Sonia Sotomayor is too liberal to serve on the Supreme Court — so, at least, say many conservative critics of President Barack Obama’s first high court nominee. It’s odd for them to protest Sotomayor’s left-wing views, though, when the current Supreme Court is far more conservative than are the majority of voters.
Yet a Court that differs from public opinion is nothing new in U.S. history; in fact, disagreements between the Court and our elected officials are a natural and important part of our constitutional process. What’s unusual is that conservatives are complaining about the Court at the same time they’re benefiting from its rightward slant.
The Founders wanted the Supreme Court to be independent from the rest of the government. That’s why they gave its occupants lifetime appointments. Since justices continue to serve long after the presidents who appointed them are gone, the Court’s composition frequently lags behind the country’s political mood. Justices who were popular when they took office often become jarringly out of touch before they leave. They’re like a bad national hangover: we liked what we drank last night, but we wish it wouldn’t stick around for quite so long.
As Obama knows, even winning the presidency doesn’t guarantee winning over the Court. Chief Justice John Marshall, who served from 1801 to 1835, belonged to a political party so unpopular it actually disappeared while he was in office. That didn’t stop him from making life difficult for the opposing-party presidents who served during his tenure. President Andrew Jackson, a frequent target of Marshall’s legal opinions, finally pulled a stunt even Obama wouldn’t get away with: he decided to just ignore Marshall altogether. “John Marshall has made his decision,” an exasperated Jackson remarked at one point; “now let him enforce it.”
The Court’s independence means it’s not obligated to vote with popular opinion even when doing so would be in the nation’s best interest. In 1857, conflict over slavery was tearing the country apart, and only the fragile Compromise of 1850 stood between the United States and bloodshed. Oblivious to the precarious political situation, the Court, led by slave-owning Chief Justice Roger Taney, declared the Compromise unconstitutional — paving the way for the Civil War.
Even the consummate political skill of Franklin D. Roosevelt wasn’t enough to bring the Court to heel. Ignoring Roosevelt’s friendly overtures, four right-wing justices — nicknamed the “Four Horsemen” by liberal commentators — proved hell-bent on striking down the entire New Deal. A panicked FDR tried to pack the Court in 1937 by adding six new justices — but Congress rejected his proposal. Only a last-minute compromise between Roosevelt and the other five justices averted a constitutional crisis.
If disputes between the Court and popular opinion have a long history, so do complaints about liberal judges. Modern-day conservative attacks on the “liberal judiciary” date back to 1953, when Republican Earl Warren surprised everyone by becoming the most liberal Chief Justice in history. Over the next sixteen years, Warren and his fellow justices wrote a series of bold opinions that, among other things, struck down segregation and gave Miranda rights to accused criminals. Many Warren Court members were still around in 1973 to help legalize abortion through Roe v. Wade.
Just like today, conservatives were outraged by what they saw as the Court actively making government more liberal instead of just interpreting the law. At the time, they had a point. But since 1969, Republican presidents have appointed all but two new justices, and most of the newcomers have shifted the Court to the right. The last unabashedly liberal justice, Harry Blackmun, retired over fifteen years ago. Today’s Court, led by right-wing ideologues such as Antonin Scalia and Clarence Thomas, is the most conservative since the days of the Four Horsemen.
Yet somehow, conservatives have managed to have their cake and eat it too. Despite the Court’s obvious right-wing bent, the right continues to attack the judiciary as too liberal for the country. It’s this popular misrepresentation of the current Court that’s historically new. Slavery advocates didn’t carp about abolitionist judges while Taney was Chief Justice; anti-New Dealers didn’t grumble about judicial liberalism when the Four Horsemen were on the bench.
Conservatives are entitled to enjoy the fruits of a right-leaning Supreme Court in the midst of the liberal Obama administration; by lagging behind the nation’s leftward turn, the Court is doing exactly what it’s designed to do. But it’s disingenuous for the right to whine about a liberal judiciary at the same time it benefits from a conservative one. If conservatives want their concerns about liberal judges to be taken seriously, they’ll have to wait until a Democratic president or two actually tilts the Court to the left. At least then the right’s attacks on the Court will mesh better with reality.
Jeremy C. Young is a doctoral student in U.S. History at Indiana University and a writer for the History News Service.
