberal block. Following Biden’s election and Senate Democrats’ surprise upsets in Georgia, some on the left began pressuring the aging Breyer to retire, fearing a n
Stephen
L
consideration of Merrick Garland and rushing through the confirmation of Amy Coney Barrett.” After conservative Justice Antonin Scalia’s death in February 2016, Senate Majority Leader Mitch McConnell wielded his power to deny Judge Merrick Garland, who was appointed by Obama to the Supreme Court, both a hearing and a vote. This unprecedented obstruction of Obama’s authority gifted Republicans a plum platform to galvanize their base for the upcoming general election. “The nomination process has always been political, but there’s a difference in the way Trump appointed his justices, the way McConnell blocked the Scalia replacement and the way it’s been much more overt that they have an agenda now,” said Rebecca Talbott, fellow at the Stanford Constitutional Law Center. The ramifications were staggering, as Trump won the presidency and Republicans secured absolute control over Capitol Hill. McConnell swiftly delivered conservative Judge Neil Gorsuch to the high court, the first of many measures that guaranteed a generation of conservative judicial legislating. Gorsuch and subsequent Trump nominees are long-term justices likely to serve for decades. “It’s been a couple of centuries since the life-term was put in place, so there should be changes to the term lengths and the nomination process,” freshman Calvin Zhou said. In 2018, moderate Justice Anthony Kennedy vacated his seat, a momentous retirement that bestowed Trump with a second nomination. While most political scientists concur with the move’s apolitical nature, accused sexual assaulter and right-wing Judge Brett Kavanaugh replaced the groundbreaking Kennedy, solidifying a conservative majority. While Chief Justice John Roberts sought to safeguard the court’s impartiality by siding with liberal justices in several cases, Ginsburg’s death prompted McConnell to speed through Barrett’s confirmation and secure a 6-to-3 conservative supermajority. “The Barrett nomination laid bare that the American process of confirming justices to the Supreme Court is very political,” Tyler said. “Politics has been a major aspect of nominations throughout American history, but the contrast of holding up Merrick Garland and rushing through Amy Coney Barrett underscores the enormity of politics as an overlay on the confirmation process.” Even as Roberts continued to side with liberals in controversial cases, the five other Republican-nominated justices ruled. Taking on challenges ranging from abortion and a f f i r m a t ive action, they may roll back and even overrule precedent. Within four years, t h e adverse court
Ruth Bader
announced his retirement in the waning months of liberal Lyndon Johnson’s presidency. iberal Justice Stephen Breyer announced Subsequently, Johnson nominated Justice his retirement after 27 years on the Abe Fortas, a gamble that was confronted Supreme Court, granting President Joe with a conservative filibuster, derailed on Biden his first high court selection. With Biden ethical grounds and eventually withdrawn. nominating Judge Ketanji Brown Jackson, Warren’s belated resignation allowed Nixon Breyer’s calculated decision preempts a to appoint conservative Chief Justice Warren further imbalance from the current 6-to-3 Burger, leaving an indelible imprint on U.S. conservative majority, one that has undertaken jurisprudence: 54 years later, the chief justice salient judicial precedents. Unlike Breyer, chair is still in conservative possession. “I think it boils down to one word: timing,” however, liberal justices have a history of illtimed retirements resulting in ideologically Government teacher David Pugh said. “From a dissimilar replacements. These surrendered Democratic perspective, if some of the more liberal court seats, coupled with modern ‘liberal’ [justices] retired just a little earlier, Republicans’ tactical use of Senate power, have they would have had a president of their party been instrumental in shaping the Supreme nominate their replacement. Earl Warren was one of the most influential justices in terms of Court’s conservative dominance. Since 1960, Democrats and Republicans civil rights, and when Nixon ended up replacing have controlled the presidency for a similar him, that’s when the court began to shift.” Another case study concerns Justice number of years, yet Republican presidents Thurgood Marshall, have appointed nearly an anchor of the twice the number of court’s liberal justices. wing. He spurned “Every justice wants pressure to retire Judge Jackson has all the to be replaced with during liberal Jimmy credentials that you would someone who shares Carter’s presidency their views,” said Ryan want for a Supreme Court in the late 1970s, Snyder, former law clerk justice. She is exceptional, only to experience to Chief Justice John incredibly smart and a a Republican-held Roberts and fellow at the wonderful human being. White House for the Stanford Constitutional following 12 years. Law Center. “What Amanda Tyler, Citing health concerns, happened with Justice UC Berkeley Law Professor Marshall retired Ginsburg is obviously during conservative something that Breyer George H.W. Bush’s and all of the justices presidency, begetting a probably think about.” conservative successor. The death of Justice “I think Thurgood Marshall’s retirement Ruth Bader Ginsburg in September 2020 occasioned the fourth time in the past six is not talked about enough,” said Amanda decades for which a liberal relinquished a Tyler, former law clerk to Justice Ruth Bader court seat to a conservative. Since justices are Ginsburg and Shannon C. Turner Professor of nominated by the president and confirmed Law at the UC Berkeley School of Law. “When by the Senate, liberal activists recognized the you sit here in 2022 and look back, Thurgood inherent advantage to Ginsburg resigning Marshall is big because that’s a huge swing during liberal Barack Obama’s presidency amid with respect to that seat.” Aside from bungled Supreme Court a Democrat-controlled Senate. Being in her 80s, battling cancer and receiving retirement transitions, partisan polarization has also pleas, Ginsburg nonetheless remained on played a role: The U.S.’s fractured political the court — an epoch-making decision that landscape has spurred Republicans to cemented the court’s conservative skew. When capitalize on high court openings, exploiting she passed away during conservative Donald their Senate dominance to selectively push Trump’s presidency, Trump supplanted the through conservative nominees. More than civil rights giant with conservative Justice ever, confirmation battles have grown partisan, Amy Coney Barrett, Ginsburg’s antithesis who and politics and the American judiciary champions overturning landmark rulings such have become intricately and inextricably as Roe v. Wade, abolishing affirmative action intertwined. “Some of the reasoning behind the Supreme and terminating climate legislation. For such schismatic political subjects, Court’s conservative majority is the accident of said Erwin Chemerinsky, 5-to-4 Supreme Court decisions are the norm. h i s t o r y,” of the UC Berkeley Thus, the ideological flipping of court seats is D e a n of Law. “Some is the momentous, especially because justices serve S c h o o l manipulation of lifetime appointments. the process by In the case of liberal Chief Justice Earl Republicans, Warren, who presided over the Supreme such as Court in the 1950s and 60s, the ramifications blocking have persisted for decades. Convinced that t h e conservative Richard Nixon would win the 1968 presidential election, Warren deliberately
Conservative
BY CRYSTAL QIAN AND BENNIE CHANG
To be replaced by Ketanji Brown Jackson, Liberal
Retirements, replacements and reflections
