During the bitter campaign of 1968, half a century ago, Richard M. Nixon tapped anger over the liberalism of the so-called Warren Court - the Supreme Court led by Nixon’s longtime rival, Chief Justice Earl Warren. Even then, the anger was nothing new. For years, billboards demanding “Impeach Earl Warren” had dotted the byways of the South and Midwest, put there by conservatives outraged by the court’s landmark decisions regarding civil rights, voting rights, religion, free speech, sexual liberation, protections for accused criminals and more.
But Nixon’s presidency was not the triumph conservatives desired. Like many presidents before him, Nixon took an offhand approach to appointing justices. When Warren retired, Nixon’s choice to replace him was the vain but lightweight Warren Burger. His pick for associate justice, Harry Blackmun, was Burger’s pal from Minnesota. A conservative dud, Blackmun entered the liberal pantheon with his abortion rights opinion in Roe v. Wade. Richmond lawyer Lewis Powell Jr. was 64 when Nixon appointed him, so his time on the court was short by today’s standards. Only William Rehnquist, who later became chief justice, proved to be a powerful and enduring conservative force - and Nixon might not have nominated him if his preferred choice had been faster to return a phone call.
Four vacancies: only one accidental home run. But the conservatives didn’t fold. Instead, the right dug in for a long war to control the Supreme Court. It was a war of ups and downs: They were disappointed by President Gerald Ford’s nominee, John Paul Stevens. And again by President George H.W. Bush’s choice of David Souter. Even conservative beacon Ronald Reagan fell short of purity in their eyes when he promoted the agile compromisers Sandra Day O’Connor and, after stalwart originalist Robert Bork was voted down, Anthony Kennedy.
Through each letdown, conservatives maintained their focus and, in the process, they transformed the selection of justices from a haphazard art to a polished science. This science has changed - probably forever - the character of the Supreme Court.
With the retirement of Kennedy, announced on Wednesday, conservatives stand at the brink of claiming their prize. President Donald Trump intends to swap the idiosyncratic Kennedy for a solidly reliable conservative justice. The resulting five-vote majority of rock-ribbed conservatives will surely dominate the court with a philosophical unity unseen in the United States since Warren’s long-ago heyday.
In making his choice, Trump will likely rely on the precision-tooled machinery of the Federalist Society. Founded in the early 1980s amid frustration over the continued left lean of the courts, the group rallied right-leaning legal scholars and government officials to create a pipeline for young conservatives to rise without friction from liberal pressures. Never again should Republican presidents have to guess, as Nixon did, at the bona fides of a potential judge: The Federalist Society would foster the development of a farm system for the future bench. Within the community - which now numbers in the tens of thousands - conservative ideologues bolster their confidence in their own ideas.
The group’s logo features a bust of James Madison, principal author of the Constitution, but it might as well be a likeness of the late justice Antonin Scalia. As faculty sponsor of the first chapter at the University of Chicago’s law school, Scalia was present at the creation, and when Reagan added him to the Supreme Court in 1986, Scalia became a role model and yardstick for conservative judges of the future.
Today, the court is filling up with justices stamped from Scalia’s mold. Like him, they were appointed relatively young, in hopes they would have long tenures ahead of them. They arrived at the court with track records that made their views clear - but unmuddied by controversy. They spoke the language of judicial independence, yet they all knew they were taking sides in the long battle for the soul of the highest court.
Long gone are the days when a president’s political pal would serve a two-year cup of coffee on the court, as did President Franklin Roosevelt’s appointee, James Byrnes. And gone are the days of philosophical surprises, such as Nixon’s Blackmun, or Dwight Eisenhower’s William Brennan. In 1956, the Republican Eisenhower relied on his attorney general to vouch for the conservative leanings of that genial New Jersey judge. Herbert Brownell got it wrong: Over a 34-year career, Brennan proved to be perhaps the most influential liberal in the history of the court.
Trump’s nominee will be a well-known quantity, a relative youth with the stamp of the Federalist Society glistening on his or her forehead. The actuarial tables will promise decades of dependable service to the conservative cause. And with that, conservatives will arrive at the magic number toward which their movement has been working all these years.
Today’s politics is so focused on winning the next election, the next news cycle, or even just the next Twitter thread. This moment reminds us that politics also involve the long game. Now Democrats will have to play it.
David Von Drehle is a columnist with The Washington Post.