One year after they overturned the Roe v. Wade protection for abortion rights, the same six members of the U.S. Supreme Court have banned affirmative action — the explicit use of race as a factor in college admissions.
Designed to address centuries of inequality in education, affirmative action had been a feature of the past several decades and was upheld by multiple Supreme Court rulings over that period. Now, the court has denounced the practice as a form of racial discrimination that violates the 14th Amendment, which was itself enacted to enfranchise the formerly enslaved.
This week’s affirmative action ruling was nearly as notable a departure from precedent as last year’s spiking of Roe, which had been the law of the land for half a century before the court called it “egregiously wrong.”
It was a rare combination of two such far-reaching reversals, and it was accompanied by other rulings on sensitive issues by the same six justices. The combined effect has focused national attention on the court’s dramatic swing to the right.
The most immediate explanation for the earthquake is the weight of three conservative justices appointed by former President Donald Trump and confirmed by a Republican-controlled Senate during his term. Trump was able to fill more seats in a single term than any president since Franklin Roosevelt.
But that is far from the whole story.
The current supermajority on the court exists because of major political factors that have favored Republicans in the postwar era and historic circumstances that were windows of opportunity for all six conservatives to be appointed and confirmed.
The Electoral College and the fortune of timing
The longest-serving member of the current court, Clarence Thomas, was confirmed in 1991. At the time, Republicans had won the popular vote for president in seven of the previous ten election cycles (1952 – 1988).
But in the eight presidential elections since then, Republicans have won the popular vote only once. Two Republicans who lost the popular vote reached the Oval Office by prevailing in the Electoral College.
Those two — George W. Bush and Donald Trump — would eventually appoint the five justices who, with Thomas, make up the current 6-3 conservative supermajority. (Democrats also had five appointees in this period, but one died and one retired and both were replaced by Republicans.)
The biggest contributor on this score was Trump’s 2016 win in the Electoral College against Hillary Clinton. George W. Bush also came to the presidency initially via the Electoral College after losing the popular vote to Al Gore in 2000. (Bush did win the popular vote in his reelection year, before he appointed any justices.)
Republicans have also had far more luck in having Supreme Court vacancies occur when they controlled the White House and a working majority in the Senate.
While the presidency itself has swung between the two parties with some regularity since World War II, with Republicans holding the office for 40 years and Democrats for 38, no Democratic president in all those decades has been able to appoint and confirm a chief justice. By contrast, four of the six Republican presidents in that same period — Dwight Eisenhower, Richard Nixon, Ronald Reagan and George W. Bush — have named a chief justice.
Overall, in the 54 years since Nixon first took office, there have been 20 confirmed appointments to the court, counting chiefs and associate justices. Republican presidents have had 15 of them, Democratic presidents just five.
Centrists as an endangered species
Throughout its history the Supreme Court has made momentous political decisions, driven at times by strong ideological leanings. But it has also had a tradition of idealizing a nonpartisan consensus and seeking unanimity whenever possible. It is a tradition the current chief justice often salutes and, at least at times, seems eager to serve.
In the past, as a rule, the Senate defaulted to confirming nominees in deference to the president — even across party lines. If there was not an egregious issue or personal matter, the vote was often lopsided. Reagan appointee Antonin Scalia, a true conservative icon, was confirmed in 1986 without a dissenting vote.
Moreover, individual justices at times seemed to evolve in their views and alliances during their time on the court, sometimes frustrating the president who appointed them or elements of his party.
For example, when Thomas was appointed in 1991, seven other sitting justices had been appointed by Republicans, and an eighth was appointed by a Democrat but had a conservative record. Yet for all its party unity, the court of that time was not regarded as particularly conservative. Two of its members would come to be viewed as part of its “liberal wing” (David Souter and John Paul Stevens), two Reagan appointees were regarded as moderates or centrists (Sandra Day O’Connor and Anthony Kennedy) and a fifth, Harry Blackmun, had been the author of Roe v. Wade.
But change was already underway to nominate justices who would more reliably keep a conservative bent.
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The highly partisan battle over Reagan appointee Robert Bork, whom the Senate rejected in 1987 after liberals blasted his record, had poisoned the well.
Thomas had an ideological profile much akin to Bork’s, but he was confirmed in part because he declined to state opinions about controversial issues.
His hearing was not without controversy, however. Thomas faced accusations of sexual harassment by a former co-worker named Anita Hill. Thomas — who is Black and was nominated to fill the vacancy left by Thurgood Marshall, the only African American ever to serve on the court at the time — called Hill’s televised testimony “a high-tech lynching for uppity Blacks who in any way deign to think for themselves.”
Thomas’ nomination was confirmed by the full Senate 52 to 48, saved by the votes of 11 Democrats unwilling to oppose him.
Campus organization seizes power: The Federalist Society
Back in 1991, Thomas was the first new justice on the court who had been associated with the Federalist Society, a campus gathering of conservative law students and faculty at Yale, the University of Chicago and other schools. Rising up in the wake of Roe, the group was formally founded in 1982.
Their animating idea was that federal judges were arrogating too much power to themselves and playing fast and loose with the Constitution to accommodate their own policy preferences. Many of the rulings of the Supreme Court under Chief Warren Burger and his predecessor Earl Warren were regarded as egregious examples of “activist judges” run amok.
Since then, the Society has grown and prospered in numbers, influence and fundraising prowess. Succeeding perhaps beyond its dreams, it now counts the six conservative members of the Supreme Court among its current or former members. It has had no small role in their elevation, aggressively recruiting and promoting candidates for the bench and supporting conservative Republican candidates for president.
The current court’s conservative majority is now often seen as a Federalist Society majority.
The breakthrough year of 2005
Significant as it was to see the first President Bush nominate Thomas, the real breakthrough for movement conservatives in legal circles came in 2005. The circumstances were unique and highly personal.
O’Connor, who in 1982 became the first woman to join the court, decided to retire a bit early to spend more time with her husband, who was ill. She announced her retirement in 2005, and the just-reelected President W. Bush named John Roberts, a former Reagan adviser who had become a federal appeals court judge, to replace her. Roberts had been a Harvard undergrad and law student and had a reputation as a high-powered intellect.
But before Roberts could be confirmed, the court’s senior-most member, Chief Justice William Rehnquist, died. So Bush withdrew his nomination for the O’Connor seat and put him up for chief instead in September 2005. Roberts’ hearings began a week later, and he was confirmed in time for the court’s traditional opening on the first Monday of October.
The Roberts hearings were largely non-contentious. Only minor controversies had arisen concerning Roberts’ career, and he handled questions about his views with aplomb, referring to the court’s task as that of an “umpire calling balls and strikes.”
The O’Connor vacancy was to be filled by Bush’s White House counsel, Harriet Miers, a Texan and a longtime associate of the Bush family. It seemed appropriate to replace O’Connor with another woman, and while Miers had not been a judge and was little known in the legal community, she had the support of some prominent Democrats in the Senate.
The problem arose on the other side, as a number of prominent conservatives denounced the choice. Bork called it a “disaster” and a “slap in the face” to the conservative movement that had been “building up … for the last 20 years,” a reference to the Federalist Society. The movement conservatives did not trust Miers to toe their line, as she did not have a history of ruling in the cases they cared most about.
As president of the Texas State Bar, she had supported an affirmative action program for women and minorities. The critics feared “another Souter,” a reference to the first justice chosen by the first President Bush. The opposition grew loud enough that Miers chose to withdraw her name from candidacy.
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At that point, Bush called on a prospect he had first interviewed years earlier for an appellate court position, Samuel Alito, who had actually been at Yale with Thomas in the 1970s. While he satisfied Miers’ detractors, Alito also stirred the opposition party to action. Although Democrats had only 44 lawmakers in the Senate that fall, they had enough votes to mount a filibuster if they chose to, and there were Republicans willing to at least consider voting no.
Among those withholding commitments on Alito was a first-year senator from Illinois who had been a Harvard law student and a law professor at Chicago. His name was Barack Obama, and he declared himself “concerned that President Bush has wasted an opportunity to appoint a consensus nominee in the mold of [O’Connor] and has instead made a selection to appease the far right-wing of the Republican Party.”
Sen. Edward Kennedy, a senior Democrat on the Judiciary Committee, interviewed Alito and took careful notes for his diary (later shared with biographer John A. Farrell). Kennedy asked Alito about Roe and recorded this as his answer: “I am a believer in precedents, people would find I adhere to that.” But Kennedy was not convinced.
Kennedy had also written in his diary that he found Roberts “bright and smart and compelling,” but that when he sought Roberts’ commitments on social justice issues, Roberts “didn’t want to get into that at all.” Kennedy would eventually vote against both the Bush nominees.
Eighteen years later, it was Roberts who signed the opinion that erased affirmative action in college admissions this week.
Confirmation drama returns
The Alito hearings began the first week of January 2006, in an atmosphere of tension. Confirming Roberts to the Rehnquist vacancy was one thing, but Alito was taking the place of O’Connor, who had been a vote for moderation on abortion and racial gerrymandering and other issues.
The Democratic leader at the time and some of the chamber’s liberals were ready to filibuster, protesting the choice of a candidate as ideological as they believed Alito to be.
The questions in the hearing room were tough. Alito had denied being a member of a certain alumni group that wanted fewer women and minorities admitted to Princeton, but evidence emerged that he had cited such a membership in the past. The questioning grew more hostile. There was talk of a subpoena for records of the group.
On the third day, one of the Republicans on the committee, Lindsey Graham, praised Alito and regretted what the nominee was enduring. Alito’s wife, Martha-Ann Bomgardner, began to cry and left the room in tears after Graham sarcastically had asked Alito: “Are you really a closet bigot?” She later returned, composed and holding her husband’s hand. But the image of her looking distraught became the focus of the day’s proceeding in the media.
After that, the mood in the hearing room was palpably different, and the steam soon went out of the filibuster talk. Years later, as a president seeking support for his own court nominees, Obama would say he regretted entertaining the idea of a filibuster against Alito.
At the time, Democrats were increasingly focused on that fall’s election, one in which they hoped to recapture the Senate majority. So the filibuster did not happen. Later that month, with just one Republican breaking ranks against him and four Democrats in favor, Alito was confirmed 58-42.
Last year, Alito wrote the decision in the Dobbs case that overturned Roe.
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