Barring something completely unexpected, President Trump’s nomination of Brett Kavanaugh to the U.S. Supreme Court will be approved by the Senate. If that happens, the court will have a conservative majority for the first time in decades.
It’s then logical to assume that such a court will start issuing conservative rulings that would help the Republican Party. But an interesting piece by The Associated Press uses history as a warning that the GOP should “Be careful what you wish for.”
Put another way, conservatives should not count on any court to win their political battles. Two examples from the last 80 years underscore this point.
“In the 1930s, a conservative Supreme Court knocked down many of President Franklin D. Roosevelt’s New Deal programs aimed at hoisting the country out of the Depression,” the story said. “Statutes letting industries and unions set wages and prices, raising farm income and regulating the coal industry were declared unconstitutional, as was a New York minimum wage law.
“That helped fuel a 1936 FDR landslide that also gave Democrats 76 Senate and 334 House seats, Election Day majorities neither party has ever matched. The triumph paved the way for congressional control that Democrats didn’t relinquish until after World War II.”
The same thing happened in the 1960s, when expansive rulings from a far more liberal court led by Chief Justice Earl Warren helped elect a conservative law-and-order candidate, Richard Nixon, in 1968. Democrats kept control of Congress that year, but Republicans won four of the next five presidential elections.
The AP noted that the “disconnect” between the ideology of the Supreme Court and the mood of the voters can be different because justices are appointed for life.
“With turnover on the bench infrequent, the court’s views often lag behind the election results of the presidents and senators who pick them,” the story said. That is an excellent point, one that affirms the wisdom of the Founding Fathers and their desire for the separation of powers in American government.
If a Supreme Court indeed falls behind the times, it serves as a necessary counterbalance to movements for great and rapid change. The judiciary is the only branch whose leaders are not elected, and this is one reason why.
Using history as a guide, if Kavanaugh’s confirmation leads the court to reliably conservative rulings for a number of years, at some point the public mood will change, putting Republican electoral majorities at risk.
Given the GOP’s dominance in recent elections — with the notable exception of the two victories by President Obama — that risk today is difficult to envision.
It has happened before. But human nature is unpredictable, and it may not happen this time.
Warren, a Republican governor before his appointment to the court, led a very liberal court. And Anthony Kennedy, the justice Kavanaugh would replace, was appointed by conservative Ronald Reagan, yet he became the moderate swing vote in many key decisions.
