The Nine

1. The Supreme Court is Inherently Political

The truth about the Court has always been more complicated.

Beyond the marble steps. Despite the Supreme Court's grand architecture and the ideal of judicial impartiality, it has always been deeply intertwined with the political currents of the nation. From its earliest days, the Court has confronted the same political issues as the other branches of government, with a mixed record of success and failure. The notion that justices operate on a "higher plane" is often an illusion, as their decisions frequently reflect broader societal and political divisions.

Historical context. Throughout American history, the Court's role has shifted in response to national challenges.

• Early Republic: Chief Justice John Marshall significantly shaped the government's enduring structure.
• Slavery & Civil War: The Court, like other branches, failed to resolve the horror of slavery or prevent civil war.
• Economic Expansion: Before WWI, the Court often accommodated business interests and their political allies.
• Warren Court (1950s-60s): Asserted itself as an independent guarantor of constitutional rights, pushing liberal directions on civil rights, free speech, and privacy.

Reflecting public opinion. Even in the late 20th century, during the tenures of Chief Justices Burger and Rehnquist, the Court's decisions on pressing issues like race, sex, and religion often mirrored public opinion, guided by moderate swing justices like Lewis F. Powell and Sandra Day O'Connor. This created a paradox: an undemocratic institution whose rulings frequently aligned with the will of the people.

2. The Rise of Conservative Legal Thought

The Federalist Society both reflected and propelled the growth of the conservative movement.

Challenging liberal orthodoxy. For decades, especially after the Warren and Burger Courts, liberal legal interpretations became the dominant orthodoxy in law schools and the legal profession. However, the 1980s saw the emergence of a powerful conservative rebellion, nurtured in elite law schools and evangelical churches, aiming to challenge and reverse these liberal precedents.

The Federalist Society's impact. Founded by students like Steven Calabresi, Lee Liberman, and David McIntosh, the Federalist Society provided a platform for conservative legal ideas.

• Intellectual void: It filled a void left by the decline of dynamic liberal scholarship, which had veered into esoteric movements like Critical Legal Studies.
• Reagan administration: The society gained significant traction with the Reagan administration, which began hiring its members and appointing them as judicial nominees, including Robert Bork and Antonin Scalia.
• Audacious goals: This new generation of conservatives rejected "judicial restraint" in favor of a new "judicial activism," demanding that courts actively restore what they saw as the rightful constitutional order.

Originalism and Roe v. Wade. A core tenet of this movement was "originalism," championed by Robert Bork and Edwin Meese III, which argued that the Constitution's words meant only what its authors intended. This philosophy directly targeted landmark decisions like Roe v. Wade, which originalists argued had no basis in the framers' intentions. Samuel Alito Jr., then a Justice Department lawyer, advocated for an aggressive strategy to eventually overturn Roe, signaling the movement's long-term agenda.

3. Sandra Day O'Connor: The Pivotal Centrist

No one ever pursued centrism and moderation, those passionless creeds, with greater passion than O’Connor.

Shaping the Rehnquist Court. Sandra Day O'Connor, the first woman appointed to the Supreme Court, became the most influential justice of her era, often casting the decisive vote on critical issues from abortion to affirmative action. Her judicial philosophy was characterized by a deep commitment to centrism and moderation, which she pursued with remarkable determination. She had an uncanny ability to align her rulings with American public opinion, making her decisions widely accepted.

Pragmatism over ideology. O'Connor's approach was pragmatic, often seeking middle-ground solutions rather than rigid ideological stances.

• Abortion rights: In Planned Parenthood v. Casey, she crafted the "undue burden" standard, preserving the core right to abortion while allowing states to impose some restrictions, a position that reflected public sentiment.
• Spousal notification: She notably struck down the spousal notification requirement in the Pennsylvania abortion law, viewing it as paternalistic and sexist.
• Affirmative action: In Grutter v. Bollinger, she upheld the limited use of race in university admissions to foster diversity, but also set a 25-year expectation for such policies to end.

A political animal. A former state legislator, O'Connor had a natural inclination to favor legislative judgments and avoid judicial overreach, yet she was fiercely protective of judicial independence. Her ability to build coalitions and her self-confidence allowed her to dominate the Court's jurisprudence, even when her views differed from both staunch liberals and conservatives. Her influence was so profound that the Rehnquist Court was often referred to as the "O'Connor Court."

4. Clarence Thomas: The Isolated Conservative

Of all the justices, Thomas imposed the tightest ideological screen in the hiring of law clerks, deputizing a small group of former clerks to determine the views of prospective hires.

A unique judicial perspective. Clarence Thomas, appointed after a brutal confirmation battle, established himself as the most conservative member of the Rehnquist Court, often holding views far to the right of his colleagues. He was a staunch originalist who fundamentally rejected the principle of stare decisis, believing that incorrect precedents should be overturned regardless of their longevity. His opinions, though rarely commanding a majority, consistently advocated for a return to a pre-1937 "Constitution in Exile."

Ideological isolation, personal warmth. Despite his extreme judicial philosophy and his near-total silence during oral arguments, Thomas was universally adored by his staff and many colleagues for his effusive good nature.

• Clerk hiring: He meticulously screened law clerks for ideological alignment, ensuring his chambers were a "controversy-free zone" of like-minded conservatives.
• Public persona: He cultivated a public image as a victim of "elites" and a courageous fighter against "ideological fads," often speaking to conservative groups and avoiding "Ivies."
• Personal life: His personal life, including his love for RVing and NASCAR, and his role as a father figure to his grandnephew, provided him with happiness and a connection to "real America."

A consistent, if uninfluential, voice. Thomas's views on issues like the Commerce Clause, states' rights, and gun control were consistently conservative, often pushing for more radical changes than even Scalia. However, his inability to persuade his colleagues meant that his significant majority opinions were rare, and his influence on the Court's overall direction remained limited during the Rehnquist era.

5. Bush v. Gore: A Stain on Judicial Impartiality

The tragedy of the Court’s performance in the election of 2000 was not that it led to Bush’s victory but the inept and unsavory manner with which the justices exercised their power.

Unprecedented intervention. The 2000 presidential election, decided by a razor-thin margin in Florida, presented the Supreme Court with an unprecedented opportunity to intervene in a national political contest. The justices, many with strong political leanings, eagerly seized this chance, ultimately halting Florida's recount and effectively handing the presidency to George W. Bush. This intervention, particularly the majority's perceived partisanship, severely damaged the Court's reputation for impartiality.

O'Connor's influence and the "troika's" shift. Justice O'Connor, a staunch Republican and friend of the Bush family, initially expressed dismay at Gore's apparent victory. She, along with Kennedy and Scalia, pushed for the Court to intervene, driven by a desire to end the perceived chaos and ensure a clear outcome. The majority's decision to grant a stay on the recount, despite the ongoing efforts in Florida to count votes, was a highly unusual and politically charged move.

The controversial ruling. The final 5-4 decision in Bush v. Gore was widely criticized for its weak legal reasoning and its explicit statement that it was "limited to the present circumstances," suggesting it was a one-off ruling designed solely to resolve that specific election.

• Equal Protection: The majority invoked the Equal Protection Clause, arguing that varying recount standards across Florida counties were unconstitutional.
• Lack of remedy: However, the Court offered no practical remedy, effectively ending the recount and ensuring Bush's victory.
• Stevens's dissent: Justice John Paul Stevens's powerful dissent lamented the damage to public confidence in the judiciary, stating, "The identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law."

Souter's devastation. The decision profoundly affected Justice David Souter, who was so shattered by the perceived partisanship that he seriously considered resigning, believing Bush v. Gore mocked the tradition of judicial independence.

6. Anthony Kennedy's Evolving Jurisprudence

The paradox of Bush v. Gore is that the justices’ gift of the presidency to a conservative sent the Court in its most liberal direction in years.

Post-Bush v. Gore transformation. Following the controversial Bush v. Gore decision, Justice Anthony Kennedy underwent a significant ideological transformation, shifting leftward on key social issues. This evolution was largely influenced by his extensive exposure to foreign law and international judicial colleagues, particularly during his summers teaching in Salzburg, Austria. He became increasingly receptive to global legal norms, especially concerning human rights.

Championing gay rights. Kennedy's evolving views were most evident in Lawrence v. Texas, where he authored the majority opinion overturning Bowers v. Hardwick, which had upheld sodomy laws.

• "Sweet-mystery-of-life passage": Drawing on the "right to define one’s own concept of existence" from Casey, Kennedy declared that laws prohibiting consensual sexual conduct between adults demeaned individuals and violated their liberty.
• International influence: He explicitly cited decisions from the European Court of Human Rights, a move that would have been unthinkable for the pre-Bush v. Gore Kennedy.
• Social impact: The ruling, which announced that gay people could not be branded as criminals, was a landmark victory for gay rights, despite Scalia's vehement dissent predicting its use to justify gay marriage.

Opposing the juvenile death penalty. Kennedy also became a leading voice against the death penalty for juvenile offenders. In Roper v. Simmons, he again cited international consensus, noting that the United States stood alone among developed nations in executing minors. This decision, along with Lawrence, solidified Kennedy's role as the new swing vote and a surprising force for liberal outcomes on social issues, much to the dismay of conservatives who had hoped for a different trajectory after Bush v. Gore.

7. Judicial Pushback Against Executive Overreach

“A state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

Challenging the War on Terror. The Bush administration's expansive claims of executive power in the aftermath of 9/11, particularly regarding the detention and interrogation of "enemy combatants" at Guantánamo Bay, met significant resistance from the Supreme Court. Justices, especially O'Connor and Stevens, were wary of unchecked executive authority and the historical precedents of judicial deference during wartime.

Landmark rulings:

• Rasul v. Bush (2004): The Court ruled 6-3 that Guantánamo detainees, despite being non-citizens held in Cuba, had the right to challenge their incarceration in U.S. federal courts. Stevens's opinion highlighted the U.S.'s "complete jurisdiction and control" over the base.
• Hamdi v. Rumsfeld (2004): O'Connor authored a scathing 6-3 opinion, reminding the administration that "a state of war is not a blank check for the President," and that even American citizens designated as "enemy combatants" were entitled to due process.
• Hamdan v. Rumsfeld (2006): Stevens, writing for a 5-3 majority (Roberts recused), rejected the administration's unilaterally established military commissions, insisting they comply with both congressional approval and the Geneva Conventions.

Abu Ghraib and the "torture memo." These rulings were influenced by public disclosures of prisoner abuse at Abu Ghraib and the "torture memo," which provided a narrow definition of torture. These events undermined the administration's credibility and made its legal arguments appear extreme, pushing the Court's majority to defend civil liberties and the rule of law against executive overreach.

8. The Conservative Ascendancy: Roberts and Alito

Quickly, almost instantly by the usual stately pace of the justices, the Court in 2006 and 2007 became a dramatically more conservative institution.

A new conservative majority. The appointments of Chief Justice John Roberts and Justice Samuel Alito Jr. fundamentally reshaped the Supreme Court, solidifying a new conservative majority. This transformation, a long-sought goal of the Republican Party's conservative base, led to a rapid and dramatic shift in the Court's jurisprudence, often overturning or undermining established liberal precedents.

Roberts's strategic minimalism. Chief Justice Roberts, a brilliant and charismatic figure, initially advocated for judicial minimalism—narrow decisions with broad consensus. However, this approach often served as a pretense for significant conservative change.

• Confirmation hearings: Roberts presented himself as an "umpire" who merely applies rules, avoiding specific commitments on controversial issues like Roe v. Wade.
• Early rulings: While some early decisions under Roberts were unanimous, the Court quickly became deeply divided, with a high percentage of 5-4 rulings.
• Substantive shift: Despite the rhetoric of minimalism, the Court under Roberts swiftly moved to the right on issues like abortion, campaign finance, and religious expression, often with Kennedy joining the conservatives.

Alito's predictable conservatism. Alito's appointment, a direct replacement for the centrist O'Connor, ensured a reliable conservative vote. His 1985 job application, stating "I am and always have been a conservative" and expressing disagreement with Warren Court decisions, left no doubt about his ideological leanings. His confirmation, despite a "dreadful" performance, was a foregone conclusion due to Republican Senate control. The new conservative bloc, comprising Roberts, Scalia, Thomas, Alito, and often Kennedy, began to systematically dismantle or limit liberal precedents.

9. The Future of the Court: Ideology Trumps Precedent

So one factor—and one factor only—will determine the future of the Supreme Court: the outcomes of presidential elections.

A polarized judiciary. The Roberts Court, with its clear 4-4-1 ideological split (four liberals, four conservatives, and Kennedy as the swing vote), has become a highly polarized institution where ideology, rather than legal craft or stare decisis, often dictates outcomes. This dynamic ensures that on most controversial issues, the majority will be tenuous and vulnerable to future changes in Court composition.

Elections as destiny. The days when justices surprised the presidents who appointed them are largely over. Modern judicial selection processes, driven by highly organized conservative and liberal advocacy groups, ensure that nominees closely align with the appointing president's ideology.

• Conservative success: The conservative movement, through sustained organization and mobilization, has successfully used presidential elections to shape the Court to its liking, demanding justices who will advance their agenda on issues like abortion, executive power, and religious freedom.
• Second Amendment revival: A prime example is District of Columbia v. Heller, where a 5-4 conservative majority, led by Scalia, overturned decades of precedent to establish an individual right to bear arms, a victory for originalism and conservative activism.

The Court we deserve. The Supreme Court, despite its symbolic detachment, remains a product of democracy, reflecting the best and worst of the American people. Its future trajectory will be determined by the choices made in presidential elections, as presidents continue to appoint justices who will extend their legacies and shape the nation's laws according to their political visions. The marble steps may offer an illusion of permanence, but the Court's direction is ultimately in the hands of the voters.

Last updated: February 20, 2026