Judicial Disappointments: When Justices Acted Out of Accord to The Wishes of Their Party

John Paul Stevens, SCOTUS photo portrait.jpg
John Paul Stevens, possibly the most disappointing justice for Republicans.

The notion of the judicial disappointment is rather recent given the increasingly ideological nature of the Supreme Court. Although there were certain differences that manifested themselves throughout US history, it hasn’t been as pronounced as now. Thus, most of what I write will be about relatively recent justices.

Felix Frankfurter

Felix Frankfurter (1882-1965) was one of FDR’s New Dealers and had been a prominent defender of Sacco and Vanzetti, so it was thought that when Frankfurter was nominated and confirmed to the court in 1939 he would rule in a manner fitting the man he supported. This was true in his upholding of commerce clause powers, but it became apparent over the years that while he had been a political liberal, he was the leading judicial conservative on the court. Frankfurter notably thought that the Supreme Court should stay out of the political thicket, and held that legislative reapportionment was strictly a political question…a precedent that would be undone by the Warren Court and the decisions that Chief Justice Earl Warren himself would consider the most important accomplishments of his court. Frankfurter thought of Warren’s work as “dishonest nonsense” (Hirsch, 13).

Byron R. White

Byron White (1917-2002) stands as the last disappointment for liberals on the court, as White was nominated by Kennedy yet he repeatedly voted in favor of the police in criminal defendant rights cases, voted against Roe v. Wade and would continue to oppose it throughout his time on the court. However, White was liberal on some other issues, such as school prayer and reapportionment. Nonetheless, White’s views went the opposite direction of what liberals wanted, such as opposing the “Miranda warning” in Miranda v. Arizona (1966), opposing abortion legalization in Roe v. Wade (1973), upholding the Hatch Act in United States Civil Service Commission v. National Association for Letter Carriers (1973), and upholding laws against sodomy in Bowers v. Hardwick (1986).

Harry Blackmun

Although how conservatives feel about Warren Burger and Lewis Powell and whether they can be considered disappointments is disputable, Harry A. Blackmun (1908-1999) is without doubt the most disappointing of Nixon’s picks and the one I would consider a complete disappointment for Republicans. For his first five years, he voted as a conservative, but his most famous decision, the one that ultimately defined his career, Roe v. Wade (1973), was a prelude of things to come. Although on criminal justice he seldom voted to expand the scope of criminal defendant rights, he proved quite socially liberal in many areas such as the notion of the “right to privacy”, school prayer, and affirmative action. He even later changed his mind from support to opposition to the death penalty. By the time of his retirement from the court in 1994, he was far more on the side of the William J. Brennan, the intellectual leader of the court’s liberal wing, than his old friend Warren E. Burger, who had only grown more conservative over time.

John Paul Stevens

Gerald Ford’s one and only pick for the Supreme Court had beforehand had a career as a brilliant anti-trust lawyer. John Paul Stevens’ (1920-2019) work earned him great renown and lead to President Nixon nominating him as a judge for the Seventh Circuit Court of Appeals. As a judge, Stevens proved moderately conservative. Perhaps a warning as to his future orientation would be that he was recommended by his former classmate, Senator Charles Percy, a liberal Illinois Republican. Initially, his orientation extended to his time on the Supreme Court: in the late 1970s he voted against affirmative action and for reinstatement of the death penalty, but would reverse course on the former and regarded his decision in Gregg v. Georgia (1976) as his only regret. Stevens ultimately would become, according to a 2003 statistical analysis of the Supreme Court, the most liberal justice in that court. He maintained, despite this and always ruling for the federal government on interstate commerce clause cases, that he was a “judicial conservative”. In 2008, Stevens wrote the dissent for District of Columbia v. Heller, which ruled for an individual right to bear arms. In 2010, Stevens wrote the dissent for the Citizens United decision and ultimately decided to retire, at the age of 90.

Although he was often in agreement with Ruth Bader Ginsburg and many Republicans regarded him negatively, Gerald Ford’s high opinion of Stevens never changed, and wrote favorably of him in the year before his death.

David Souter

George H.W. Bush’s first pick for the Supreme Court, David Souter, was a bit of an unknown save for his record on the state Supreme Court as a “tough on crime” judge. Indeed, his political record suggested conservatism as he had been a supporter of the staunchly conservative Governor Meldrim Thomson Jr. in the 1970s. Senator Warren B. Rudman, a moderate conservative, vouched for him to President Bush. Bush had another option in Edith Jones of the Fifth Circuit, who was known as a staunch conservative. Perhaps being afraid of selecting a justice who would get “borked”, he chose what seemed like a safe option. However, after Souter’s first three years he started to prove himself a moderate liberal in his rulings, including on civil rights issues, abortion, and on interstate commerce cases. Fortunately for conservatives, they would not be disappointed with Bush’s second pick, Clarence Thomas.

References

Cruz, T. (2020, September 29). How George H.W. Bush’s Supreme Court Nomination Cowardice Affected America. The Federalist.

Hirsch, H.N. (1981). The enigma of Felix Frankfurter. New York, NY: Basic Books.

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