Supremacy of the Court

The midnight religious liberty ruling from the Supreme Court last week—Roman Catholic Diocese of Brooklyn v. Cuomo—confirms why President Donald Trump, warts and all, retains the support of so many. Trump understood better than the Republican establishment he replaced that judicial appointments are of supreme importance to pro-life and religious liberty voters.

It is worthwhile to remember that history, for it explains in large part how a cavalier approach to core conservative priorities opened the door for Trump and the reconfiguration of American politics. 

In 1987 Joe Biden, presiding over the confirmation hearings for Robert Bork, applied pure power politics to judicial nominations. Biden, with the infamous assistance of Ted Kennedy, blocked Bork on the simple grounds that he did not agree with his judicial philosophy. They had the votes to block him—to “bork” him actually. So they did.

President Ronald Reagan rewarded Biden’s gambit, sending up Anthony Kennedy to replace Bork (after the next nominee, Douglas Ginsburg, withdrew). Over the next thirty years, Kennedy would remain faithful to Biden’s beloved abortion license and fashion for himself a fatherly role in establishing same-sex marriage as a constitutional right.  

The subsequent Presidents Bush made matters worse. Go back thirty years to President George H. W. Bush’s first appointment. It fell upon the retirement of Justice William Brennan, the leader of the liberal wing of the court, called by Justice Antonia Scalia the “most influential justice of the century.” It was of Brennan and Chief Justice Earl Warren that President Dwight Eisenhower, who appointed them both, would famously say, “I made two mistakes, and both of them are sitting on the Supreme Court.”

Thirty-four years after Brennan joined the court, Bush Sr. would make the same mistake all over again. He was offered the choice of Judge Edith Jones, the Amy Coney Barrett of her day, and the enigmatic David Souter. Bush was not seized with the momentous opportunity to flip the leading liberal seat on the court, as Trump would be thirty years later. 

Bush opted for Souter, being told that he was a sort of cipher conservative. Bush would later concede that appointing Souter, a reliable liberal vote and accomplice to Kennedy on social issues, was a “huge mistake.” More galling, Bush told his biographer Jon Meacham that he was worried at the time: “I don’t want to put Souter on the bench and be surprised though—an Earl Warren type discovery—after he’s on the bench.” He did exactly that.

In 1992, when Souter joined Kennedy to uphold the “essential holding” of Roe in Planned Parenthood v. Casey, the news reduced Biden to tears of joy, “laughing and yelling and hugging” fellow pro-choice senator Warren Rudman at a public railway station, “because, sometimes, there are happy endings.”

Bush recovered the following year by nominating Clarence Thomas to replace Thurgood Marshall, despite the best efforts of Biden to derail him.

Fifteen years later, it would be the turn of George W. Bush, who made two appointments in 2005. The first, John Roberts, was to replace Sandra Day O’Connor. Here was a chance to shift the determinative swing-vote in a reliably conservative direction. (Roberts was upgraded to chief justice when William Rehnquist died before Roberts was confirmed for O’Connor’s spot.)

It would turn out that Roberts himself was inclined to a little swinging, voting to preserve the Affordable Care Act and on other occasions joining with the court’s liberal quartet to grant them a majority. Earlier this year Roberts joined the liberals to uphold California’s pandemic restrictions on religious worship, a decision effectively reversed by the court last week in Roman Catholic Diocese of Brooklyn v. Cuomo. Roberts still sided with the liberals, but with Justice Barrett having replaced the late Ruth Bader Ginsburg, the liberals plus Roberts are now a minority.

It was the second Bush nomination of 2005 that opened the door for Trump to make judicial nominations a core part of his appeal to disaffected Republican voters. Bush nominated his Texas friend, former personal lawyer and White House Counsel Harriet Miers. Her manifest lack of ability—her nomination questionnaire submitted to the Senate Judiciary Committee was returned on a bipartisan basis because her answers were inadequate—and the likelihood that she would fall somewhere between O’Connor and Souter substantively led to a conservative revolt. Faced with enormous disaffection from his own supporters, Bush withdrew the nomination and sent up Samuel Alito instead, who had the confidence of the conservative legal community.

Fifteen years later, when Ginsburg died in office, Trump announced that he would nominate a female justice. There was no chance that he would go looking for a milquetoast Miers, or that he would pass over a latter-day Edith Jones. In one of his most effective political innovations, Trump had already, prior to his election, published a list of potential Supreme Court nominees. It was, in effect, a promise that the days of conciliatory Bush nominees were over. There would be no Souter or Miers under a President Trump.

Had Bush Jr. prevailed with Miers, last week’s ruling against Gov. Andrew Cuomo’s order capping attendance at houses of worship would most likely have gone the other way, with both Roberts and Miers in the majority. Indeed it is quite likely that with Miers on the court instead of Alito, a long string of 5-4 decisions over the last fifteen years would have gone the other way.

Recall that before Trump defeated Hillary Clinton, he defeated the other great establishment candidate of 2016, Jeb Bush. Trump signalled that he would not extend the “low energy” Bush approach to judicial appointments. That Trump followed through on that—and that Brooklyn Catholics and Jews are now able to worship without discriminatory limits—is a chief reason that Trump retains the support he does among religious conservatives.

Raymond J. de Souza is a priest in the archdiocese of Kingston, Ontario.

Photo by Joe Ravi via Creative Commons. 

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