Across the decades, Republican presidents have appointed members of the liberal bloc, whether William Brennan, Harry Blackmun, John Paul Stevens or, most recently, David Souter. Others, namely Sandra Day O’Connor and Anthony Kennedy, have been swing justices who voted with the progressives on big cases.
Many of these nominations were made prior to the flowering of the conservative legal movement. Dwight D. Eisenhower (Brennan), Richard Nixon (Blackmun) and Gerald Ford (Stevens) didn’t have a fine-honed sense of what a Republican president should look for in a justice. Ronald Reagan was committed to the idea of originalism but wanted to make history with the first female justice, so he went with O’Connor even though she wasn’t a good fit for his ideal vision of a justice. And Kennedy emerged from the wreckage of Reagan’s failed nomination of Robert Bork. Advisers around George H. W. Bush thought they were being clever, sneaking through Souter as a “stealth nominee” — a legal conservative with little paper trail to target — but they ended up fooling only themselves.
As conservatives have jettisoned the “stealth” strategy and insisted on originalists with the record to prove it, Republican nominations have become less erratic over the past several years.
Yet, once they are on the court, Republican nominees have at times felt the pull of the media and legal culture, which celebrates apostates on the right as courageous and statesman-like, but not dissenters of the left. To put it in political terms, it’s the difference between how the late Republican John McCain and Sen. Kyrsten Sinema (D-Ariz.) have been treated for giving a thumbs down to the priorities of their own parties — repealing Obamacare and changing the filibuster, respectively. In much of the coverage, McCain was treated as a giant, whereas Sinema largely has been deemed deserving of whatever grief she gets. In the legal realm, Kennedy was the subject of fawning press and high praise for his majority opinion on same-sex marriage in Obergefell v. Hodges.
Chief Justice John Roberts, a highly credentialed legal conservative, has clearly been responsive to these sorts of pressures at some level. His goal of maintaining the legitimacy of the court looks, at least in practice, a whole lot like an effort to preserve its reputation among elite opinion-makers. This has caused him to twist himself into legal pretzels to get to what he imagines is the most broadly acceptable opinion, most notoriously in National Federation of Independent Business v. Sebelius, the 2012 decision in which the court upheld the core of the Affordable Care Act.
It helps the liberal cause that their judges all tend to believe in a so-called living Constitution, allowing them to be more malleable in their legal opinions, updated for the times or the latest political preferences. This has been a 100-year project, with President Woodrow Wilson once explaining, “All that progressives ask or desire is permission — in an era when ‘development,’ ‘evolution,’ is the scientific word — to interpret the Constitution according to the Darwinian principle.” And so they have. At the end of the day, this approach doesn’t require much else of liberal justices than voting the right way — which is why Democratic picks tend to be largely interchangeable.
To sure, the court’s sitting liberal justices aren’t completely indistinguishable. Justice Elana Kagan is an excellent legal mind capable of forging coalitions to advance her goals. And, of course, every justice brings a different style to the bench. But, whether they are somewhat more moderate or obvious partisans practically giving political speeches during oral arguments, like Justice Sonia Sotomayor, the Democratic nominees by and large have come down the same way on the big questions in recent years.
The progressive critique of originalism is that it is just as results-oriented and political in nature as their own legal philosophy, no matter how much conservatives want to argue that it is uniquely grounded in the Constitution. But that argument doesn’t hold up. The exemplar of originalism, the late Antonin Scalia, so often issued opinions unwelcome to him as a policy matter that an entire book has been written about them. Last June, most of the court’s conservatives joined the progressives in concluding that Texas and other states lacked the standing to challenge Obamacare’s individual mandate, even though Democrats had been screaming from the rooftops that President Donald Trump wanted Justice Amy Coney Barrett on the court to overturn Obamacare. Barrett voted with the majority.
It’s true that originalists often come down the same way, but not always — there are different flavors of originalism and, of course, inevitably many close, knotty problems of legal interpretation presented to the court. Regardless, these justices almost always are trying to apply a reading of the Constitution that holds it as the final, foundational law of the nation that can’t be remade on the fly.
If a justice considers herself or himself mostly free of that obligation because the document is fundamentally malleable, it opens the way for imposing political and policy preferences as a matter of course. The pool of judges Biden will be picking from all hold a version of this view. It’s why, no matter how badly Biden has stumbled his first year, when it comes to putting a reliable progressive on the court for decades, it’s almost impossible for even him to mess it up.