With the U.S. Supreme Court poised to eviscerate Roe v. Wade, it is worth considering how we got to this place. Many may say that we got here with the Republican senators refusing to consider President Barack Obama’s choice for the Supreme Court, and with the death of Justice Ruth Bader Ginsburg. That is likely true: Merrick Garland and Ginsburg or her replacement by President Biden would not have allowed the Texas abortion law to stand. Nor would they have destroyed Roe v. Wade. Yet I would argue that the current composition of the Supreme Court goes back to the assassination of Robert Kennedy in 1968, 53 years ago this past June.
By this assassination, Sirhan Sirhan changed the future of the Supreme Court for the well into the 21st century. Robert Kennedy had just won the California primary over Eugene McCarthy, and was very likely to be the Democratic nominee against Richard Nixon. In that election, with Hubert Humphrey badly damaged by the Vietnam War and his ties to LBJ, Humphrey nonetheless nearly won the presidency. He lost the popular vote by only 0.7%, with Nixon gaining 31,783,783 votes, and Humphrey garnering 31,271,839. In fact a number of scholars think that if that election had been held 48 hours later, Humphrey would have won, as he had finally begun to get his campaign (and desperately needed money) in order after a disastrous Democratic convention in Chicago that summer. With the emotions of John F. Kennedy’s assassination still high, Robert Kennedy would very likely have won the 1968 presidential election had he not been assassinated.
[image_caption]John Shockley[/image_caption]
The first chance for a Democratic majority, and a progressive majority, on the court since Earl Warren’s retirement in 1969 came 47 years later. Antonin Scalia never would have retired under a Democratic president, but his unexpected death in 2016 gave President Obama a chance finally for a Democratic majority. Of course, then Senate Majority Leader Mitch McConnell refused to even consider Obama’s choice of Merrick Garland as a replacement. That meant that with the unexpected election of Trump, Republican control of the court was saved. With Anthony Kennedy’s strategic retirement during Trump’s term, Kennedy was able to get his former law clerk, Brett Kavanaugh, to be his successor. (Whether this was arranged ahead of time is not clear.) Then with Ruth Bader Ginsberg’s death as the 2020 election was taking place, and Republicans rushing to confirm Amy Coney Barrett, Republican control of the court has been assured for perhaps yet another generation or more.
None of this would have been likely had Robert Kennedy been able to appoint the four justices that Nixon chose. There would surely have been a different outcome to San Antonio Independent School District v. Rodriguez, which in a 5-4 vote held that education was not a fundamental right. (The four Nixon justices all voted with the new majority.) There would have been no Bush v. Gore, which by a 5-4 vote stopped the Florida recount and declared George W. Bush the president-elect. There would have been no gutting of the Voting Rights Act, again by a 5-4 vote. The protection of monied interests and dark money in campaign finance reform cases would not have happened. Extreme gerrymandering by the Wisconsin Republican party, which allowed the Republicans to control the State Assembly by a 60-39 margin as they were losing the popular vote, would not have been protected by a 5-4 vote. Successful attacks on public employee unions (overruling a decades-long precedent) would not have happened, again on a 5-4 vote. Nor would the constant Supreme Court threats to Obamacare that dogged President Obama throughout his term have happened. On and on and on.
The ghost of Robert Kennedy, and what was lost with his assassination, haunts us to this day. Should the Supreme Court’s power over the most intimate details of our lives and of our democracy really rest on an assassin’s bullet? Right now, unfortunately, it does.
John Shockley is a retired political science professor from Augsburg University. He lives in Minneapolis.
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Indeed, I remain skeptical of arguments that the Supreme Court is, or even should be, apolitical. We cannot help but be products of the time and place in which we live, and any biography of virtually any Supreme Court justice will illustrate that principle many times over. Sometimes, justices are able to see beyond, and overcome their own innate biases, but more often, they decide cases on the basis of principles and experiences that are, if not predictable, certainly leaning one way or another. Were that not the case, neither Republicans nor Democrats would regard a Supreme Court nomination or appointment with the gravity that now accompanies such an event.
It’s one thing for rulings to be “apolitical” (that’s not possible for any nation’s supreme court), and another for those decisions to be purely results-driven, leaving dozens of decades-old precedents trampled underfoot, such as the latest victim, Roe v Wade.
A minor quibble. Repubs were the first to seek to ensure “conservative” litmus tests and the like for judges. They’re the ones with an institutionalized Federalist Society to recruit right-wing judges, not Dems. Indeed, it’s an open question if Dems have (even now) caught on to the game!
And Roe wasn’t results driven?
Well, every case has to have a “result”, there’s no way around that. The question is whether that “result” is the product of actual good faith reasoning and application of existing precedent, or whether the judge orders that result no matter how poor (or lame, or stupid) the arguments are in favor of it, simply because that’s the result the judge wants. Today’s “conservative” judges do too much of the latter.
For example, If one thinks that there is a personal, constitutional right to use birth control (which was an existing precedent at the time of Roe, and still is), then the result in Roe wasn’t much of a stretch, or the product of poor reasoning, IMO.
I mean, sure. Its just that you could take a lot of other and more recent events to fantasize about an alternate history.
For me, its Ruth Bader Ginsberg listening to Obama and retiring while he was president and the Democrats controlled the Senate. When she was 80 and a two-time cancer survivor. If that had happened, we’d have a 50-year old liberal justice instead of Amy Coney Barrett.
And still a 5 4 split
Depends on the issue. Roberts has been voting with the liberals on some cases, like the Texas abortion restrictions.
True
I thoroughly enjoyed this article and its parade of horribles, but the whole analysis turns on a (supposedly certain) alternate result in the 1968 election, an assumption I’m just not buying given the highly chaotic tenor of the times and Nixon’s very popular Law n’ Order schtick in the riotous year of 1968.
The reality is that the Repubs, through luck, fortuity and our failed Constitution (the Stolen Election of 2000), were able to control the Supreme Court until Scalia’s death. That fortunate death was extremely unexpected, and thus the Gravedigger the Democracy, Mitch McConnell (R-KY) and his Repub “majority”, had to wildly alter the nation’s existing norms in order to maintain control over the chief asset of the “conservative” movement: a Supreme Court with a majority of far-right extremists as judges.
“Conservatives” will literally do anything to maintain and further entrench this priceless asset, even if the credibility and integrity of the Court needs be destroyed in the process. That’s a price they are obviously happy to have the nation pay…
This professor invents a nice “hook”–what if RFK had been elected president in 1968–for his fantasizing about left-vs.-right appointments and decisions on the Supreme Court over the decades . Speculation and wishful thinking.
We who were alive and adults at the time remember, though, that HHH knew how to govern, while Robert Kennedy was a pure neophyte still learning that skill, and very new to it he was. Humphrey would have been the better president, over all, for those with Democratic leanings.
We must also add to this mix the certainty that no one in the Senate has been so fiercely take-no-prisoners as Mitch McConnell, of Kentucky. He is wiling to let the USA go down the tubes, in its economy and internationally, to keep Democrats from having any success in governing (his work this week on the national debt ceibling, for instance). Blaming a valiant progressive like Ruth Bader Ginsberg for dying in office and thus for today’s many Republican-leaning justices smells more of a combination of misogyny and anti-Semitism than any reasoned argument, when it was the McConnell 2016 decision to deny a Democratic president his right to appoint a Supreme, and McConnell’s abrupt about-face rush to appoint in November 2020 the latest justice, so the lame-duck Trump could do it, that are the two actions that created the ideological Court we currently have. The Senator has no moral sense, no ethics, and no patriotic feeling, just a vicious will to power.
Also, to my surprise, I saw that arrogant and disdainful egotist, Breyer, on tv last week, and could not believe how distasteful a person he is. Who knew!? Why not tell him to retire from his seat, while Biden is president? Breyer won’t do it, he just smirks dismissively, despite his age and many people urging him to assure a Democratically-appointed justice.
No one is blaming Ginsberg for dying in office. She is being blamed for doing exactly what Breyer is doing now – not retiring when there was a window to easily replace her with another younger, healthier liberal. Ginsberg’s behavior was every bit as arrogant and distasteful as Breyer’s. Do you honestly not see the irony of defending Ginsberg while criticizing Breyer?
A valiant progressive would have wanted to ensure that progressive values were protected for decades to come. That’s why Obama asked her to retire while the Democrats had the Senate. But Ginsberg was a selfish egomaniac. She chose keeping her job over the future. And now her legacy is Amy Coney Barrett. Ginsberg’s true legacy is seeing what she fought for all get erased because she put her own ego first.
Here’s the new litmus test for liberal SCOTUS nominees: Will you show enough humility to retire at a time when a suitable liberal replacement can be nominated and confirmed?
When it comes to the Supreme Court, lefties make unilateral disarmament look like a tough policy. It just drives me nuts.
Ginsberg was 80 and a two-time cancer survivor when Obama asked her to retire. Breyer is now 83. Its insane.
I was commenting on Breyer’s personality, not his decision to stay on the court per se, when I said I found him personally distasteful. I would have used the term”prick,” which is more accurate for how he comes across, but thought better of it for decorum’s sake. He coyly smirks and preens and condescends and otherwise asserts his obvious idea of his own specialness and the sheer lunacy of anyone thinking, much less asking him to retire while he still is preening and dismissing all about him as inferior.
I found him to be someone to shirk, in real life. In contrast, RBG was a mensch.
The behavior of Ginsberg and Breyer is exactly the same. Ginsberg was all about preening and her own specialness. Its the exact same thought process at work.
Ginsberg was the furthest thing from a mensch. She was a cruel, selfish person who screwed over millions of people because her ego was too big.
All can say to such a characterization is “Wow.” Or OMG. You really have a problem with that one woman, when it took Mitch McConnell to do the real harm.
Ginsberg was an enabler of McConnell. She gave him his power. Obama asked her to let him replace her with a liberal justice, and Ginsberg chose instead to let McConnell do it.
Selfish. Cruel. Egomaniac.
“Ginsberg was the furthest thing from a mensch.”
Bet her kids, grandchildren, late husband… might think differently. Pretty pathetic and lazy to toss insults about someone who while they had the fu*king temerity not to consult with you on future plans, nonetheless were a legal pillar. Don’t like her opinions, criticize them, but to say this women, who by all accounts (except yours of course) cared deeply about the law, and in particular how that law played for women, was a mensch.
And yet, she sandbagged her own goals.
Thank you Pat. I find labeling any criticism of RBG as being based in “misogyny and anti-Semitism”, laughable and insulting. That alone is sufficient to cause me to dismiss anything the author has to say as lacking honesty and credibility.
Let’s see Bryer is evil and Ginsburg is valiant for doing the same thing?
Just the same hypocrisy as a Trumper
Bingo.
Breyer is just a guy. Ginsberg is the beloved notorious RBG.
The appalling situation with Breyer is even worse, because he now appears to think he is (somehow) “protecting” the integrity of the Court by NOT resigning. And this after watching the Ginsburg debacle unfold and seeing the Court illegitimately packed with “conservative” extremists! He is in effect now parroting Repub talking points. Heckuva job, Mr Justice!
In a 6-3 minority he still thinks he is the Essential Man. Egotism always devolves into delusion.
When Obama asked Ginsberg to resign, it was because she was old and in poor health, and he was concerned that she might not live to see a time where she could be replaced by another liberal. It turns out Obama was exactly right.
I am not quite sure how blaming Ginsberg for risking (and losing) a liberal court seat constitutes Anti-Semitism. Since Breyer is also Jewish, would saying the same about him also be Anti-Semitism?
Many political people are indeed pressing Breyer to retire. Like Ginsberg, he lives in an isolated world.
What if Nader did run? Ross P.
Who knows?
Not my idea, but I am fond of changing the term to a 18 run, with a replacement every 2 years. This gamesmanship with the court is disgusting. And even tho the Blue team is not my side, the stunt pulled on Garlands nomination is even worse.
I’m not sure I agree with the length of the terms, but I definitely agree with the concept. I also agree that the stunt pulled on Garland’s nomination was abominable. I’m certain that the same stunt will be pulled even if an opening on the SCOTUS opened up at this very moment. After all, there’s an election coming up in 3 years! We should let the people decide! Until we don’t want them to decide and then we’ll shove a couple of uberconservatives in at the last possible moment.
As much as I agree with and appreciate this commentary, I think a much more recent determining factor on the court’s makeup was HRC’s loss of the presidential race in 2016. HRC repeatedly emphasized the importance of Supreme Court appointments in her campaign, so every voter a fraction of an inch Left of Center should have understood what was at stake.
But that wasn’t good enough for Bernie Sanders and some of his supporters. While most of Sander’s supporters voted for HRC, she wasn’t good enough or “pure” enough for many of them. They are the people I feel should be blamed for the current and future state of SCOTUS. We Dems could have won that election. We had the votes but in Michigan, Pennsylvania and Wisconsin, enough Bernie supporters either didn’t vote or vote for a third party candidate, allowing T. to win the Electoral College.
Bernie Sanders and his “Movement” is the worst thing that has happened to the Democratic Party in my lifetime, with the current state of SCOTOS being one of the main results of that.
Yet again, 2017 called, it wants its talking points back. Please show on the doll where the scary progressives (whose ally you moderates are SUPPOSED to be, as opposed to the Fascists) hurt you. But hey, maybe you’ll find some Trumpers who DON’T want to see you eliminated, you never know?
Late comment, but I just came across this. The author’s basic premise is wrong. RFK would not have taken the nomination. In 1968 I was reading the frequent delegate counts published in Newsweek. Humphrey was close to wrapping it up before Kennedy was murdered. Remember that there were very few primaries back then.
Also, RFK had just lost Oregon and had been taken severely to the mat in a televised debate with political newcomer Ronald Reagan. So even if he had taken the nomination, a victory over Nixon would have been doubtful.