Have we seen the last of their kind?
With the debates that have occurred over the years on controversial Supreme Court Justice nominees such as Clarence Thomas in 1991 and Brett Kavanaugh in 2018, the question has arisen over whether Supreme Court Justices are predictable in their evolution on the Court.
The argument has been that most Supreme Court Justices are “pegged” when they are considered for the Court, and do not disappoint the President and the party which nominated them.
But history in the past three quarters of a century tells us that there are numerous exceptions.
A total of nine Supreme Court Justices from 1939 to 2009 have surprised observers in their swing from one philosophical side to the opposite.
Two of these nine justices were appointed by Democrats and were thought to be “liberal.” Felix Frankfurter (1939-1962), an appointee of Franklin D. Roosevelt, migrated from an earlier liberal, almost radical view, to a clearly conservative one, disappointing many Democrats in the process, and causing major clashes with the liberal majority on the Warren Court.
Byron White (1962-1993), an appointee of John F. Kennedy, was believed to be a liberal, but instead was a consistent conservative voice on the Court for three decades, surprising Kennedy supporters.
The other seven cases of unpredictability saw Republican appointed Justices who turned out to be, in some cases, extremely liberal, and in others, a moderating force moving toward a centrist position.
Chief Justice Earl Warren (1953-1969) was said to have disappointed President Dwight D. Eisenhower with his extremely liberal judicial philosophy. Warren became so controversial with his leadership on civil rights and civil liberties, that many critics called for his impeachment and removal from the Court. Who would have thought that the man who as California Attorney General in 1942 backed the internment of Japanese Americans after Pearl Harbor would end up being regarded as the best Chief Justice after John Marshall?
Another Eisenhower appointee, William Brennan (1956-1990) was even more controversial and more liberal than Warren, and had one of the longest careers in Supreme Court history. Brennan became a true champion of the powerless and of women’s rights, infuriating many, and overcoming the early belief that he would be a conservative on the Court.
Richard Nixon, on the third round, after two rejected nominees for the Supreme Court, selected Harry Blackmun (1970-1994), who was believed to be as conservative as his “Minnesota Twin,” Chief Justice Warren Burger. But over the years he grew increasingly liberal. Of course, he is best remembered for the authorship of the majority opinion in Roe V. Wade, the abortion case, in 1973, and was threatened by anti-abortion activists for the rest of his life.
Gerald Ford only had one Supreme Court nominee, and thought he had selected a solid conservative, but that belief proved to be false, with his selection of John Paul Stevens (1975-2010) the third longest serving justice in history, and second oldest ever at the time of his retirement at age 90. Eight years later Stevens is still active at age 98. Just last week he made headlines when he came out in opposition to Brett Kavanaugh’s appointment.
Ronald Reagan made two appointments to the Court that turned out to be surprises. Sandra Day O’Connor (1981-2006) was the first woman on the Court. Despite her conservative reputation she voted enough times with the liberals to become a genuine swing vote, particularly in her last decade.
The same applies to Reagan’s other surprise Justice, Anthony Kennedy (1988-2018), also a “third choice” after two nominees were rejected, as with Harry Blackmun eighteen years earlier. Like O’Connor he was a “swing vote.” After her retirement decisions often rested on his opinion. Statistics show that Kennedy joined liberals a third of the time and voted conservative the rest of the time.
Finally, when William Brennan retired in 1990, George H. W. Bush chose a person he thought was a consistent conservative, David Souter (1990-2009), who ended up being a solid moderate, often siding with his more liberal colleagues. He was said to be a “disappointment” to the President who had chosen him.
The effect of these seven Republican appointments who turned out to be liberal, moderate, or a “swing vote” was to make the Supreme Court more moderate, rather than overly conservative.
Sadly, as far as I’m concerned, Souter is the last GOP nominee to surprise his party. The nominees appointed since by Republican presidents have proven to be as conservative as they were billed: Clarence Thomas, appointed by George H. W. Bush; Samuel Alito and Chief Justice John Roberts, appointed by George W. Bush; and Neil Gorsuch, appointed by Donald Trump. Chief Justice Roberts has occasionally cast surprising votes, as when he upheld “ObamaCare” in 2013, and it is believed he is worried about the public image of the Court, which could lead him in the years ahead to play a centrist’s role like Kennedy.
At this point, sadly however, it seems clear that the era of “surprising” Supreme Court appointments who “disappoint” the Presidents who nominate them may have come to an end. But one cannot be sure that the experience Brett Kavanaugh has had on the road to the Supreme Court may have some effect on his future jurisprudence, and we can hope for such, and realize the surprises that these nine Justices of the Supreme Court displayed over the past seven decades from 1939 to 2009, greatly affecting constitutional law.
In any case, all nine of the Justices discussed above proved to be of great historical importance in the history of the Supreme Court, and rank among the more significant members of the institution.