The GOP’s approach to the Supreme Court epitomizes the conservative movement’s willingness to capture and distort our most treasured political institutions in order to serve their agenda. Over the past thirty years, the court’s conservative majority has bolstered the Republican Party’s electoral and political strength in ruling after ruling, undermined efforts to strengthen democratic participation and eroded key sources of progressive organizing strength. It is time for progressives to realize that the Supreme Court is not separate from politics and to take aggressive action bringing about a new court majority and balance the scales of justice.
The nomination of polarizing Supreme Court justices became a key Republican strategy beginning in the Nixon-era, and was embraced wholeheartedly by President Ronald Reagan. Reagan’s nomination of Robert Bork is remembered as a pivotal moment in the history of SCOTUS nominations. Bork, who had fired Archibald Cox in Nixon’s Saturday Night Massacre and held opinions on race and civil rights far from the mainstream of judicial precedent, was a symbol of the Republican Party’s interest in promoting loyal partisans to the court. While Bork was defeated, the lessons learned by the party following this failure was not to nominate less partisan justices, but to obscure the views of nominees, limiting their confirmation testimony to vague statements and silence on important issues. Other justices from this era, such as Antonin Scalia and Clarence Thomas, fit the mold of loyal, conservative voices who could be relied on to protect the party.
The modern conservative majority is best thought of not as an ideologically-minded group, but as a foundation for Republican strength. A brief glimpse at some of their landmark decisions makes this point clear:
- Bush v. Gore – 2000: A 5-4 ruling ending Florida state’s counting of election ballots, thus handing the presidency to Republican George W. Bush. The majority decision took the extremely unusual step of limiting the applicability of the ruling to this particular case.
- Citizen’s United v. FEC – 2010: A 5-4 ruling striking down campaign finance limits, allowing for unlimited corporate donations to political committees. The conservative majority based their ruling on the corporation’s first amendment right to freedom of speech.
- Shelby County v. Holder – 2013: A 5-4 ruling removing a key provision of the 1965 Voting Rights Act, which had allowed the DOJ control over election changes in states with history of racial discrimination. The majority opined that the country “had changed” since the law had been reenacted. This ruling opened the door for a wave of “voter ID” laws and other restrictions on minority voting.
- Janus v. AFSCME – 2016: A 5-4 ruling overturning the court’s unanimous decision in 1977’s Abood v. Detroit Board of Education. The decision poses a huge obstacle for public-sector unions, which have long fought for progressive values in the workplace. Justice Elena Kagan, in her dissent, wrote that the conservative majority “wanted to pick the winning side in what should be—and until now, has been—an energetic policy debate… [it] has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy.”
These, and many other 5-4 rulings, were decided not on the basis of law or principle, save the principle of partisan loyalty to the Republican Party. Until these judges find themselves in the minority, they will continue to place their fingers on the scales of justice in order to ensure Republican dominance in government. A new, progressive majority is the only way ensure our country continues to function as a full and fair democracy.
SCOTUS Majority PAC is committed to fighting ALL conservative nominees and countering a Republican Congress that views the court as an instrument for party power. Click below to donate to this cause, and help bring about a new, progressive majority.