What John Paul Stevens inadvertently taught conservatives about the Supreme Court
Some of the most liberal justices of the the post-World War II era were selected by Republican presidents
John Paul Stevens will certainly go down in history as one of the most important liberal Supreme Court justices. But the jurist was also significant to conservatives in a way that continues to reverberate through today's contentious judicial confirmation hearings.
Stevens, who died on Tuesday at the age of 99, eventually led the liberal bloc on the nation's highest court. But he was nominated to the Supreme Court by President Gerald Ford, a Republican. And while Ford's GOP was not as homogeneously conservative as the party is now, neither he nor most of his supporters intended to appoint the most liberal member of the Supreme Court.
On issues like affirmative action and the death penalty, Stevens' leftward shift was more gradual, as he originally voted with the court's conservatives. But he was a strong supporter of federal power over the states and frequently voted to uphold gun control laws, in one case excoriating the dominant conservative judicial philosophy while dissenting against an expansive reading of the Second Amendment. (In retirement, he called for the amendment's repeal.) Conservative Washington Post columnist Henry Olsen complained, "Republicans such as Stevens were thus relatively untrained in serious legal thought when they were elevated to the bench."
Subscribe to The Week
Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.
Sign up for The Week's Free Newsletters
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
Yet Stevens was part of a larger pattern that informs conservatives' Supreme Court strategy today. Some of the most liberal justices of the the post-World War II era — Earl Warren, William Brennan, Harry Blackmun, Stevens, and David Souter — were selected by Republican presidents, who frequently lamented their choices later. Even when the presidents and their judicial picks started getting more conservative under Ronald Reagan, only about half the Supreme Court justices chosen were reliable originalists.
President Ronald Reagan promoted William Rehnquist and nominated Antonin Scalia, for example. But he also put Sandra Day O'Connor and Anthony Kennedy on the Supreme Court. O'Connor and Kennedy were both more conservative than Stevens and the others described in the previous paragraph. But they were also frequently swing votes who upheld some of the most controversial liberal precedents, including Roe v. Wade.
By the 1980s, millions of Americans were voting for Republican presidential candidates in order to overturn Roe. Yet that decision ushering in legal abortion was authored by a justice nominated by a Republican president (Blackmun, chosen by Richard Nixon). Its core holding was affirmed in a decision written by another Republican president's nominee (Kennedy, chosen by Reagan). Stevens usually joined them as part of the bloc that voted to uphold liberal precedents and dissent from conservative decisions. To find a Democratic-appointed justice who turned out to be a surprise conservative, you have to go all the way back to Byron White, nominated by John F. Kennedy in 1962.
This gave rise to conservative groups like the Federalist Society, who carefully scrutinized the records and judicial philosophy of Supreme Court prospects. And if the high court was often a disappointment to conservatives, Republican presidents increasingly began seeding the lower courts with judges whose legal and constitutional philosophies were more congenial. Republican senators, who still overwhelmingly voted for both of Bill Clinton's Supreme Court nominees after the borking of Robert Bork and the near-borking of Clarence Thomas, got stricter too, all the way up to not granting Barack Obama nominee Merrick Garland a hearing.
It all really came to a head under another Republican president, George W. Bush. The younger Bush, who was popular with social and judicial conservatives, initially nominated Harriet Miers to replace O'Connor in 2005. Instead of falling in line, however, conservative groups rejected her as unreliable. They did not want another John Paul Stevens. Conservatives decided they not only should resist Democratic nominees, who proved consistently liberal, but that they could not trust Republican picks either. Miers was withdrawn and replaced with Samuel Alito, whose conservative credentials were far better established.
Without the Miers precedent, it is hard to imagine Republicans who had voted in large numbers to confirm Ruth Bader Ginsburg holding firm on blocking Garland. The failure to even really consider Garland in turn paved the way for the close Senate vote on Neil Gorsuch and eventually the highly charged Brett Kavanaugh hearings.
Donald Trump was less of a philosophical conservative than either Reagan or Bush 43. But he ran on a list of conservative-vetted Supreme Court nominees he would choose from and has so far kept those promises. The result is a rightward shift in the federal judiciary even more pronounced than Reagan's.
There is still an air of unpredictability to these lifetime appointments. Conservatives were outraged by John Roberts' ObamaCare decision and, more recently, the citizenship question on the census. It is by no means clear either Roberts or Kavanaugh would overturn Roe, as many conservatives want. But they are unlikely to lead the liberal bloc on the Supreme Court anytime soon.
The climate in which a Stevens or Scalia could be unanimously confirmed is gone for the foreseeable future. So is the likelihood a Republican president would knowingly nominate someone closer to Stevens than Scalia. Stevens' long tenure on the court is a major reason for both phenomena.
Sign up for Today's Best Articles in your inbox
A free daily email with the biggest news stories of the day – and the best features from TheWeek.com
W. James Antle III is the politics editor of the Washington Examiner, the former editor of The American Conservative, and author of Devouring Freedom: Can Big Government Ever Be Stopped?.
-
The Pentagon faces an uncertain future with Trump
Talking Point The president-elect has nominated conservative commentator Pete Hegseth to lead the Defense Department
By Justin Klawans, The Week US Published
-
This is what you should know about State Department travel advisories and warnings
In Depth Stay safe on your international adventures
By Catherine Garcia, The Week US Published
-
'All Tyson-Paul promised was spectacle and, in the end, that's all we got'
Instant Opinion Opinion, comment and editorials of the day
By Justin Klawans, The Week US Published
-
US election: who the billionaires are backing
The Explainer More have endorsed Kamala Harris than Donald Trump, but among the 'ultra-rich' the split is more even
By Harriet Marsden, The Week UK Published
-
US election: where things stand with one week to go
The Explainer Harris' lead in the polls has been narrowing in Trump's favour, but her campaign remains 'cautiously optimistic'
By Harriet Marsden, The Week UK Published
-
Is Trump okay?
Today's Big Question Former president's mental fitness and alleged cognitive decline firmly back in the spotlight after 'bizarre' town hall event
By Harriet Marsden, The Week UK Published
-
The life and times of Kamala Harris
The Explainer The vice-president is narrowly leading the race to become the next US president. How did she get to where she is now?
By The Week UK Published
-
Will 'weirdly civil' VP debate move dial in US election?
Today's Big Question 'Diametrically opposed' candidates showed 'a lot of commonality' on some issues, but offered competing visions for America's future and democracy
By Harriet Marsden, The Week UK Published
-
1 of 6 'Trump Train' drivers liable in Biden bus blockade
Speed Read Only one of the accused was found liable in the case concerning the deliberate slowing of a 2020 Biden campaign bus
By Peter Weber, The Week US Published
-
How could J.D. Vance impact the special relationship?
Today's Big Question Trump's hawkish pick for VP said UK is the first 'truly Islamist country' with a nuclear weapon
By Harriet Marsden, The Week UK Published
-
Biden, Trump urge calm after assassination attempt
Speed Reads A 20-year-old gunman grazed Trump's ear and fatally shot a rally attendee on Saturday
By Peter Weber, The Week US Published