SCOTUS Snowflakes and the Doctrine of Sad (with Dahlia Lithwick)

Time was, justices would move to the left the longer they served on the court. Why has that stopped?

Back in 2000, I started writing a regular Tuesday column on a now-defunct website called LARGER EGO (which is an anagram of GREG OLEAR; the tagline: “A cyberweekly for discriminating readers. All seven of you.”)

In December of that year, right after Bush v. Gore was decided, I posted a piece called “And Justice For Naught: A Supreme Rationalization,” mostly to make myself feel better about the prospect of Dubya nominating horrible young reactionaries to SCOTUS. The piece is an interesting time capsule, and instructive to quote at length:

December 19, 2000

Last week George W. Bush became the fourth candidate to win the presidency despite losing the popular vote. Let’s hope, for the sake of the American People politicians care oh-so-deeply for, he joins William Henry Harrison, Zachary Taylor, and Jimmy Carter as the only presidents not to nominate at least one justice to the U.S. Supreme Court.

The odds are long. The impeached Andrew Johnson got to nominate a justice. So did the assassinated James Garfield. Hell, even White House wallflower Millard Fillmore convinced the Senate to sign off on Benjamin Curtis (although he wasn’t so lucky with Edward Bradford, George Badger, and William Micou). So chances are, our dim-witted President-Elect will nominate at least one—possibly more, when you consider that three of our current crop are 70+ years old.

This is weighty responsibility for a guy who can’t even read a Supreme Court opinion, let alone interpret one. After all, Roe v. Wade hangs in the balance. His choices to don the black robes could well be the greatest legacy in his four years in office.

Roe certainly did hang on the balance—did it ever!—and John Roberts and Sam Alito, the two Leonard Leo allies Bush II wound up installing on the court, were instrumental in overturning that decision. But Dubya’s greatest legacy was the ill-fated and cripplingly expensive War on Terror coupled with those recklessly irresponsible tax cuts.

I would prefer Al Gore nominate the replacements for Justices John Paul Stevens (80), William Rehnquist (76), and Sandra Day O’Connor (70), should replacements be necessary. But if Shrub is obliged to make the choices, history suggests it won't necessarily be such a bad thing. (I know, I know. I’m just trying to be optimistic, OK?)

You think I’m nuts, I’m sure. So, to prove my sanity, we’ll take a closer look:

Of the nine sitting justices, seven were nominated by Republican presidents. Only three of those seven are dyed-in-the-wool conservatives: Chief Justice Rehnquist and Justices Antonin Scalia and Clarence Thomas. Justices Anthony Kennedy (who filled the seat President Reagan hoped to give to the odious Robert Bork) and O’Connor are moderate righties and therefore swing votes. The other two, Stevens and Justice David Souter, now vote with the left more often than not.

Ah, the good old days, when I was blissfully ignorant of the fact that Justice Kennedy’s old man was a mob lawyer, and could not even have dreamed that Anthony himself would unexpectedly step down to give his seat to Brett Kavanaugh!

Stevens was nominated by Gerald Ford; Souter, by the father of our President-Elect. Cross the simple-minded Gerald Ford with the blandly evil George Herbert Walker Bush, and what do you come up with? Dick Cheney’s running mate!

All joking aside, even when conditions are favorable, and the Senate is sure to approve whomever is nominated, the president is never certain that his nominee will represent his ideology.

Remember Justice Harry Blackmun, the liberal who retired in 1994? Remember how we were shaking in our boots that he might not live to see another Democratic president? That same Harry Blackmun was nominated to the Supreme Court by— mirabile dictu—Richard M. Nixon.

And when Blackmun gave up his seat, whom did President Clinton name to replace him? Left-leaning Bruce Babbitt? Liberal New York Governor Mario Cuomo? No. Bland, middle-of-the-road Stephen Breyer (What’s that you say? You wouldn’t know Stephen Breyer from Ben & Jerry? That’s OK; neither did Katherine Harris’s attorney).

It’s probably a good thing that Cuomo wasn’t the pick. Yikes! And I had to stop for a minute to remember that Katherine Harris was the Florida Secretary of State, the Jeb Bush associate and proto-Pam Bondi who was a key figure in Bush v. Gore. Incidentally, justices-to-be Roberts, Kavanaugh, and Amy Coney Barrett all pitched in doing legal work for that case.

Clinton, you see, was more interested in nominating a consensus candidate, a least-common-denominator choice that everyone could agree on, than an outspoken liberal to balance the right-leaning scales of justice. He picked his battles, and the Supreme Court was not one of them.

Nominating a Supreme Court Justice is a tricky business. All justices are subjected to meticulous background checks and must be approved by the Senate, a Senate which is more often than not opposed politically to the president.

Dr. George Watson, a professor of political science at Arizona State University and co-author of Shaping America: The Politics of Supreme Court Appointments, explains:

“The nomination setting is defined by four variables, namely, party split in the Senate, Senate support of presidential positions, presidential popularity in the public, and vacancy attributes…

“For the president, more favorable settings permit greater latitude in selecting a nominee because the conditions for confirmation are better. Less favorable settings hold more potential for controversy and potential defeat of a nominee if care is not taken in finding a nominee acceptable to one's political opposition.”

Take the aforementioned Millard Fillmore. His first appointment, Benjamin Curtis, was approved quickly by the Senate, in December of 1851. A year later, when Justice John McKinley needed to be replaced, the Senate was not as conciliatory. Fillmore nominated three different judges to the Court, and none of them were accepted. McKinley was not replaced until 1853, by a nominee of Fillmore’s successor, President Franklin Pierce.

What prompted the Senate, which had so alacritously approved Curtis, to stand firm on nominees Bradford, Badger, and Micou? In 1851, the nation was still mourning the untimely death of President Zachary Taylor the previous year. The Senators, ever slaves to public opinion, decided it would be best for the American People if the nomination process went smoothly. Also, there were more of Fillmore’s Whigs on the Hill than rival Republicans. Fillmore, in other words, was operating under a favorable nomination setting.

By 1852, the climate had changed. The composition of the Senate was different, and it was obvious the Fillmore’s term of office would end the next year. Thus, the Senate preferred to delay approving any of his three subsequent nominees rather than succumb to his wishes.

Holy crap! Fillmore had not one, not two, but three nominees Merrick Garlanded!

“Presidents who ignore the setting,” Watson writes, “do so at their peril. Reagan could have placed both Bork and Scalia on the Court if he had nominated them in reverse order. The setting for the Scalia nomination was quite favorable. Had he gone forward with Bork at that time, confirmation was virtually assured. Scalia, on the other hand, was a strong nominee for difficult times, like the setting that actually existed when Bork was nominated.”

Okay, so we should all breathe a sign of relief that Bork’s nomination was shot down—even if his nasty confirmation hearing augured nastier confirmation hearings yet to come (of which more in a minute).

Presidents with strong ideological beliefs, Watson says, tend to pick justices with strong ideological beliefs. Reagan, a noted ideologue, is directly responsible for the Court’s current list to starboard. It was Reagan who made Rehnquist Chief Justice. It was Reagan who appointed O’Connor and Kennedy and nominated Bork. And it was Reagan who gave us Antonin Scalia.

Reagan’s veep and the proud papa of our President-Elect screwed up both of his appointments. From the Republican perspective, David Souter is a lousy justice because he has strayed from party lines. From anyone’s perspective, Clarence Thomas was an abominable choice. The American Bar Association gave him a “qualified” rating, which, if the ABA were evaluating hotel chains, is how they would rate a Motel 6. The NAACP, the Congressional Black Caucus, most feminists groups, Anita Hill, and 47 U.S. Senators opposed his nomination. Worst of all, he’s only a youthful 51, so he’ll be around for years to come. That he votes Republican is but small consolation.

And I didn’t know the half of it! The piece concludes:

If his father is his primary advisor, and his father chose unwisely, it stands to reason that our President-Elect—who is, point blank, not as smart as his old man—will also choose unwisely. If we can depend on anything in Washington, we can depend on Dubya mucking up, right? One more Souter in a black robe and it’s Gore taking the oath of office next month (although I must confess a certain dread that in 2004, President Rodham will be sworn in by Chief Justice Scalia).

Meanwhile, let’s pray John Paul Stevens takes his herbal supplements.

We all know what happened next. In a masterstroke for conservative dickheads, Bush named the recently-confirmed Roberts Chief Justice. And he filled Day O’Connor’s seat with Leonard Leo’s guy Sam Alito—one of the most precipitous downgrades in the long annals of the Supreme Court.

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I dredge up that old piece for two reasons: First, my thesis—that justices tend to move left the longer they serve on the court—was true in 2000. Second, it no longer is. The conservatives have become reactionaries (looking at you, John Roberts!), and the reactionaries are straight-up fascists. So what happened? Why did this change? Were Leonard Leo & Co. doing a better job vetting? Or were other forces in play?

To answer these questions—as well as many others—I turned to Dahlia Lithwick, author of Lady Justice: Women, The Law, and the Battle to Save Democracy and my guest on this week’s PREVAIL podcast, who covers the law and the court as SLATE’s senior editor.

“It’s a couple of things,” Lithwick tells me. “The political scientists actually have a lot to say about this. And I think the way they used to look at it is, you know, of course, Harry Blackmun changed. Of course, David Souter changed. Of course, you know, these guys all drift to the left. As you say, it’s almost inevitable statistically that that’s what happened. And I think what they tended to say is that life mellows you, right?”

Too, sitting in conference with respected colleagues from different backgrounds broadened their worldview. “They learned a lot about things they didn’t know, and they changed,” Lithwick explains. “And every single justice for a time used to say, ‘I might not agree with Thurgood Marshall, but when he’s in conference and describes something that I didn’t know that I didn’t know, I realized I didn’t know it.’”

But Thomas and Alito, in particular, have proven immune to this sort of thing. They are stones. Nothing moves them. “That sense of, ‘Huh, I could learn something if I listened to Justice Sotomayor talk about growing up, you know, how her life was,’” Lithwick says. “And now it’s just like, ‘How dare you import your feelings and woke sensibility into my rigorous doctrinal worldview!’”

But there may be some psychology at work here, too.

“For years and years I used to say—and I’m sure there’s lots of audio of me saying—when Justice Alito first came onto the court, he routinely asked the single smartest, best question in oral arguments for quite a long time,” Lithwick tells me. “Justice Thomas was a different person on the D.C. Circuit until he was elevated to the court. So was Brett Kavanaugh.”

Why should this be? “Now, one theory of that is that they’re just evil people who hide their evilness until they get onto the court. But I actually think—and I’d fight you on this—I think the confirmation process makes them crazy. And I think that whereas Sonia Sotomayor went through her confirmation hearing being called, over and over, you may recall, a biased racist dummy, it didn’t change her. She’s fundamentally the same person she was. And while Ketanji Brown Jackson went through her hearing being called, you know, a feral child sex predator over and over again, she also didn’t change. She knew it was theater.”

The rightwing dudes, on the other hand, being less evolved, are still festering a grievance from their respective confirmation hearings, and all they seem to care about is revenge.

“Justice Alito to this day, I think, and certainly Justice Thomas and certainly Justice Kavanaugh, holds it against the country that they were shamed in their hearings,” Lithwick posits.

This probably started with Bork, who fully embraced the Dark Side and (metaphorically) chose violence after his public rejection. I distinctly remember Alito’s camp letting it be known to the media that calling him “Scalito” was hurting his fee-fees. And as for Coke-can Clarence and Beer-bong Brett, well, being outed as (alleged) sexual predators in the most humiliating possible way was no doubt hard for them to get over.

“And I think there’s a thruline, doctrinally, like a serious thruline, not just in how mean they become, but also in even the ways they think about the First Amendment and the press and the role of, you know, a free press,” Lithwick says. “It’s really interesting to see somebody go from sort of neutral to evil because they believe that when somebody said to Sam Alito, you know, ‘Were you a racist when you were in that club in Princeton?’ and his wife started crying, that that means that he has now been bullied, and he’s going to carry that to the end of his days. So I don’t know if that’s a useful coda, but I think there is something about recognizing that confirmation hearings are a game and a joke and walking away, and spending the rest of your life paying people back, the way Kavanaugh said he would.”

In other words, the entire country has been hijacked by SCOTUS snowflakes. Pregnant women and girls, trans kids, and LGBT individuals will pay the price for Alito, Thomas, and Kavanaugh feeling shame. What does Ilsa say in Casablanca? “One woman has hurt you, and you take your revenge on the rest of the world.”

“I think it’s of a piece with this moment we’re in,” Lithwick says, “where nobody knows what’s true, everybody makes up their own ending, and it doesn’t matter what the processes or the facts are, what matters is how you feel. And in some sense, we’re in the weirdest moment of Supreme Court coverage because it’s feelingsball all the way down. It’s just feelingsball….Look at Justice Alito—who, by the way, in the last couple of weeks made this insane, gratuitous statement about how he’s coming after Obergefell, [after] marriage equality because it hurts the feelings of people who want to be able to discriminate against LGBTQ Americans.”

“Like, okay,” she tells me, “it’s the doctrine of sad.”

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LISTEN TO THE PODCAST

S7 E3: Feelingsball: The Leonard Leo Industrial Complex, SCOTUS Nihilism, and the Doctrine of Sad (with Dahlia Lithwick)

Greg Olear welcomes Dahlia Lithwick, senior editor at SLATE and the author of the bestseller “Lady Justice: Women, The Law, and the Battle to Save Democracy.” They discuss the current state of the Supreme Court and the impact of recent decisions; the dynamics of the court, the influence of confirmation hearings, and the changing ideologies of the justices; the need for structural court reform and the public appetite for court expansion; and the role of dark money groups in pushing cases to the court and the potential consequences of recent rulings. The conversation covers the threat to reproductive rights, the potential impact of the 14th Amendment on removing Trump from the ballot, the consequences of pardons and lack of accountability, and the rise of MAGA in Canada. Plus: a new dating app.

00:00 Opening Monologue

11:10 Beginning of Interview: The Supreme Court and Order Muppets

19:46 The Impact of SCOTUS Confirmation Hearings on Thomas, Alito, and Kavanaugh

38:50 The Alabama IVF Decision

56:50 The 14th Amendment and Taking Trump off the Ballot

01:18:02 The Rise of MAGA in Canada

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Photo credit: White House. With President George W. Bush Looking on, Judge Samuel A. Alito Acknowledges his Nomination as Associate Justice of the U.S. Supreme Court, 10/31/2005.