Still, however his views had been mischaracterized, Trump did not emphasize judicial appointments as other candidates did. “The next president will have the awesome responsibility to pick up to four Supreme Court justices that will decide issues of life and religious liberty,” Carly Fiorina told the crowds gathered at the March for Life in January 2016.14 Judges were arguably Ted Cruz’s main selling point to voters. The first Hispanic to clerk for a chief justice of the United States, Cruz had personally argued eight cases before the Supreme Court as the solicitor general of Texas.15
In an early debate on September 16, 2015, Cruz attacked Jeb Bush by pointing to the appointments of David Souter and John Roberts as examples of the Bush family’s failure to put “rock-ribbed conservative” jurists on the Court.16 He told Bloomberg News in December 2015 that every Supreme Court appointment he made would be of a “principled judicial conservative.” Lamenting Republicans’ record of picking weak justices who drifted to the left, Cruz promised to fight hard to keep conservatives from being disappointed. “The Republicans have an abysmal record. We bat about .500,” he said. “About half of the nominees Republicans have put on the court have not just occasionally disappointed but have turned into absolute disasters.” He said he would look for judges who had refused to bow to pressure and who had a “long paper trail” of taking principled stands.17
Cruz accurately reflected the concern of politically astute Republican voters. The anxiety wasn’t new, but it was becoming acute.
Supreme Court nominations took on a new importance in Republican politics during the presidency of Dwight D. Eisenhower. Of the five appointments he made to the Supreme Court in his eight years in office, the first was the most consequential: the recess appointment of Governor Earl Warren of California as chief justice.18 That was followed by the appointments of Associate Justices John Marshall Harlan, William Brennan, Charles Evans Whittaker, and Potter Stewart.
Eisenhower’s focus in his Supreme Court appointments was on political, not jurisprudential, considerations. His appointment of Warren was, in part, a reward for withdrawing from the 1952 Republican presidential race, a move that ensured Eisenhower’s success. Because Warren was a Republican, as was Harlan, Eisenhower’s recess appointment of the Democrat William Brennan was a gesture of bipartisanship, and he hoped that naming a Catholic Democrat to the Court in the closing days of his 1956 reelection campaign would help him with northeastern voters.19 Eisenhower’s legal affairs adviser had heard Brennan give a speech that he interpreted as conservative. Brennan became “probably the most influential justice of the century,” according to Scalia, but certainly not as a conservative.20 Eisenhower was known for saying that the two biggest mistakes of his presidency were sitting on the Supreme Court—Warren and Brennan.
Americans remember the Warren Court as the most liberal in the nation’s history. It is true that the results of its decisions—desegregation,21 the banning of prayer in public schools,22 the expansion of rights for those accused of crimes,23 and the elimination of laws against birth control24 —coincided with much of the progressive agenda of the mid-twentieth century. But judicial conservatives’ criticism was focused on the anti-democratic means by which the Court sought to reshape American society. The proper constitutional means to achieve any societal or legal change is legislation passed by elected representatives, not the fiat of unelected judges. Progressives disagreed. Frustrated by their inability to achieve all they wanted through the political process, they applauded each time the Warren Court intervened in their favor. Justice Brennan described the power of these unelected justices with chilling clarity when he told his incoming clerks that the most important rule in the law was the “Rule of Five.” With a majority of five votes, the Court could do anything.
It soon became evident that the Warren Court was willing to rewrite any law to achieve its transformative political desires, regardless of precedent or the Constitution’s clear language. For example, in Griswold v. Connecticut, the Court determined that the Constitution required states to allow contraceptive use by married couples, locating this new “right to privacy” in “penumbras, formed by emanations” of no fewer than six constitutional amendments.25 The dissenters argued strongly that a law may be “offensive,” “uncommonly silly,” “unwise, and even asinine,” but still not run afoul of the Constitution.26 And they expressed concern that allowing judges to overturn laws without a clear constitutional mandate would lead to “a great unconstitutional shift of power” that would “jeopardize the separation of governmental powers” envisioned by the Constitution.27 Griswold became a precedent on which the majority of the Court relied eight years later in Roe v. Wade to establish a constitutional right to abortion.28
Other decisions, such as Brown v. Board of Education, may have been correct in their result but were decided on the basis of sociological studies rather than constitutional and legal principles.29 The renowned Judge Learned Hand, himself an opponent of segregation, criticized the decision at the time because the Court, instead of concluding that any segregation on the basis of race was unconstitutional per se, framed its decisions as bound up in the state of public education and appeared to be acting as a “third legislative chamber” rather than as a judiciary properly limited to “keeping Congress and the states within their accredited authority.”30
Some of the Warren Court’s decisions, particularly Engel v. Vitale, which blocked public schools from opening with a nondenominational prayer even when non-compulsory, activated a grassroots movement of evangelicals. The Court cited not a single precedent for its decision, which conservatives viewed as an exercise of raw political power. Americans inundated both the Supreme Court and Congress with mail. In his doctoral dissertation on the rise of the religious right, Ben Sasse, now a U.S. senator from Nebraska, wrote, “The House of Representatives evaluated an unprecedented 145 proposed constitutional amendments in 1964 to reestablish school prayer by changing the First Amendment, followed up by scores more proposals in 1966 and 1970.”31
The Court’s constitutional improvisation fueled Barry Goldwater’s 1964 presidential campaign, an apparently devastating defeat now widely regarded as the genesis of the conservative movement that would eventually carry Ronald Reagan to the White House. Goldwater decried the Court’s diktats on reapportionment and prayer in schools, calling them an exercise of “raw and naked power,” proof that “of all three branches of Government today’s Supreme Court is the least faithful to the constitutional tradition of limited government, and to the principle of legitimacy in the exercise of power.”32 Echoing the Griswold dissenters, Goldwater declared that “the job of keeping the law up to date should be in the hands of the legislatures, the Congress and the common law courts, not just in the hands of the nine appointed Justices.” If the policy that resulted was not the one favored by conservatives, so be it. “[T]o a constitutionalist, it is at least as important that the use of power be legitimate than that it be beneficial.”33
Following the decision in Miranda v. Arizona, which went beyond constitutional prohibitions on forced self-incrimination to mandate the now-famous formulation of rights recited at every arrest, Richard Nixon made “law and order” the central theme of his presidential campaign in 1968.34 He promised to nominate “strict constructionists who saw their duty as interpreting and not making law.”35 Nixon thought strategically about his judicial appointments, but his constitutional views were in fact more liberal than those of many of his voters.36 While he really did care about law and order, he was not noticeably devoted to constitutional originalism, and his appointments to the Supreme Court were not much better than Eisenhower’s. Chief Justice Warren had already announced his retirement before Nixon took office, but President Lyndon B. Johnson’s attempt to replace him with his friend and political ally Abe Fortas ran into a Senate filibuster. Nixon appointed Warren E. Burger, who, though not the radical that Warren was, oversaw seventeen years of muddled opinions, including the infamous Roe v. Wade. Nixon also appointed Associate Justices Harry Blackmun, the author of Roe, Lewis F. Powell, and William Rehnquist. Only Rehnquist was consistently a constitutionalist.