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.
How does this relate to the current U.S. Supreme Court? Richard Nixon, not Robert Kennedy, got to appoint four justices to the court: Warren Burger, Harry Blackmun, Lewis Powell and William Rehnquist. Robert Kennedy would not have appointed any of those justices. With careful timing of their retirements (and in Rehnquist’s case his death), three of these four men were succeeded by Republican appointees, keeping solid Republican control of the court. Burger was replaced by William Rehnquist as chief justice under Ronald Reagan. Since that left an opening on the court, Reagan appointed Antonin Scalia to fill his seat. Lewis Powell also retired during Reagan’s term, and was replaced by Anthony Kennedy. That kept all three of these seats in Republican hands. It is impossible to imagine that a Democratic president would have appointed any of these people. Only Blackmun, a Republican who moved left on the court over the years, retired under a Democratic president. He retired under Bill Clinton, and was replaced by Stephen Breyer.
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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