How Conservatives Won the Battle Over the Courts

The right has demonstrated that winning this kind of institutional fight takes years, even decades, and requires a ruthless disposition.

Jonathan Ernst / Reuters

As Democrats await to hear whom President Donald Trump will pick on Monday to fill the vacancy left by Supreme Court Justice Anthony Kennedy, many have a feeling of pure dread.

While activists are mobilizing in the states of so-called moderate Republicans like Senator Susan Collins of Maine, hoping to sway their vote against a potentially ultraconservative replacement, there is a widespread feeling in liberal circles that the effort will fail. Even if Democrats can figure out some kind of Hail Mary move to prevent the most extreme pick from being seated, Trump will certainly be able to solidify a conservative majority on the high Court one way or another. The only real question is just how far right the court will move. The ghosts of the liberal Supreme Court led by Chief Justice Earl Warren will officially be vanquished. On a number of crucial issues—abortion rights, voting rights, gay rights, partisan gerrymandering, civil liberties—a conservative majority will have immense influence on American policy for decades to come.

How did conservatives finally win the battle to shape the character of the Supreme Court to have a rock-solid ideological majority that has not been seen since the days of Warren? The answers go far beyond the luck that Trump has experienced with vacancies.

As described by the political scientist Steven M. Teles in his book The Rise of the Conservative Legal Movement, the strategy began in the 1980s, when conservatives realized that they would have to play the long game. Focusing on each individual judicial nomination from Democratic administrations was a fool’s errand—even after Republicans finally gained control of the Senate in the 1980 election. Conservatives invested heavily in organizations that would nurture and support lawyers and justices who stuck to an “originalist” interpretation of the Constitution, which means that their understanding is theoretically derived from the original meaning of the Constitution at the time it was written.

A consortium of students and professors based at Yale Law School founded the Federalist Society in 1982, which would prove to be the most influential originalist organization. The society helped recruit the brightest legal minds and supported them as their careers unfolded. The Federalist Society was careful to find people who could be counted on as solid conservative picks for the courts. It offered a social-professional network to connect young law students with influential senior mentors, such as the late Supreme Court Justice Antonin Scalia. Attorney General Edwin Meese provided support from within Ronald Reagan’s administration, encouraging the group’s efforts. Meese headed much of the administration’s selection of 400 federal judges, introducing a type of ideological profiling of potential nominees that made conservative criteria a determining factor. Meese’s insistence on the “jurisprudence of original intention” influenced many important figures, including Chief Justice John Roberts.

As Lawrence Tribe, a Harvard Law professor, told The New York Times in 2005, “Meese was successful in making it look like he and his disciples were carrying out the intentions of the great founders, where the liberals were making it up as they went along.” The marriage of Federalist Society ideas and Republican Party politics would continue. Lee Liberman Otis, a co-founder of the Federalist Society, gained a key role in George H. W. Bush’s White House Counsel’s Office and influenced judicial picks.The Federalist Society was not alone. Other organizations, such as the Institute for Justice and the Center for Individual Rights, joined this effort. Rightward philanthropists and organizations (Joseph Coors, Charles and David Koch, the Olin Foundation) poured money into certain law schools, such as George Mason University, whose faculty members were supportive of conservative ideas in their research and would train their students accordingly.

But President George W. Bush was the first Republican president to really elevate the Federalist Society to being the prime source of advice in his judicial selections. Although Leonard Leo, the Federalist Society’s executive director, who was deeply influenced by Meese, supported Bush’s 2005 nomination of his personal attorney Harriet Miers to the Supreme Court, most members of the society attacked the selection and successfully pushed for the nomination to be withdrawn. Her successor was Judge Samuel Alito, a favorite of the Federalist Society. “The Federalist Society was, when it got started, a wonderful idea,” Steven Calabresi, a law professor who worked for Presidents Reagan and George H. W. Bush, recounted to The New York Times in 2005. The organization achieved its goal in making “a lot of conservative thought seem as respectable and attractive as it is.” Trump’s famous list of potential candidates from the 2016 campaign, which he is also using to make his choice for Kennedy’s replacement, was formed in consultation with the Federalist Society.

Conservatives did not rely on networking alone. The right realized that outside the presidential power to appoint, the Senate’s control over the confirmation process is essential. They learned this lesson the hard way in 1987, when Reagan’s pick for the Court, Robert Bork, a Yale Law School professor who had worked with the Federalist Society, was defeated, as Senate Democrats, who held the majority, portrayed him as an extremist.

Because 60 votes were needed at the time to confirm an appointee, Bork had no chance, and Reagan was forced to go with his second choice, Douglas Ginsburg, who withdrew after admitting to smoking marijuana, and then finally with Anthony Kennedy. Republicans never forgot this lesson, and ever since, they have been willing to ruthlessly use their legislative power to influence the confirmation process.

During President Barack Obama’s tenure, Republican Leader Mitch McConnell and his caucus delayed and obstructed a historically unprecedented number of judicial appointments. The obstruction became so great that Democratic Senator Harry Reid took the historic step in 2013, when his party controlled the chamber, of jettisoning the filibuster against non–Supreme Court appointments as well as Cabinet officials. But Republicans regained control of the Senate in the 2014 midterm elections, allowing them to block Obama’s judicial picks entirely. According to Sarah Binder, a political scientist at George Washington University, “GOP foot dragging on Obama nominees for both appellate and district court vacancies has far outstripped Democrats’ slowdown of Bush nominees between 2003 and 2008 (under both unified and divided party control).” Neither record, she added, was as great as the Republican delays on nominations by Bill Clinton’s administration.

In the 114th Congress, Senate Republicans confirmed the lowest number of judicial nominations since the final year of Harry Truman’s presidency, filling only 22 of Obama’s nominations from January 2015 through December 2016. “There was an almost total breakdown of confirmations once the Republicans took control of the Senate,” argues Russell Wheeler, a Brookings Institution expert on the U.S. judicial system. After Scalia’s death in 2016, McConnell revealed how far Republicans would go to influence the Court when his party refused to even meet with Merrick Garland, Obama’s selection to fill Scalia’s seat. The pick received no hearings, no vote, nothing. McConnell’s office announced that the majority leader would not even hold a “perfunctory meeting” with Garland, but wished him well. “It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on a president and withhold its consent,” McConnell boldly stated in face of criticism.

Republicans would simply wait until a Republican president was in office. Then in 2017, when Democrats filibustered President Trump’s nomination of Neil Gorsuch, Reid’s party paid the price for his decision. Despite the Republicans’ age-old talk about the importance of protecting minority rights in the Senate, McConnell eliminated the filibuster on Supreme Court nominations to push Gorsuch’s nomination through. “This will be the first, and last, partisan filibuster of a Supreme Court justice,” the Kentucky conservative said on the floor. The Republican Senate has also approved the president’s appellate nominees at a faster rate than all other recent presidents. Under Trump, there has been much more consent from the Republican Senate than advise.

Republicans realized that conservative organizations and hardball legislative politics were not enough on their own. Certain landmark decisions would be extremely difficult to overturn given stare decisis, the doctrine that means, generally, that prior decisions by the Court should be adhered to. Regarding abortion, for example, Republican legislators have been much more focused on slowly gutting the ability to get an abortion than on attempting to overturn Roe v. Wade altogether. Republican Representative Henry Hyde of Illinois was one of the architects of this strategy. In 1976, he successfully added an amendment to legislation that prohibited the use of Medicaid funds to pay for an abortion, except when the life of the mother was in danger or in cases of incest and rape. This strategy has been replicated numerous times as Congress has expanded the reach of the Hyde amendment beyond Medicaid, while Republican legislatures have enacted similar restrictions on government funding for abortion on the state level.

The strategic move by conservatives away from overturning Roe v. Wade and toward death by a thousand cuts has allowed conservative justices to uphold legislation that undercuts the right to get an abortion without restrictions. Most recently, Justice Gorsuch was one member of the five-person majority that voted to uphold a California law stipulating that pregnancy crisis centers that do not provide abortions don’t have to tell patients they can obtain the procedure elsewhere and that the centers don’t have to disclose whether they have a medical license. When Republicans like Senator Collins or Senator Lindsey Graham of South Carolina promise that they won’t vote for a nominee who would overturn Roe, their statement is somewhat meaningless, because the real action has been on legislation that gradually erodes the meaning of the right to get an abortion rather than on simply overturning the decision itself.

To reach the point where conservatives are today, they also had to swallow some of their principles. One of the most important and influential decisions that conservative organizations and Republican politicians have made along the way to Monday’s pick has been supporting a president who will follow through on their judicial agenda. Evangelical organizations, which have historically been politically pragmatic when deciding which politicians to support, and their Republican allies took the most strikingly hypocritical stand by working for the candidacy and presidency of a person whose personal behavior contradicts so much of what they claim to stand for. As candidate, Trump made a very clear promise that he would appoint nominees they supported, and he followed through on his promise with Gorsuch.

Evangelical activists are not the only conservatives to live by this whatever-it-takes principle. Republican Senators have been doing the same since 2016. The #NeverTrump movement within the GOP has turned out to be one of the greatest fantasies of American politics. Congressional Republicans have been willing to stand by and support Trump, aside from few verbal reprimands, as long as he does what they want. Appointing conservative justices has been a central goal for the GOP. Trump is delivering, so they, too, are willing to withstand controversy and instability.

Reshaping the Supreme Court, one of the most consequential accomplishments that a president and his or her party can achieve, is a massive political undertaking. Conservatives have demonstrated that winning this kind of institutional battle takes years, even decades, and requires a ruthless disposition.

Frustrated with their inability to maintain solid control over Congress, and convinced that liberals influence most key institutions, including universities, conservatives set out to do what was necessary to build a court system that would protect the constitutional values of the right. Assuming that President Trump follows through on his promises to them on Monday, and that Democrats can’t block the nomination, they are about to enjoy the fruits of their efforts.