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.