The Most Important Election Ever?

The U.S. Supreme Court Building in Washington, DC
The U.S. Supreme Court Building in Washington, DC

In the run-up to the 1968 election, Chief Justice Earl Warren announced his intent to retire. Warren (and "the liberal Warren Court") had become a target for Richard Nixon and the Republicans, on the campaign trail, and Warren's retirement was meant to deprive Nixon of that target while giving President Johnson--who had already declared he would not be seeking reelection--the chance to name Warren's replacement before leaving office.

But in the wake of Warren's announcement, Johnson nominated Abe Fortas to be the new Chief Justice. Fortas had been a justice on the Court for only three years, and his close relationship with Johnson invited scrutiny. Soon ethical concerns were uncovered, scandal ensued, and Fortas's confirmation was derailed. And it was too late for Johnson to nominate somebody else.

Nixon won the election and took office in January 1969. Despite Johnson's failure to replace Warren before leaving, Warren followed through with his retirement. And Fortas was forced to resign from the Court altogether, to avoid impeachment. Thus, in his first year in office, Nixon was handed two vacancies on the U.S. Supreme Court.

Nixon named Warren Burger as the new Chief Justice. But Nixon's first two choices to fill Fortas's seat were stymied, in part for their ties to segregation, so Fortas's seat remained vacant for most of the 1969-1970 term. In 1970, on Burger's recommendation, Nixon nominated Harry Blackmun. The replacement of Warren and Fortas (two reliable left-leaning votes) with Burger and Blackmun (two center-right Republicans) signified a significant shift in the Court's ideological balance. But Nixon wasn't finished.

Just a year later, and within a week of each other, Hugo Black and John Harlan both announced their retirements. Black was in his 80s, Harlan was in his 70s, and both were suffering from deteriorating health. In fact, just ten days after his announcement, Black suffered a stroke and died. And Harlan passed away a couple months later. Harlan had sometimes been called the "great dissenter" of the Warren Court--but by today's standards he was a moderate conservative. And Black had been another reliable left-leaning vote.

With the loss of Black and Harlan, Nixon had two more seats to fill. In October 1971, Nixon nominated Lewis Powell to replace Black, and William Rehnquist to replace Harlan. Powell was another center-right Republican, but Rehnquist was considered "pretty far right" by folks in the Nixon administration. In fact, Nixon's own advisor exclaimed that Rehnquist was "way to the right of [Pat] Buchanan." Rehnquist's nomination was hotly contested by Democrats--especially when it came to light that he had endorsed Plessy v. Ferguson and had opposed court-ordered desegregation when he was a clerk for Justice Robert Jackson in 1952. But both Powell and Rehnquist were confirmed within a couple months.

And just like that, Nixon had remade the Supreme Court during his first term in office. The Court had been reliably liberal since President Roosevelt's time in office, and the Warren Court had had at least six reliable liberal votes since the 1950s. But Nixon had replaced three of those liberals with Burger, Blackmun, and Powell. And he had replaced the more-moderate Harlan with the far-right Rehnquist, who quickly established himself--often through solo dissents--as by far the most conservative member of the new Court.

The three liberals who still remained from the days of the Warren Court (William Brennan, William Douglas, and Thurgood Marshall) continued to exert a strong influence on the Burger Court. And Blackmun--who began his tenure voting with Burger over 87% of the time, in closely divided cases, and with Brennan just 13% of the time--eventually drifted leftward until he was siding with Brennan 70% of the time. But still, there's no denying Nixon's appointments put the Court on a rightward trajectory, with a new conservative majority. Eventually President Reagan appointed Rehnquist as the new Chief Justice, moving the Court even further rightward. And the current Chief, John Roberts, clerked for Rehnquist--so you might say Nixon's influence on the Court has continued to this day.

In other words, looking back at the ideological trajectory of the Supreme Court through the 1970s, 1980s, and 1990s, it's easy to see the 1968 election as a turning point--an election that had an immense impact. Since Nixon, no president has made four appointments to the Court. (Reagan made three, but needed two terms to get that many.)

So, was 1968 the most important election ever? A strong argument can be made for that view. Or there's 1936, when Roosevelt was reelected and went on to make eight appointments to the Court (during his second and third terms), setting the Court on its leftward course before Nixon came along to turn it around. Certainly 1936 is also a contender for "Most Important Election Ever," where the Supreme Court is concerned.

But what about 2016? Could 2016 rival 1936 and 1968 in the competition for "Most Important Election"? Notably, the post-Roosevelt Court was reliably liberal for roughly four decades, before the post-Nixon Court became reliably conservative for at least four decades. Are we due for another swing of the pendulum? It's looking that way--though it's not yet clear which way the pendulum is swinging.

The next president will take office during the Court's 2016-2017 term. Ruth Bader Ginsburg will be 84 before that term ends. Antonin Scalia will be 81, as will Anthony Kennedy. And Stephen Breyer will be 79 just after the term ends. In other words, during the new president's first term, four sitting justices will be in their 80s. That's four possible vacancies on the Court. And the likelihood of the new president getting four appointments to the Court will only increase if he or she is reelected to a second term. In fact, during that second term Clarence Thomas will turn 75--bringing a fifth appointment within the realm of possibility.

As most people know, the Court currently has four reliable conservatives in Roberts, Scalia, Thomas, and Alito. The Court also has four somewhat reliable liberals in Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kennedy, who is often characterized as the "swing" vote, is really just a less-reliable conservative. Over a six-term period, in 73 cases decided 5-4, Kennedy voted with the conservatives 48 times (or 66% of the time). Thus, the Court currently has a somewhat reliable 5-4 conservative majority. Replacing Kennedy alone will shift the Court's balance, because presumably he'll be replaced by either a liberal or a more reliable conservative. (For what it's worth, if only Kennedy were replaced and the other justices were to remain the same, I think Justice Breyer would become the new "swing" vote, as the justice who is next-closest to the Court's ideological center.)

Assuming the next president gets to replace all four of the oldest justices (Ginsburg, Scalia, Kennedy, and Breyer), we're in for a big shift. A Democrat could transform the Court's somewhat reliable 5-4 conservative majority into a solid 6-3 liberal majority. On the other hand, a Republican could transform the somewhat reliable 5-4 conservative majority into a formidable 7-2 conservative majority. And this 7-2 majority could be within the Democrats' reach, too, if--say, for health reasons--Thomas were forced to call it quits during President Clinton's second term. In other words, following the 2016 election, the Court is likely to swing back to the left or to swing even further rightward.

Either way, given the polarization that has occurred over the past couple decades, 2016 has the potential to be more influential on the makeup and trajectory of the Court than any other election in modern history. Proclamations of "Most Important Election Ever" are usually overplayed. But this year the proclamation might just be true.

[A longer version of this article, turning its attention to a proposal for judicial term limits, appeared in the December 2014 issue of The Federal Lawyer.]