Allegheny College
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Projects by Department or Interdivisional Program
Academic Year 2016-2017
2017-04-17
The Supremes: How the Death of Liberty of
Contract Led to Increased Tandem
Polarization and Changed Supreme Court
Nominations
Kaufman, Sofia
http://hdl.handle.net/10456/42810
All materials in the Allegheny College DSpace Repository are subject to college policies and Title 17
of the U.S. Code.
A​LLEGHENY​ C​OLLEGE
​
POLITICAL SCIENCE 610
HISTORY 610
SENIOR PROJECT
Sofia R. Kaufman
The Supremes: How the Death of Liberty of Contract Led to Increased Tandem
Polarization and Changed Supreme Court Nominations
Department ​of​ Political Science
Department ​of​ History
April 17, 2017
Kaufman 1
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Sofia Kaufman
The Supremes: How the Death of Liberty of Contract Led to Increased Tandem
Polarization and Changed Supreme Court Nominations
Submitted to the Departments of Political Science and History of Allegheny College in partial
fulfillment of the requirements for the degree of Bachelor of Arts.
I hereby recognize and pledge to fulfill my responsibilities as defined in the Honor Code and to
maintain the integrity of both myself and the College community as a whole.
____________________________________
(PRINTED NAME)
____________________________________
(​HONOR CODE SIGNATURE​)
Approved by:
____________________________ Brian Harward
____________________________ Angela Keysor
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Table of Contents
Chapter 1: Introduction and Methods……………………………………………………………..6
Chapter 2: Literature Review………………………………………………………………….....10
Chapter 3: Case Studies
Franklin Delano Roosevelt……………………………………………………………....28
Harry Truman………..…………………………………………………………………...32
Dwight Eisenhower……...……………………………………………………………….39
John F. Kennedy……….……………………………………………………………..….44
Lyndon B. Johnson………...………………………………………………………….....47
Richard Nixon…………..………………………………………………………………..53
Gerald Ford……………………………………………………………………………....60
Ronald Reagan…………………………………………………………………………...62
George H. W. Bush……………………………………………………………………....74
William Clinton…………………………………………………………………...…......77
George W. Bush………………………………………………………………………….80
Barack Obama………………………………………………………………………..…..82
Donald Trump………………………………………………………………………...….86
Chapter 4: Analysis……………………………………………………………………………....88
Chapter 5: Conclusion…………………………………………………………………………....92
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Chapter One: Introduction
As one historian astutely noted, every sitting President is an ex-President.1 While that
statement may seem trivial and obvious, it is important to note that all President have to grapple
with the idea of a legacy and know they are limited by the twenty-second amendment. If a
President is lucky, he will have one or two policies for which he is remembered. At the same
time Presidents have preferences, preferences that are both policy based and ideological, and
have a desire to act upon both of these preferences. Every President wants to leave a legacy and
be remembered for successful policies.
Focusing on all Presidents post-FDR, every President has had strong ideological
preferences for the nation that he wished to enact to either through major policy initiatives or
simply just throughout his entire presidency through various pieces of legislation. Because
Presidents have preferences, Presidents nominate Justices to the Supreme Court that reflect his
ideological preferences. The only President not to do this was Eisenhower and he would later
state that he regretted his nominations. Since the term of a President is, at most, eight years,
Supreme Court Justices are a great method for Presidents to exert long-term influence over the
nation.
Since the late 1930s, there has been an increase in polarization with Supreme Court
nominees. Justices nominated by Presidents who were Democrats have stayed relatively level
while nominees from Republican Presidents have become increasingly more conservative (as
shown by the graph on the following page):
1
Aberbach, J., & Peterson, M. (2005). ​The Executive Branch​. Oxford: University Press. 452
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Graph Courtesy of Cameron, Kastellec, and Park, “Voting for Justices: Change and Continuity in
Confirmation Voting 1937--2010”
The reason for this, as this study will discuss, is due to the constitutional revolution of 1937, the
death of Liberty of Contract, the liberal norms of the Court, the desire of Republican Presidents
to return to a time where government regulations were zero to none, the re-alignment of both
major parties, and the fact that Republican Presidents are nominating increasingly conservative
nominees to the Court, as illustrated by the aforementioned graph.
At the same time of the increase in polarization of Supreme Court nominees, there has
been an increase in Congressional polarization, which is reflected in the polarization of Supreme
Court nominations. When Cameron, Kastellec, and Park quantified the ideologies of senators,
they found polarization levels “in the Senate [were] low from the late 1930s to the mid-1950s. It
then jumped upward somewhat but remained stable until the late 1970s. Since then, however, it
has skyrocketed. Current levels of ideological polarization in the Senate resemble those after the
Civil War.”2 In addition, Cameron, Kastellec, and Park pose the question (but do not answer) of
why do Republican Presidents get more seemingly conservative nominees while Democratic
Presidents do not get more liberal nominees. The answer for this is that the norms of the Court
2
Cameron, C., Kastellec, J., & Park, J. (2013). “Voting for Justices: Change and Continuity in Confirmation Voting
1937–2010.” ​The Journal of Politics.
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have been liberal since the death of Liberty of Contract and Republican Presidents have been
trying to shift the norms of the Court to be more conservative, like they were before 1937.
Graph Courtesy of Cameron, Kastellec, and Park, “Voting for Justices: Change and Continuity in
Confirmation Voting 1937--2010”
The question that arises, naturally, is what is causing this tandem polarization between
Supreme Court nominees and the Senate. One explanation for this could be as simple as the fact
that Presidents, who nominate Supreme Court Justices, are products of political parties that make
up the Senate. Since American political parties have re-aligned and shifted as a result of FDR’s
policies, the increase in polarization is reflected in Supreme Court nominations, since Presidents
nominate Supreme Court Justices. Since a President needs the backing of his party and if
Congress is polarized as a result of political parties, Supreme Court nominations will become
increasingly more polarized over time.
In 1937 FDR desperately needed his New Deal to work and the Supreme Court kept
striking it down, citing a Liberty of Contract. To force the Court into accepting his New Deal,
FDR threatened to pack the Court, which scared the Court into shifting their stance in ​West
Coast Hotel Co. v. Parrish​.3 The reason why the Court refused to accept his New Deal was due
to the doctrine of Liberty of Contract that the Court followed. Liberty of Contract did not allow
3
​West Coast Hotel Co. v. Parrish​ (1937)
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for government regulations in business practices, but the New Deal sought to regulate businesses
(by forcing them to abide by minimum wage laws, among other initiatives) with the hope that the
legislation would get the country out of the depression. Since the ​West Coast Hotel Co. v.
Parrish​ decision, Liberty of Contract has been long gone. Liberty of Contract was an idea
championed by conservatives, since it called for limited government regulations. After the New
Deal, the parties started to re-align and polarization increased within the parties and as a result,
Congress became polarized as well. Since the death of Liberty of Contract, conservative
Presidents have sought to return to a time of limited government regulations, and as a result, seek
justices that believe in limited government regulations. Liberty of Contract has polarized the
Court. The polarization of the parties has certainly led to more conservative justices but it has
also led to more polarized justices in general, appointed by both Republicans and Democrats.
Thesis: There is an increase in tandem polarization in Supreme Court nominees because of
Presidential priorities, party realignment, and Presidential preferences. Republican Presidents
want to return to a pre-FDR Court where their ideologies were the norm. Liberal ideology has
become the norm of the Court in a post FDR world. All of this is occurring because of the
increase of conservatism within the Republican party (since Presidents are the results of their
parties and nominate justices to the Court) and the re-alignment of the parties that occurred after
the New Deal, hence the increase in conservative nominees over time.
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Chapter Two: Literature Review and Methods
All literature suggests that Presidents nominate justices that reflect their political
ideology. What the literature lacks is a coinciding discussion regarding the increase of
polarization in Supreme Court nominations and how a shift in political ideology from both
parties has affected the nomination process. While a President may be dealing with external
factors (interest groups, Congressional makeup), the President will not nominate a justice that
does not reflect his ideological preferences in some way, shape, or form. In addition, Presidents
are the result of their parties, so if there is a shift in the President’s party, the policies of the
President will shift with the party. A President may only hold office for eights years but his
nominee has the opportunity to implement his political ideology for decades. As one judicial
scholar put it; “In the long run FDR transformed the Court, but during his first term the Court
nearly killed his New Deal. In the long run, to paraphrase Lord Keynes, all Presidents are
ex-Presidents….Until the twenty-second Amendment is repealed, it is unlikely that any President
will be able to equal FDR’s performance in reorienting the judicial branch.”4 While the literature
discusses increased polarization in the Senate and polarization in judicial nominees, the literature
does not discuss this tandem polarization and the role that FDR’s constitutional revolution had in
causing this tandem polarization, as well as the role FDR had in the re-alignment of the political
parties and the effect that had on Supreme Court nominations.
Washington, Adams, and FDR were the three Presidents who held the greatest influence
over the Court.5 Washington and Adams, being the first two Presidents, got to appoint multiple
justices simply by the timing of their presidencies. FDR, on the other hand, was President for
4
5
Aberbach, J., & Peterson, M. (2005). ​The Executive Branch​. Oxford: University Press. 452
Aberbach, J., & Peterson, M. (2005). ​The Executive Branch​. Oxford: University Press. 452
Kaufman 11
four terms, giving him the opportunity to put eight justices on the Court. In addition, FDR forced
his ideology on the Court when he threatened a Court-packing plan to save his New Deal. FDR,
by all accounts, was the President that held the most influence on the Court after his tenure in
office ended.
The story of this tandem polarization begins in 1933 with the implementation of the New
Deal. Elected during the Depression, FDR was tasked with pulling the nation out of the
economic downturn of the 1930s. FDR’s New Deal was focused on the government regulating
businesses since Hoover essentially thought the market would sort itself out.6 The issue that FDR
faced was the Liberty of Contract doctrine that the Court subscribed to and the control it had
over the law. Liberty of Contract focuses on section one of the Fourteenth Amendment, stating
“No state shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any state deprive any person of life, liberty, or property,
without due process of law.”7 The way the Court interpreted the word “liberty” was that of a
Liberty of Contract, a liberty that allowed businesses to exist without regulations imposed by the
federal government.
The life of Liberty of Contract was controlled by the doctrines of dual federalism and
substantive due process. In the late 19th and early 20th century, the Court believed that the
government that governs the least governs the best. Social Darwinism was commonly accepted,
which led to laissez-faire capitalism and a negative perception of the federal government. The
Court took a dual federalist approach, which calls for a very literal reading of the constitution
and sees the Tenth Amendment as a powerful brake on the power of the national government and
Liebovich, Louis. (1994). ​Bylines in Despair: Herbert Hoover, The Great Depression, and the U.S. News Media​.
C.T.: Praeger Publishers.
7
U.S. Const. Amend XIV ​§ 1
6
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uses the tenth to strike down federal legislation that interferes with the powers given to states.
The Court sought to protect the rights of states, and thus, limiting the ability of the federal
government to get involved in what they perceive to be state matters. In the heyday of the dual
federalist perspective of the Court (1888-1936), the Court used the direct/indirect effects test8 to
determine if the Congressional statute would be upheld. The Court also applied substantive due
process to the fourteenth amendment when it says “[N]or shall any State deprive any persons of
life, liberty or property, without due process of the law.”9 The Court focused on the word
“liberty,” and interpreted this as a Liberty of Contract, which justified greater economic freedom,
free from interference from the federal government. “By giving particular substance to that word
[liberty] — a concept contradictorily known as ‘substantive due process’ — advocates of greater
economic freedom sought to keep government from enacting policies that regulated the
economy.”10 Liberty of Contract, as Ducat argues, killed off any and all social legislation; “the
doctrines of dual federalism and substantive due process constituted a lethal sequence of
knock-out punches that killed off almost all social legislation.”11
The Liberty of Contract era really was the one-two punch to any and all social legislation
from 1888-1936. The Court was interested in keeping the federal government out of the private
The direct/indirect effects test comes from ​United States v. E.C. Knight​ (1895), where the Court, by ruling on the
Sherman Anti-Trust Act and the commerce clause, said that the tenth amendment has meaning. If the Court sees the
commerce clause as broad, the 10th means nothing. The Court is protecting state power by viewing the commerce
clause in a narrow view. ​EC Knight​ is the mechanism by which they strengthen state powers. The direct/indirect
effects test asks: is it manufacturing (indirect effect) or distribution (direct effect)? If it is manufacturing (an indirect
effect on interstate commerce), it’s unconstitutional to limit. Only those activity that have a direct effect
(distribution) on interstate commerce can be regulated by Congress. Otherwise, it is up to the state. Also, Congress
cannot decide what has a direct/indirect effect, only the Court can. But, if in regulating distribution, Congress has an
effect on production, it is unconstitutional. This means that there is very little that Congress can actually regulate.
Ducat, C. (2013). ​Constitutional Interpretation​ (10th ed., International ed.). Belmont, Calif.: Wadsworth, Cengage
Learning.
9
​U.S. Const. Amend. XIV
10
Ducat, C. (2013). ​Constitutional Interpretation​ (10th ed., International ed.). Belmont, Calif.: Wadsworth, Cengage
Learning. 444.
11
Ducat, C. (2013). ​Constitutional Interpretation​. 446
8
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sector. The Court continued to do this until FDR’s Court packing plan, when FDR argued that
the Court was out of step with public opinion.
Before the rise of Liberty of Contract the Court had ruled a few times on interstate
commerce and federal regulation. In ​Gibbons v. Ogden​ (1824) the Court was more willing to
allow Congressional statutes controlling interstate commerce. In ​Brown v. Maryland​ (1827), it
was ruled that the state had control when the package had been opened. However, when the
belief of social darwinism became widely accepted, as well as laissez-faire capitalism, there was
a shift in the Court to a belief in Liberty of Contract, a doctrine free of government regulation.12
When Liberty of Contract cases first started arising they mostly dealt with government
infringement on state commerce. The way the Court got at state statutes interfering was via the
Fourteenth Amendment. This was first seen in the dissents of the The Slaughterhouse Cases
(1873). In their dissents, Justice Fields and Justice Bradley stated that under due process of the
Fourteenth, there is a right to practice business transactions free from unreasonable government
interference. Said Justice Bradley, “In my view, a law which prohibits a large class of citizens
from adopting a lawful employment, or from following a lawful employment previously adopted,
does deprive them of liberty as well as property, without due process of the law…such a law also
deprives those citizens of the equal protection of the laws, contrary to the last clause of the
section.”13
In Justice Bradley’s opinion, there was the first use of substantive due process for the
word “liberty.” Justice Bradley was assuming that liberty extends not only to people when it
comes to rights such as speech and religion, but to people when it comes to business practices. In
12
13
Ducat, C. (2013). ​Constitutional Interpretation​.
​Butchers’ Benevolent Association v. Crescent City Livestock Landing & Slaughterhouse Co.​ (1873).
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Munn v. Illinois​ (1877) Justice Fields dissented again claiming a violation of due process of the
Fourteenth, stating that “the business of a warehouseman was, at common law, a private
business, and it is so in its nature…No reason can be assigned to justify legislation interfering
with the legitimate profits of that business, that would not equally justify an intermeddling with
the business of every man in the community, so soon, at least, as his business became generally
useful.”14 In 1897, there was the first ruling that economic liberty should be housed under the
Due Process Clause, in ​Allgeyer v. Louisiana, ​when the Court ruled that “‘liberty’ protected by
the Due Process Clause means ‘not only the right of the citizen to be free from the mere physical
restraint of his person’ but the ‘right…to be free in the enjoyment of all his faculties; to be free to
use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful
calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts
which may be proper, necessary, and essential to…. carrying out….the[se] purposes.’”15 ​Allgeyer
essentially opened the door for Liberty of Contract and the Court using the direct/indirect test to
decide if Congress shall have authority over regulation.
Lochner v. New York ​(1905) dealt with the Fourteenth Amendment and Liberty of
Contract. The Court could not rule on the Tenth Amendment in Lochner because the state of
New York was using their reserved powers. The Court used the Due Process Clause of the
Fourteenth to provide for a Liberty of Contract. Said Justice Peckham, in the decision, “The
statute necessarily interferes with the right of contract between the employer and employees,
concerning the number of hours in which the latter may labor in the bakery of the employer. The
14
15
​Munn v. Illinois​. (1877).
​Allgeyer v. Louisiana​ (1897).
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general right to make a contract in relation to his business is part of the liberty of the individual
protected by the 14th Amendment of the Federal Constitution.”16
In ​Lochner​ it became clear to Justice Holmes that the Court simply did not like regulation
of business. The Court was going to use the Tenth when it applied to the federal government
(Dual Federalism) and Fourteenth when it applied to states (Liberty of Contract). In his dissent,
Holmes stated that the Court was ruling based off of an opinion “which a large part of the
country does not entertain…the 14th Amendment does not enact Mr. Hubert Spencer’s Social
Statics.”17
In ​Muller v. Oregon ​(1908), the Court ruled to regulate working conditions, not because
they were changing their mind on Liberty of Contract, but because women need protection and
were considered to be the more feeble sex. The Brandeis brief argued that data showed how long
working hours hurt women’s health, especially reproductive health. The Court believed in Social
Darwinism, and by protecting women’s reproduction, they were protecting the human race as a
whole. ​Muller​ best illustrates how influenced the Court was by social darwinism. The Court
would rather have statutes that interfere with the Liberty of Contract than a weakened society.
Not all cases could be dealt with under the Fourteenth. In ​Adkins v. Children’s Hospital
(1922), the Court struck down a federal minimum wage statute, under the Fifth, further proving
that Liberty of Contract ruled the day. The Court ruled that the federal government cannot pass a
law regulating labor conditions. Justice Sutherland stated that establishing a minimum wage
means that the workers would have worked for less, and therefore, minimum wage was a forced
extraction from businesses.18 The government was setting up people who ought not to prevail,
​Lochner v. New York​. (1905).
​Lochner v. New York​.​ ​(1905).
18
Ducat, C. (2013). ​Constitutional Interpretation​.
16
17
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and that was unconstitutional. If the workers wanted to work for a lower wage, it was to be their
liberty to work for a lower wage. The government, in the Court’s view, could not step in and tilt
the scales.19
This one-two punch using the direct/indirect test under both the fifth and the fourteenth
gave rise to Liberty of Contract and the idea of dual federalism. By the 1930’s the country was in
the middle of the great depression and FDR wanted to implement the New Deal, which was
difficult given the restrictions the Court had put on the regulations of businesses.
Due to FDR’s radical beliefs and his undying willingness to do anything to make the
New Deal successful, some have dubbed FDR “the pragmatic polarizer”20 since his actions were
bold, forcing an opposition to form around his beliefs. A political scientists Robert Smith and
Robert Seltzer state:
“He broke with the old order and established a new one. But in the context of the
American tradition the New Deal was an aberration occasioned by a unique set of
circumstances -- the crisis of the Great Depression, oversized partisan majorities
in Congress, multiple popular insurgencies, and an activist, inspirational
President. There were, however, powerful forces that never reconciled themselves
to the New Deal. Despite multiple lost battles, they did not surrender. Instead,
they organized a conservative movement to, in the words of one of its founders,
‘stand athwart history, yelling stop.’ In 1964 that movement captured the
Republican Party and nominated one of its own. In 1980 it elected one of its own
to the presidency, who became the second great polarizer.”21
The legacy of FDR is one of his opposition. Without FDR’s pragmatic and controversial actions,
the polarization that emerged would not have been as strong as it was; strong enough to change
the Republican platform and put forth subsequent Presidential nominees. While FDR did not
Ducat, C. (2013). ​Constitutional Interpretation​.
Smith, R.; Seltzer, R. (2015). ​Polarization and the Presidency: From FDR to Obama​. Boulder.: Lynne Rienner
Publishers, Inc.
21
Smith, R.; Seltzer, R. (2015). ​Polarization and the Presidency: From FDR to Obama​.
19
20
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invent polarization he certainly helped further existence of it in the twentieth and twenty-first
century.
The DW Nominate Scores statistically prove that Congress is becoming more and more
polarized. In fact, the 112th Congress was the most polarized Congress ever, including the years
of Reconstruction. These two graphs illustrate the growing polarization best:
22
The ​Washington Post​ explained the increase in polarization the best; “The Democratic caucus
got more liberal this past Congress as a lot of Blue Dogs and conservative Southern Dems lost
their seats in the 2010 elections, and in general the part has been getting gradually more liberal
since the 1930s.”23 In addition, “from the ‘30s to the 70s, the Republican caucus was slowly
getting more liberal too. But around 1976, it suddenly shifted and grew rapidly more
conservative, and has continued to do so ever since.”24
Because the Democrats have gotten more liberal and Republicans have become more
conservative, it is harder for Congressmen to reach across the aisle and make bipartisan
22
Graphs courtesy of voteview.com and Cameron, Kastellec, and Park
Matthews, D. (2013, January 17). “It’s Official: The 112th Congress was the most polarized ever.” ​The
Washington Post​.
24
Matthews, D. (2013, January 17). “It’s Official: The 112th Congress was the most polarized ever.” ​The
Washington Post​.
23
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legislation. It is harder for both major parties to strike deals with one another, and, as a result,
voting patterns and ideology has become more polarized.
The reason for this polarization, some argue, could have to do with an increase in unified
party ideology. As the ​Washington Post​ argues, “Now that parties are more unified, people who
would have once been liberal Republicans are Democrats, and people who would have once been
conservative Democrats are Republicans, so those same deals don’t happen to be bipartisan even
when they have the same types of folks backing them.”25 Those conservative Democrats and
liberal Republicans simply do not exist anymore, which is difficult when trying to reach a
bipartisan resolution.
In addition to the two parties simply being polarized, the median legislator (on the DW
Nominate Scale) between both houses of Congress has grown tremendously over time; meaning
that both party medians are not close to one another anymore, again, making bipartisan efforts
difficult:
26
Matthews, D. (2013, January 17). “It’s Official: The 112th Congress was the most polarized ever.” ​The
Washington Post​.
26
Enten, H. (2014, July 3). “The House and Senate Are the Most Divided They’ve Been in Our Lifetimes.”
25
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As FiveThirtyEight argues, the “prevailing view is that Republicans have moved further to the
right than Democrats have moved to the left…..Basically -- and this will shock no one -Congress is a mess: The two parties are acres apart, and the two branches are the furthest apart
they’ve been in our lifetime.”27
Theriault and Rohde argue that the House has always been more polarized than the
Senate, although that started to change in the mid-90s with the election of conservative house
members to the senate, like Gingrich and Gephardt. “The 1990s saw an influx of ideologically
committed conservatives into the Senate, with many of them being veterans of the highly
partisan House….Most of them saw the Senate as another forum to advance the cause of the
Republican party and their conservative philosophy on a national scale.”28
This increase in polarization could also be a result of the changing ideologies of
Americans as a whole. Pew Research center reports “the overall share of Americans who express
consistently conservative or consistently liberal opinions has doubled over the past two decades
from 10% to 21%. And ideological thinking is now much more closely aligned with partisanship
than in the past. As a result, ideological overlap between the two parties has diminished: Today,
92% of Republicans are to the right of the median Democrat, and 94% of Democrats are to the
left of the median republican. Partisan animosity has increased substantially over the same
period. In each party, the share with a highly negative view of the opposing party has more than
doubled since 1994. Most of these intense partisans believe that the opposing party’s policies
‘are so misguided that they threaten the nation’s well-being.”29 Yet, as Pew points out, most
27
Enten, H. (2014, July 3). “The House and Senate Are the Most Divided They’ve Been in Our Lifetimes.”
Theriault, S.; Rohde, D. (2011). “The Gingrich Senators and Party Polarization in the U.S. Senate.” ​The Journal of
Politics​, Vol. 73 (4), pp. 1011-1024.
29
Pew Research Center. (2014, June 12). “Political Polarization in the American Public: How Increasing Ideological
Uniformity and Partisan Antipathy Affect Politics, Compromise and Everyday Life.”
28
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Americans do not have a uniformly conservative or liberal views. Most believe that both parties
should meet in the middle and work together, however, it is the ideologically extreme who make
their voices heard and run for office.
Since Democrats and Republicans are more ideologically separated, bipartisan efforts and
compromise are harder and harder to achieve.30 According to Pew, looking at the DW-Nominate
scores, in the 1970s there was overlap between the two parties; but by the 1980s it began to
change, and by the 1990s “the overlap between the most conservative Democrat and the most
liberal Republican had fallen to nine House members and three senators. By 2011-12 there was
no overlap at all in either chamber.”31 Pew hypothesizes that this could have something to do
with geography in conjunction with ideology. “The combined House delegation of the six New
England states, for instance, went from 15 Democrats and 10 Republicans in 1973-74 to 20
Democrats and two Republicans in 2011-12. In the South the combined House delegation
essentially switched positions: from 91 Democrats and 42 Republicans in 1973-74 to 107
Republicans and 27 Democrats in 2011-12.”32
While Pew admits that one cannot know with certainty what caused the polarization, they
know that polarization creates a less productive Congress; “Through the end of May, the current
Congress had enacted 89 pieces of substantive legislation….since it opened in January 2013. A
decade ago, at the equivalent point in its term, Congress had enacted almost twice as many
substantive laws.”33
30
Pew Research Center. (2014, June 12). “The polarized Congress of today has its roots in the 1970s.”
Pew Research Center. (2014, June 12). “The polarized Congress of today has its roots in the 1970s.”
32
Pew Research Center. (2014, June 12). “The polarized Congress of today has its roots in the 1970s.”
33
Pew Research Center. (2014, June 12). “The polarized Congress of today has its roots in the 1970s.”
31
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Congress has become more polarized which is illustrated best during Supreme Court
nominations. While the President gets to appoint the nominee, the Senate has to vote in favor of
the nominee; which can be difficult in a polarized government. Cameron, Kastellec, and Park
point out four potential reasons for this increase in polarization among Supreme Court
nominations; changes in the senate, changes in the nominees, changes in the political
environment, and changes in senators’ evaluative criteria.34 But while voting on Supreme Court
nominations have become increasingly polarized, it is not the case that Presidents are nominating
moderates to get their nominees on the Court and to avoid conflict. In fact, Republican
Presidents are still nominating conservative nominees, Democratic Presidents are still
nominating liberal nominees. This graph best illustrates this ideological polarization in nominees
over time:
Trump nominated Neil Gorsuch to the bench in a polarized climate, and Gorsuch is no moderate.
In fact, he is slightly less conservative than Thomas but more conservative than Scalia was,35
which shows that Republican Presidents are nominating increasingly more conservative justices,
34
Cameron, C., Kastellec, J., & Park, J. (2013). “Voting for Justices: Change and Continuity in Confirmation Voting
1937–2010.”
35
Parlapiano, A.; Yourish, K. (2017, February 1). “Where Neil Gorsuch Would Fit on the Supreme Court.” ​The New
York Times​.
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justices that could very well have ruled in favor of Liberty of Contract (given their ideological
beliefs). Presidents, even in a climate with heightened polarization, still nominate justices based
on their preferences. Those preferences are still reflected in their nominees.
In Cameron, Kastellec, and Park’s article, a tandem polarization in Supreme Court
nominations, as well as the senate, is exposed, although they are unsure of what is causing that
tandem polarization:
The Senate has become vastly more polarized than it was in the 1940s and
1950s. But equally striking is the increased polarization of Supreme Court
nominees put forward by Presidents, especially Republican Presidents since
about 1970. As measured in the first DW-NOMINATE dimension, centrist
nominees have largely vanished. The contrast with the 1940s and 1950s is
dramatic. In short, Supreme Court nominations reveal not just one polarization
but two: a tandem polarization in both the Senate and the nominees. Obvious
questions are: What are the causes of the tandem polarization? And, what are
the consequences? The causes of Congressional polarization are hotly debated
and, we think it fair to say, a consensus remains elusive (Quirk 2011). Much
less discussed is the other half of the tandem polarization evident in Supreme
Court nominations, the ideological polarization of the nominees. On the one
hand, Presidential selection of relatively extreme Supreme Court nominees may
not be surprising since it is consistent with a picture of ideologically driven
Presidents. Indeed, agenda-driven Presidents are a major topic in recent studies
of the presidency…. On the other hand, recent studies of cabinet officials
suggest Presidents often nominate moderates as well as more extreme
individuals. In that sense, the extreme polarization of Supreme Court nominees
presents something of a puzzle. What is special about Supreme Court
nominations?
This tandem polarization is showing the increase in conservatism within the Republican
party and the DW Nominate Scores do a nice job quantifying the increase of conservatism within
the Republican party, but that does not answer the when and the how. Re-alignment literature
helps explain this shift and rise in conservatism in the twentieth century. As James Sundquist
argues; “most of what has appeared as party realignment in the decades since the 1930s -including much of what is happening at the present time -- has to be understood as simply a later
Kaufman 23
phase of the realignment of the 1930s, a phase during which the new alignment settled into
place.”36 This realignment occurred in both the North and South to the extent that it played a role
in the increase of tandem polarization that is occurring today. As Sundquist states, “In the North,
delayed realignment brought resistant areas of one-party Republican domination into consistency
with the two-party alignment. In the South, the process correspondingly converted one-party
Democratic areas into areas of two-party competition. As the North became more Democratic,
the South more Republican, the trends appear as mirror images.”37
The re-alignment did not happen immediately, as Sundquist argues, it took decades. Says
Sundquist:
“In a kind of mirror image of what was happening in the North, many southern
Democrats found themselves at the anti-New Deal pole as the country polarized
around the issues of the New Deal, just as many northern Republicans found
themselves to be New Dealers. And the southern conservatives were as acutely
uncomfortable in a party led by Franklin D. Roosevelt as the northern
progressives were in a party cast in the image of Herbert Hoover. Like the
Roosevelt Republicans, they could resolve their conflict very simply by changing
parties. But the barriers to such a course were even greater in the Solid South than
in the one-party strongholds of the North. So the process of realignment set in
motion in the 1930s, which took as long as three decades to work its way to
completion in the North, gathered momentum much more slowly in the South.”
Recalling the graphs illustrating Senate polarization, the polarization began almost immediately
after Roosevelt left office. The New Deal forced government regulations on businesses to help
the country escape the Great Depression. Southern Democrats opposed this and Northern
Republicans supported it. As the parties became more cohesive over time, the polarization
increased. At the same time, the Republican party has become more conservative which has been
Sundquist, J. (1983). ​Dynamics of the Party System: Alignment and Realignment of Political Parties in the United
States​. Washington, D.C.: The Brookings Institution.
37
Sundquist, J. (1983). ​Dynamics of the Party System: Alignment and Realignment of Political Parties in the United
States​.
36
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reflected in their Supreme Court nominations, since Presidents are the result of their parties, and
a President is not going to appoint a justice of whom his party does not approve.
The constitutional revolution grew out of FDR’s opposition to the Liberty of Contract but
his opponents did not take issue with a Liberty of Contract. After FDR Liberty of Contract was
still dead but that did not mean there were not some that wished to see it return, or, at the very
least, less government regulations on businesses. When Liberty of Contract was overturned in
1937, businesses were suddenly subject to regulations (some prohibiting segregation). Without
the death of Liberty of Contract the Supreme Court would not have been able to strike down
laws that discriminated against Americans (via the commerce clause). In fact, the death of
Liberty of Contract allowed for social activism from the Court. By turning back to a pre-Liberty
of Contract era, businesses would not have to follow regulations and the government would not
be able to infringe upon private and state action. Again, looking at the re-alignment literature, by
the 1960s, the parties were still re-aligning, and because of the 1937 constitutional revolution,
there was a rise in social activism from the Court, which caused discomfort to many Americans.
As Bruce K. MacLaury states in the forward to Sundquist’s book:
“In the mid-1960s, the party system entered a period of turmoil that led many
politicians, political observers, and scholars to suggest that another major
realignment might be underway. Democratic and Republican parties that had
taken their modern form in the historic conflict over domestic economic policy
during the Great Depression and New Deal era were confronted in the 1960s and
1970s with a host of new issues that split the electorate on different and
unfamiliar lines -- the Vietnam War, campus uprisings, the civil rights revolution,
rising crime, urban race riots, feminist demands, and changing mores among the
young. Those aroused by the new issues found the existing major parties to be
indecisive and unresponsive on these matters, even to a large extent irrelevant.
Public opinion polls showed that more and more voters were rejecting both parties
calling themselves independents. Split-ticket voting increased, and single-issue
groups rose and flourished as the parties declined.”38
Sundquist, J. (1983). ​Dynamics of the Party System: Alignment and Realignment of Political Parties in the United
States​.
38
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The modern Republican party was born out of opposition to FDR and in the 1960s and 1970s is
when the Republican party started to gain control of the executive branch. Due to conservative
policies and a desire to limit the involvement of government in business regulations, as well as
limit government involvement in most aspects of American society, the norms of the Court and
the desire of the executive were out of step. As a result, the Republican Party grew more
conservative in the later half of the twentieth century and Republican Presidents began
nominating more and more conservative justices to the bench, illustrating the increase in
polarization.
Presidents are the results of their parties so as Democrats become more cohesive and as
Republicans become more cohesive and conservative, there has been an increase in
conservativeness in Republican nominees. As the re-alignment literature argues, the Great
Depression and the New Deal brought about a major party shift that changed voting patterns for
both political parties. Since then, polarization in both Congress and in Supreme Court nominees
has increased. Since Presidents are a result of their parties, the polarization seen in Supreme
Court nominees mirrors the polarization in Congress. Republican Presidents (and the Republican
party, by default) is looking to return to a time where their ideologies were the norm on the
Court, a time before FDR, since his election and Court-packing plan altered the course of the
Court in the subsequent decades. The norms of the Court, in a post FDR world, are liberal, and as
Republicans become more and more conservative (as shown by DW Nominate Scores) they are
naturally nominating justices to the Court that reflect that increase in conservatism, in an attempt
to return to a time when conservative ideologies were dominate in the American political sphere.
Kaufman 26
While several Presidents post-FDR were Republicans, they have failed to completely overhaul
the judicial system to return it to the norms of a pre-FDR world.
As a result of the constitutional revolution, the ideological norms of the Court was (and
still is) liberal; but that does not mean conservative Presidents have not been nominating
conservative justices, they have been (just look at Trump). It is simply because of liberal norms
on the Court and the increase in conservatism from within the Republican party conservative
Presidents are nomination increasingly conservative nominees to the Court in the hopes of
reversing the norms of the Court to a pre-FDR time. If Presidents are nominating justices that
reflect their ideological preferences, and their ideological preferences do not reflect the norms of
the institution (the norms being liberal), there will be perceived polarization. In addition,
Presidents are results of their parties, so if there is an increase in polarization in Congress, that
will be reflected in the actions of Presidents from different parties. What Cameron, Kastellec,
and Park are seeing are Republican Presidents nominating justices onto a Court that carries
FDR’s legacy but justices that do not necessarily prescribe to the ideology of FDR.
METHODS
In case studies that will span all Presidents from FDR to Obama, this project will seek to
prove that the rise in tandem polarization, when dealing with Supreme Court nominees, is due to
the death of Liberty of Contract, and the Republican desire to return to a Liberty of Contract
world, or, at the very least, a world with limited government regulations and infringement into
private and state action. No President beyond FDR will explicitly utter the phrase “Liberty of
Contract,” but that is not an issue. Just because a President does not say the phrase “Liberty of
Contract” does not mean he is not implying a desire to limit government. The death of Liberty of
Kaufman 27
Contract was the spark that changed everything for the Republican party, and there is still a
desire to go back to a time before 1937. Often a Republican President will call for a reduction in
government regulations on businesses, or a call for a return to the idealism of strict
constructionism, or say that the job of the Court is not to make law from the bench, but to simply
state what the constitution says, which is what the Court claimed to be doing pre-1937.
Presidents who are Democrats often state that they see the role of the Court as one that protects
minorities and the rights of American citizens, and that the government reserves the right to
regulate businesses. Presidents are most likely to make these statements during their Presidential
campaigns, when prompted by the press, and when a seat opens on the bench during their time in
office. Presidents do not shy away from sharing their opinion regarding the role of the Court
since it often aligns with the ideology of their political party. The President makes public
statements regarding what type of ideology he would like to have on the Court and his nominees,
for the most part, follow the ideology of what the President says he believes the role of the Court
should be when it comes to regulations. This study will look at every President from FDR to
Trump (except Carter, he never had the opportunity to nominate a justice), their nominees, and
their statements to study how political ideology and preferences have affected polarization
levels.
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Chapter Three: Case Studies
Franklin Delano Roosevelt
There is a clear reason why President Roosevelt chose the Supreme Court nominees that
he did: he wanted his New Deal legislation upheld. When FDR took the oath of office, the
country was in economic despair. American citizens lacked housing, food, and employment. The
idea with the New Deal was that the government would employ Americans for public works
projects, while simultaneously giving private industry time to recover from the 1929 economic
crisis.39 While FDR had a willing Congress, but the Court, still stuck in a Liberty of Contract era,
was not willing to uphold FDR’s New Deal programs, since a Liberty of Contract would not
allow for governmental regulations on businesses.
In FDR’s first fireside chat of his second term in office, President Roosevelt challenged
the Court and their interpretation of his New Deal plans. While arguing that the New Deal
legislation worked for the American people, he simultaneously argued that the Court was out of
touch with the nation, pulling the nation in the wrong direction, and ignoring the will of
Congress.
Last Thursday I described the American form of Government as a three
horse team provided by the Constitution to the American people so that their
field might be plowed. The three horses are, of course, the three branches of
government—the Congress, the Executive and the Courts. Two of the horses
are pulling in unison today; the third is not….It is the American people
themselves who are in the driver’s seat. It is the American people
themselves who want the furrow plowed. It is the American people
themselves who expect the third horse to pull in unison with the other two.40
Rosen, E. A. (2012). ​Roosevelt, the Great Depression, and the Economics of Recovery​. Charlottesville, US:
University of Virginia Press. 163
40
Roosevelt, F. (1937, March 9). The American Presidency Project.
39
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Congress, he argued, knew what was best for the welfare of the nation, and the Court was not
acting “as a judicial body, but as a policy-making body.” The Court, for FDR, was imposing
their Liberty of Contract ideals on the nation, ideals that would not uphold his New Deal, and
ideals that, in his opinion, were harming the nation. Since the constitution never states how many
justices should sit on the Court, FDR proposed to put more justices on the Court that would
uphold his New Deal, and those new justices would outnumber the justices who would not
uphold the New Deal.
What became known as FDR’s Court packing plan was “simply this: whenever a Judge
or Justice of any Federal Court has reached the age of seventy and does not avail himself of the
opportunity to retire on a pension, a new member shall be appointed by the President then in
office, with the approval, as required by the Constitution, of the Senate of the United
States….This plan of mine is no attack on the Court; it seeks to restore the Court to its rightful
and historic place in our system of Constitutional Government and to have it resume its high task
of building anew on the Constitution ‘a system of living law.’ The Court itself can best undo
what the Court has done.”41
FDR’s proposed Court packing plan had a profound effect on the Court. ​West Coast
Hotel Co. v. Parrish​ (1937) was the state version of ​Adkins v. Children’s Hospital of D.C​ (1923).
One would assume that the Court would have rule the same in ​West Coast Hotel​ as they had in
Adkins​, since they both dealt with minimum wage laws. In ​Adkins​, the Court ruled that minimum
wage laws placed an undue burden on businesses, since workers may have been willing to work
for a lower wage, and thus, a minimum wage was a forced extraction from businesses. However,
41
Roosevelt, F. (1937, March 9). The American Presidency Project.
Kaufman 30
Justice Owen Roberts switched his vote, which became known as the switch in time that saved
nine (and killed Liberty of Contract). In ​West Coast​, the Court ruled that there was no such thing
as Liberty of Contract. Nothing in the fourteenth allows for Liberty of Contract. If the regulation
was to be considered reasonable, the Court would allow it. There was to be a deference to
legislative action. This decision is the demise of dual federalism and Liberty of Contract and rise
of preferred freedoms (Speech, Press, Assembly, Privacy). ​City of New Orleans v. Duke​ was the
final nail in the coffin for Liberty of Contract where the Court decided that if the law is
discriminatory in nature, it triggers strict scrutiny. The Court used strict scrutiny for Liberty of
Contract, but speech (and others) were rational basis. ​City of New Orleans​ switches the tests.
Economic statue is now ruled under rational basis, and everything else triggers strict scrutiny.
Because of the death of Liberty of Contract, the President was able to pass the Fair Labor
Standards Act in 1938, establishing a minimum wage, a forty-four hour work week, and
abolished child labor,42 an act that would not have been possible during an era dominated by
Liberty of Contract.
While Liberty of Contract died in ​West Coast ​and ​City of New Orleans​, the end of dual
federalism came in ​NLRB v. Jones & Laughlin​ (1937). The Court highlighted other places to
show that any kind of labor that happens in Pennsylvania has an interstate effect. If one can show
there is an effect on interstate commerce, Congress can regulate (which later leads to the cases
that ended private discrimination under the commerce clause). Because of this ruling, ​Shreveport
Rate​ was re-confirmed after ​EC Knight​ and ​Schnecter​ had ruled. The close and substantial
effects test was now back in action, and the indirect/direct test was no longer used.
Grossman, J. (1978). “Fair Labor Standards Act of 1938: maximum struggle for a minimum wage.” ​Monthly
Labor Review​. Vol. 101 (6), pp. 22-30.
42
Kaufman 31
The death of Liberty of Contract gave rise to prefered freedoms (speech, etc.), freedoms
that could not have existed under a Liberty of Contract era. Because of the death of Liberty of
Contract, future Presidents nominated justices that reflected their Presidential preferences for
these prefered freedoms. Without the death of Liberty of Contract, no social justice issue case of
the late twentieth century could have existed, since the civil rights cases had to do with
Congressional interference with discrimination and other issues that triggered strict scrutiny.
FDR’s effect on the Court is not to be underestimated. As some historians argue, “in the
long history of the American presidency and the high Court, few events, if any, have been of
more lasting consequence that the Court battle of the mid-1930s.”43 FDR “‘turned a conservative
Court into a liberal one and changed the direction of the Court’s policy-making.’ In doing so,
FDR changed the direction of the country itself”44
When FDR appointed Black, Reed, Frankfurter, Douglas, Murphy, Byrnes, Stone,
Jackson, and Rutledge to the Court, he had one objective in mind: to allow the New Deal to
survive. In order for the New Deal to survive, he needed justices that would not allow a rebirth of
Liberty of Contract. Since Liberty of Contract was based on the desire of keeping the federal
government out of the private sector, and the Liberty of Contract era was the one-two punch to
any and all social legislation,45 FDR’s nominees, in their belief that the federal government
should be able to regulate the private sector, when necessary, ruled similarly in cases such as
Brown​, ​Heart of Atlanta Motel​, ​Katzenbach​, ​Daniel v. Paul​, and ​Roe v. Wade​.
Aberbach, J., & Peterson, M. (2005). ​The Executive Branch​.
Shaw, S.; Pederson, W.; Williams, F. (2004). ​Franklin D. Roosevelt and the Transformation of the Supreme
Court​. New York: Routledge.
45
Ducat, C. (2013). ​Constitutional Interpretation
43
44
Kaufman 32
FDR and the death of Liberty of Contract allowed for the Court to rule on social issues,
issues that could not have been voted on under a Court prescribing to the doctrine of Liberty of
Contract. Presidents that followed FDR either agreed or disagreed with the belief that
government should be able to hold regulatory powers over industry. FDR and his nominees are
the reason that Liberty of Contract did not live beyond 1937, and his preferences are reflected in
his Supreme Court nominees.
Truman
Three months into his fourth term, Roosevelt died, leaving his third Vice President, Harry
Truman to be President. The popular Senator from Missouri was left with the task of ending the
war and overseeing the transition of the economy from a wartime economy to a peacetime
economy. The nation had not seen a robust peacetime economy since 1929 and the year was now
1945.
Truman’s popularity and longevity in the Senate may have been one of the reasons he
was chosen to be Vice President. But nevertheless, the friendships he formed as a Senator
resulted in political appointments he made as President, including appointments he made to the
Supreme Court. While Truman is remembered for appointing friends to the bench, including
Vinson, Burton, and Clark, that is not to say that he was not appointing friends without certain
beliefs.
As the war was ending, the fear of returning to an economic depression was strong.
While the need for soldiers and factory labor during the Second World War had catapulted the
United States out of the Great Depression, there was a fear there would be a labor surplus, with
Kaufman 33
women working in factories and men returning from the front. Not long into his presidency
Truman signed the Employment Act of 1946 into law. The objective of the law was simple:
The Congress hereby declares that it is the continuing policy and responsibility of
the Federal Government to use all practicable means consistent with its needs and
obligations and other essential considerations of national policy, with the
assistance and cooperation of industry, agriculture, labor, and State and local
governments, to coordinate and utilize all its plans, functions, and resources for
the purpose of creating and maintaining, in a manner calculated to foster and
promote free competitive enterprise and the general welfare, conditions under
which there will be afforded useful employment opportunities, including
self-employment, for those able, willing, and seeking to work, and to promote
maximum—employment, production, and purchasing power.46
The bill was first introduced as the Full Employment Bill of 1945 by House Democrats.
The goal of the FDR and Truman administrations was to ensure that every person seeking
employment after the war would receive work, preventing the country from sliding back into an
economic depression. It mandated the federal government do everything in its power to reach
full employment, claiming that employment was a right guaranteed to the American people. It
also established the Economic Report of the President, a report that the President must submit
every year, alongside his federal budget proposal, projecting employment rates for the following
year, and if the country has not reached full employment, his plans for the nation to reach full
employment. To this day, the President still submits an Economic Report of the President
alongside his federal budget proposal. The bill also created the Council of Economic Advisers (a
board that aids the President in developing economic policy) and the Joint Economic Committee
(a committee of Congressmen to review the government’s economic policies). Echoing the New
Deal, this bill was almost an extension of the New Deal after the war.
46
Employment Act of 1946
Kaufman 34
Naturally, there was opposition to the Full Employment Bill from conservatives who
feared federal regulations on businesses, conservatives who had opposed the New Deal and the
subsequent death of Liberty of Contract. As historian Margaret Weir argues, “Reflecting the
influence of the stagnationist Keynesian analysis, the bill envisioned a permanent federal role in
regulating the economy….The core of the opposition was composed of business interests and the
large-scale agricultural concerns….Their congressional allies were disproportionately drawn
from the ranks of midwestern Republicans and southern Democrats.”47 The opposition to the bill
came from the same people who opposed the New Deal legislation. Those opposing the Full
Employment Bill also wished to “contain the spread of unionism and curb the political power of
organized labor after the war.”48 The Full Employment Bill of 1945 would only be possible
without a Liberty of Contract doctrine, and a Court willing to strike down a Liberty of Contract
since the bill sought to situate the federal government permanently in regulating the economy,
and the Liberty of Contract doctrine seeks to keep the federal government out of the economic
sphere. While the final Employment Act of 1946 did not issue a mandate as much as a list of
suggestions, the revised bill stated that the federal government will work towards full
employment, full production, and stable prices.49
Truman signed the bill into law on February 20, 1946. Truman opposed the changes
made by the House to the final bill, stating; “In my opinion no bill which provides substantially
less than the Senate version can efficiently accomplish the purposes intended.”50 After signing
the bill into law, Truman stated that the legislation “gives expression to a deep-seated desire for a
Weir, M. (1992). ​Politics and Jobs: The Boundaries of Employment Policy in the United States​. Princeton, N.J.:
Princeton University Press
48
Weir, M. (1992). ​Politics and Jobs: The Boundaries of Employment Policy in the United States​.
49
Employment Act of 1946
50
Truman, H. (1945, December 20). The American Presidency Project.
47
Kaufman 35
conscious and positive attack upon the ever-recurring problems of mass unemployment and
ruinous depression.”51 Invoking the tremendous economic downturn that occurred after the end
of the first world war, Truman went on to state “Democratic government has the responsibility to
use all its resources to create and maintain conditions under which free competitive enterprise
can operate effectively-conditions under which there is an abundance of employment opportunity
for those who are able, willing, and seeking to work.”52 Truman outlines the Act like so: “It is
not the Government’s duty to supplant the efforts of private enterprise to find markets, or of
individuals to find jobs. The people do expect the Government, however, to create and maintain
conditions in which the individual businessman and the individual job seeker have a chance to
succeed by their own efforts. That is the objective of the Employment Act of 1946.”53 For
Truman, while the role of the federal government is not to find jobs for American citizens, it is
the responsibility of the federal government to encourage conditions that promote employment
opportunities.
At the same time, Truman was faced with bridging the divide between Democrats in the
North and South. As Sundquist writes,
“The liberalism of the new Democratic party, if less yeasty than in the prewar
years, was being defined and institutionalized within the party by the new
generation of programmatic politicans. President Truman had to chose between
his party’s wings, as did his predecessor, and he made the same choice, for the
same reasons….Truman decided to ignore the South...After a meeting with the
Democratic national chairman, a committee of southern governors issued a
statement warning that the southern vote was not ‘in the bag’ for the Democratic
party….The inter-party struggles between Dixiecrats and loyalists for the
conservative factional lines that had developed over economic issues in state
politics through the years and in national policies in the 1930s. …. ‘It is no
accident,’ wrote the ​Arkansas Gazette​, ‘that those who are the loudest now in
denouncing Mr. Truman [on civil rights] are the same Southern Democrats who
51
Truman, H. (1946, February 20). The American Presidency Project.
Truman, H. (1946, February 20). The American Presidency Project.
53
Truman, H. (1946, February 20). The American Presidency Project.
52
Kaufman 36
have also taken issues with him and with his predecessor on many other matters -labor legislation, price controls, public power, federal spending, etc.’....In their
campaign, the Dixiecrats crusaded for states’ rights not only on the civil rights
issue but also, as Thurmond put it, on ‘many other like questions.’”54
Still not swayed by the defeat in the Full Employment Act and the subsequent passing of
a compromise bill, in his second State of the Union (1948) Truman stated “Permanent farm
prosperity and agricultural abundance will be achieved only as our whole economy grows and
prospers. The farmer can sell more food at good prices when the incomes of wage earners are
high and when there is full employment….We are today far short of the industrial capacity we
need for a growing future. At least $50 billion should be invested by industry to improve and
expand our productive facilities over the next few years....Farm prosperity and high employment
will call for an immensely increased output of goods and services.”55 In addition, Truman called
for a raise in the minimum wage,56 and echoing the New Deal, Truman argued that by having
business and the government working together to create policies and regulations, the economy
will reach full potential.57 Truman was announcing all of these policy initiatives in the face of the
Democratic party splitting.
While the final Act that was signed by Truman on February 20, 1946 may have not been
what he originally envisioned, Truman would have his opportunity to appoint a Chief Justice to
the Court that shared similar economic beliefs. Fred Vinson was a FDR appointment to the DC
Circuit Court of Appeals in 1937. In 1943 he resigned from the Appeals Court to serve as
Director of the Office of War Mobilization and Reconversion,58 an executive agency charged
Sundquist, J. (1983). ​Dynamics of the Party System: Alignment and Realignment of Political Parties in the United
States​. 272-276.
55
Truman, H. (1948, January 7). The American Presidency Project.
56
Truman, H. (1948, January 7). The American Presidency Project.
57
Truman, H. (1948, January 7). The American Presidency Project.
58
Truman, H. (1945, May 1). The American Presidency Project.
54
Kaufman 37
with fighting inflation and re-shaping the economy after the war. In a letter to Vinson, Truman
said “As V-E Day approaches….we must reconvert our domestic economy to the production of
peacetime goods and services.”59 Vinson worked with Truman on several economic initiatives
and was his go to advisor on most economic matters.60 On July 23 1945, Truman appointed
Vinson as the Secretary of the Treasury, tasking him with stabilizing the American economy at
the end of the second world war.
Serving less than a year as the Secretary of Treasury, on June 24, 1946 Vinson was sworn
in as Chief Justice of the United States following the death of Chief Justice Stone, almost four
months to the day after Truman signed the Employment Act of 1946. Vinson, as the Secretary of
the Treasury, wrote a letter to the House trying to persuade representatives to pass the Senate
version of the Bill.61 While the final version was not the bill Truman nor Vinson wanted, Truman
would have the opportunity to guarantee the Supreme Court ruling in favor of preferable working
conditions for employees (regulations) by placing Vinson on the bench as Chief Justice.
After the retirement of Owen Roberts on July 31, 1945,62 Truman nominated Harold
Burton, a Senate Republican and old friend, to the Court. The choice was considered to be odd
by many, it was boiled down to a bipartisan gesture. However, as a Senator, “Burton voted many
times for the social and economic policies of the New Deal.”63 Truman thought it was important
to nominate a Republican to the Court, perhaps in light of the Southern and Northern split in the
59
Truman, H. (1945, May 1). The American Presidency Project.
​Truman, H. (1945, May 1). The American Presidency Project.
61
Campbell, T. (1998). ​Short of the Glory​. Lexington, KY.: University of Kentucky Publishing, 109
62
Justice Owen Roberts was the judge who switched his vote in ​West Coast Hotel​, the justice who became known
for “the switch in time that saved nine,” the reason why Liberty of Contract was discarded.
63
Marcus, M. (1994). ​Truman and the Steel Seizure Case: The Limits of Presidential Power​. Durham, NC.: Duke
University Press. 189
60
Kaufman 38
Democratic party, but Burton was a Republican who was “flexible” when it came to “important
issues.”64
Harold Clark, the Attorney General known for administrative loyalty, would be the third
man nominated to the Court by Truman. Because of Clark’s loyalty to the Roosevelt
administration, “and his successful investigation and prosecution of fraud in connection with the
war effort….Clark was eventually promoted to Assistant Attorney General where he was head of
the Antitrust Division and later the Criminal Division.”65 Clark was one of Truman’s first cabinet
appointments, appointed as Attorney General on May 23, 1945.66 As Attorney General, he
followed in the same vein of administrative loyalty and “it was not until Tom Clark was a sitting
US Supreme Court Justice that he began challenging executive power;”67 having been nominated
to the bench on July 28, 1949.68 However, once on the Court, “Justice Clark tended to side with
the government over individual rights.”69 One can derive from this case study that Truman must
have appointed Clark to the bench thinking that Clark would side with any cases brought forth to
the Court regarding the Truman administration.
What is interesting about Truman’s Supreme Court nominees were the friendships
Truman held with all the men he nominated. As Harold Clark pointed out, in a later interview,
Vinson and Truman were on Ways and Means together, Minton and Truman were in the same
Congressional class (Minton also served on a national defense senate committee with Truman
Marcus, M. (1994). ​Truman and the Steel Seizure Case: The Limits of Presidential Power​. 189
Wohl, A. (2013). ​Father, Son, and Constitution: How Justice Tom Clark and Attorney General Ramsey Clark
Shaped American Democracy​. Lawrence, KS.: University Press of Kansas. 58-62.
66
Truman, H. (1945, May 23). The American Presidency Project.
67
Wohl, A. (2013). ​Father, Son, and Constitution: How Justice Tom Clark and Attorney General Ramsey Clark
Shaped American Democracy​. 58-62.
68
Truman, H. (1949, July 28). The American Presidency Project.
69
Wohl, A. (2013). ​Father, Son, and Constitution: How Justice Tom Clark and Attorney General Ramsey Clark
Shaped American Democracy​. 58-62.
64
65
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and was a close friend), Burton and Truman were old friends, and Clark was Truman’s Attorney
General.70 However, all of the men nominated shared similar economic beliefs with both FDR
and Truman, regardless of political party. It must have been comforting for Truman to know he
had allies on the bench in light of his party falling apart at the seams.
Eisenhower
In typical military general behavior, Eisenhower only wanted justices that were qualified
to sit on the bench, not to make appointments based on political favors. His belief that the Court
should be a non-partisan institution led Eisenhower to nominate both conservative and liberal
justices. While Eisenhower’s gestures towards bipartisanship were certainly noble, the regret he
felt regarding his appointees later in life perhaps served as a warning to future Presidents to
nominate justices who share ideological beliefs. At the same time, Eisenhower feared he was
going to “be succeeded in 1956 or 1960 by a ‘New Deal President,’”71 which compelled him to
appoint justices under the age of sixty, justices who would fight a New Deal President. In
addition, it is reported by almost all accounts that Eisenhower leaned heavily on his Attorney
General, Herbert Brownell, for Supreme Court nominees. What is important to note, and
interesting, is that none of the justices nominated by Eisenhower were more conservative than
the justices they replaced,72 marking the last time this act of bipartisanship would ever occur in
Supreme Court nominees. After Eisenhower, Republican Presidents began replacing Supreme
70
Hess, J. (Interviewer), & Clark, T. (Interviewee). (1972, October 17 & 1973, February 8). “Oral History with
Tom. C. Clark. ​The Truman Library​. Washington D.C.
71
Yalof, D.A. (1999). ​Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees​.
Chicago: I.L.: The University of Chicago Press. 43.
72
Whittington, K. (2007). ​Political Foundations of Judicial Supremacy: The Presidency, The Supreme Court, and
Constitutional Leadership in U.S. History​. Princeton, N.J.: Princeton University Press. 220.
Kaufman 40
Court justices with increasingly more conservative nominees, which accounts for the rise in
polarization. Eisenhower’s nominations were clearly either political decisions or decisions
reflecting his will to nominate those best qualified, but they were decisions he would later live to
regret. Eisenhower is the last President who nominated justices that did not reflect his
preferences, and perhaps his admittance in regretting his nominees has encouraged future
Presidents to nominate justices who actually reflect their preferences.
When it came to New Deal politics in the 1950s, Republicans at the time of Eisenhower
wished to roll back FDR’s policies. The war and depression were over, and the economy should
go back to how it was before Roosevelt. While Eisenhower was a critic of New Deal policies,
“he did not share the extreme views of some Republican conservatives.”73 While some
Republican conservatives desired to eliminate the New Deal policies, Eisenhower prefered a
more moderate path, one which aided those who were unemployed but preserved the market
economy and individual freedoms. As the Miller Center argues, “He intended to lead the country
down the middle of the road between the unfettered power of concentrated wealth….and the
unbridled power of statism or partisan interests.”74
Eisenhower had the opportunity to appoint five justices to the bench, one of whom being
a chief justice. Ironically enough, when Eisenhower was asked if he made any mistakes as
President, he responded, “‘Yes, and they are both sitting on the Supreme Court,’” referring to
Chief Justice Earl Warren and Associate Justice William Brennan,75 both of whom turned out to
73
Miller Center. (N/A). “Dwight D. Eisenhower: Domestic Affairs.”
Miller Center. (N/A). “Dwight D. Eisenhower: Domestic Affairs.”
75
Aberbach, J., & Peterson, M. (2005). ​The Executive Branch​.
74
Kaufman 41
be much more liberal than he wished them to be, stating that he had appointed them for political
reasons, not because he agreed with their judicial ideology.76
History remembers the appointment of Earl Warren as one of a political favor, which is
ironic since Eisenhower made it so clear he wished to make appointments based on merit. The
California governor had shifted his support to Eisenhower in the the 1952 election, guaranteeing
him the Republican nomination. According to historians, Eisenhower was impressed with
Warren’s statesmanship, character, and stature, and as a result, “Eisenhower phoned from his
transition headquarters in New York and extended him his ‘personal promise’ that he would
appoint him to the ‘first vacancy on the Supreme Court.’”77
While Warren was instrumental to Eisenhower winning the presidency, they shared
economic policy beliefs when it came to New Deal policies. Eisenhower believed in providing
benefits to Americans, he created the Department of Health, Education and Welfare, he
expanded Social Security, and raised the minimum wage.78 As Governor of California in the post
war years, Warren realized the very real possibility of returning to the Depression after the war.
California’s economy had boomed because of the war, and as political scientist John Aubrey
Douglass states, “While total civilian employment in the nation was up 14 percent since 1941,
California’s was up 40 percent; manufacturing employment rose 51 percent in the nation, while
California’s was up a spectacular 201 percent; total civilian population had dropped 3 percent
throughout the country, but in California it had risen 15 percent.”79 After the war, Warren argued
that federal intervention in the economy and life of Californians could soon be over; “But this
Eisler, K. (1997, July 28). “Eisenhower’s ‘Mistakes.’” ​The New York Times​.
Yalof, D.A. (1999). ​Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees​.
78
Miller Center. (N/A). “Dwight D. Eisenhower: Domestic Affairs.”
79
Douglass, J.A. (2000). “Earl Warren’s New Deal: Economic Transition, Postwar Planning, and Higher Education
in California.” ​The Journal of Policy History​. Vol. 12 (4). pp. 473-512
76
77
Kaufman 42
was not a call for unfettered capitalism and bare-bones government. It was now the burden of
state government, he argued, to help California through the anticipated economic downturn and
to help create, in cooperation with local government and the private sector, the conditions for
future prosperity.”80 For Warren, there was still a responsibility of the government to provide for
its citizen by imposing governmental regulations on businesses, and if not the federal
government, it would be the role of the state government. Like himself, Eisenhower saw Warren
as a man who shared the same “middle-of-the-road philosophy,”81 a philosophy that allowed for
New Deal policies, but also allowed for economic freedoms for businesses.
John Marshall Harlan II’s conservative beliefs earned him the title of “The Great
Dissenter” on the activist Warren Court. The Segal-Cover gave Harlan a score of 38 when it
came to his economic decisions on the Court (0 being most conservative, 100 being most
liberal).82 Regardless of his decisions made on the bench, Harlan II’s reputation as a lawyer
“rested primarily on his skillful representation of substantial financial interests. It was not
surprising, therefore, that he frequently voted to limit the reach of antitrust laws and other federal
regulatory legislation.”83 Harlan II was a vocal opponent of regulations on businesses, making
him an ideal justice for the Republican party of 1950.
The nomination of Brennan was a direct result of Eisenhower’s desire for the Court to be
a nonpartisan institution. While Eisenhower would later refer to William Brennan as one of his
two mistakes as President he nevertheless nominated Brennan to the bench in October of 1956 as
80
Douglass, J.A. (2000). “Earl Warren’s New Deal: Economic Transition, Postwar Planning, and Higher Education
in California.”
81
Eisenhower, D. (1953, September 30). The American Presidency Project.
82
Segal, J.; Cover, A. (1989). “Ideological Values and the Votes of Supreme Court Justices.” ​American Political
Science Review​.
83
Yarbrough, T. (1992). ​John Marshall Harlan: Great Dissenter of the Warren Court​. New York, N.Y.: Oxford
University Press. ix
Kaufman 43
a recess appointment, his hearings not occurring until February of 1957, after he had already
begun serving on the bench.84 The notes from the conversation between Eisenhower and his
Attorney General Brownell recount that the President asked the Attorney General to “start
thinking again about a very good Catholic, even a conservative Democrat -- [he] thinks we really
would be better off to appoint a Democrat to show that we mean our declaration that the Court
should be nonpartisan (in spite of the fact that the ratio now is Democratic 6, Republican
3)....But the President asked the Attorney General to canvas the field, to try to find [an]
outstanding man, with Court experience, regardless of his political affiliation.”85 Regardless of
the amount of liberals and conservatives on the bench, Eisenhower clearly desired to nominate
men to the bench of both ideologies.
Justice Whittaker famously became the justice without an ideology and had to resign
from the bench after suffering a nervous breakdown due to his lack of ideology.86 Perhaps it was
his lack of ideology that drew Eisenhower to Whittaker because Eisenhower could not be
accused of being partisan. Supposedly Eisenhower’s administration had to contact Whittaker’s
law firm to confirm that he was, in fact, a Republican.87 The same could be said of Potter
Stewart, a moderate who was the final Supreme Court Justice nominated by Eisenhower. Stewart
shrugged off ideological labels and “established early the practice of deciding most cases on the
narrowest grounds with a minimum of judicial philosophizing. He spoke of labels like liberal and
conservative as ‘fatuous,’ and when asked to describe himself, he said he thought of himself
84
Wermiel, S.J. (1995). “The Nomination of Justice Brennan: Eisenhower’s Mistake? A Look at the Historical
Record.” ​Constitutional Commentary​. Vol. 11 (3). pp. 515-537.
85
Wermiel, S.J. (1995). “The Nomination of Justice Brennan: Eisenhower’s Mistake? A Look at the Historical
Record.”
86
Smith, C. (Speaker). (2016, June 10). ​The Political Thicket​ [More Perfect Podcast].
87
Smith, C. (2005). ​Failing Justice: Charles Evans Whittacker on the Supreme Court​.
Kaufman 44
primarily as ‘a lawyer.’”88 The narrative of both the Whittaker and Stewart nominations reflect
Eisenhower’s desire to not choose a justice for his ideology, but for their qualifications.
Eisenhower’s appointments to the Supreme Court are remembered as nonpartisan and
non-polarizing. Unlike FDR or Truman, Eisenhower cared little about ideology and mostly
wanted justices who were qualified to sit on the bench. Eisenhower gave very few statements
regarding the Court, or any of his nominees. Eisenhower, while not falling into the Liberty of
Contract thesis of this paper, cannot be placed in any category regarding his nominees since they
came from both sides of the aisle and held differing ideologies. He was the last President who
did not nominate justices based off any of his own preferences, perhaps serving as a lesson for
future Presidents.
John F. Kennedy
The three years that JFK served as President were during the height of the Warren Court.
Kennedy’s Supreme Court nominees reflect a Democratic President going back to the ideology
of FDR. Kennedy’s nominees were liberal, but they were liberal justices being added to an
already-liberal Court with liberal precedent.89 Even though JFK was only President for three
years, his domestic policy is remembered as one that focused on Civil Rights, an early version of
Johnson’s war on poverty, and expanding social security benefits.90 Because of the shift in
substantive due process and death of Liberty of Contract, JFK was able to focus on this
legislation without the fear of the Court striking it down. At least one of JFK’s nominees, Arthur
Goldberg, undoubtedly shared Kennedy’s beliefs on substantive due process, Byron White did
MacKenzie, J.P. (1985, December 8). “Potter Stewart is Dead at 70; Was on High Court 23 Years.” ​The New York
Times​.
89
The Court being able to rule liberally due to the death of Liberty of Contract, the rise in substantive due process,
and the sheer amount of liberal appointees to the Court.
90
John F. Kennedy Presidential Library and Museum. “Selected Milestones of the Kennedy Presidency.”
88
Kaufman 45
not. Kennedy’s nominees reflect the party shift in the south. While northern democrats like
Kennedy shared the same party, in name, as southern democrats, Truman’s election, the rise of
Dixiecrats, and the Civil Rights movement moved southern democrats to the right.
On March 30, 1962, a day after announcing Justice Whittaker’s retirement from the
Court, JFK nominated Byron White to the Supreme Court. What is interesting about the White
nomination is that White ended up not being as liberal as JFK may have anticipated (dissenting
in both ​Roe​ and ​Miranda​). As constitutional scholars point out about White, “‘Substantive due
process’ was the source of many modern civil rights rulings by the Court, over White’s relentless
objections–beginning with his very first dissent as a Justice, in ​Robinson v. California​ [a case
dealing with cruel and unusual punishment91] in 1962. He complained bitterly of ‘judge-made
constitutional law.’”92 Goldberg’s nomination could also have to do with the fact that he and JFK
were at Oxford at the same time and served together in the Navy during WWII.93 White was also
the Colorado party chair for Kennedy’s 1960 campaign.94 In addition, the White nomination
could have been a nod to Southern Democrats, acknowledging their existence and putting a man
on the Court who shared their beliefs.
Five months after White’s appointment to the bench Kennedy would have the opportunity
to fill Justice Frankfurter’s seat. Immediately after announcing Frankfurter’s retirement,
Kennedy nominated Secretary of Labor Goldberg to the Court. Kennedy said in a letter to
Goldberg:
“Your effectiveness in championing the rights of working men and women and
their families is demonstrated by the enactment in this Congress of new
​Robinson v. California.​ (1962).
Denniston, L. (2012, May 3). “The Mystery of Justice Byron White.” ​Constitution Daily​.
93
Greenhouse, L. (2002, April 16). “Bryon R. White, Longtime Justice and a Football Legend, Dies at 84.” ​The New
York Times​.
94
Kennedy, J. (1960, August 2). The American Presidency Project.
91
92
Kaufman 46
legislation increasing minimum wages, supplementing unemployment
compensation, tightening the safeguards on welfare and pension funds, providing
for the retraining and placement of our unemployed manpower, aiding areas of
chronic distress, improving the lot of migrant workers and modernizing our
eight-hour laws. You have, in addition, played a major role in the passage of the
Trade Expansion Act, new programs for juvenile delinquents and unemployed
youth and executive efforts to improve the employment opportunities of minority
groups.”95
The ideals that Kennedy felt Goldberg would uphold reflected the norms of the Court at the time.
Kennedy’s nomination of Goldberg aligns with the growing liberal norms of the Court. From
1948 to 1961 Goldberg had served as counsel for the United Steelworkers in Washington D.C.,
famous for merging the American Federation of Labor and the Congress of Industrial
Organizations. As Labor Secretary, he was credited with preventing the steel strikes of 1962.96
Given his lifetime work with unions and his service in Kennedy’s cabinet, he was an obvious
choice for the ultra-activist Warren Court and for a Democratic President in the 1960s from the
North.
While the Democratic party was losing support, this fracture could be seen in Kennedy’s
Supreme Court nominations. White was a democrat under the old party structure, but his
ideologies reflected the ideologies of the emerging Republican party and the start of the surge in
polarization in Supreme Court nominees we see starting in the 1960s. Goldberg’s nomination
reflect the ideologies of the new Democratic party, the party that emerged after FDR. The
polarization even within parties can be clearly seen contrasting Kennedy’s nominees.
95
96
Kennedy, J. (1962, September 20). The American Presidency Project.
Pace, E. (1990, January 20). “Arthur J. Goldberg Dies at 81; Ex-Justice and Envoy to U.N.” ​The New York Times​.
Kaufman 47
Lyndon B. Johnson
Lyndon B. Johnson, the southern Democrat, was the architect of the Great Society
Program, a program that greatly resembled the New Deal. This legislation would not have been
able to be upheld by the Court if not for the death of Liberty of Contract and the rise of
substantive due process, and LBJ was aware of this fact; which is why LBJ nominated men to the
bench that would ensure Liberty of Contract would not rise again and would uphold his Great
Society Legislation; by upholding the death of Liberty of Contract, the Court could not strike
down Johnson’s Great Society.
Johnson’s Great Society Programs echoed Roosevelt’s New Deal in that both legislation
embodied social reforms and desired the ability to further the economic status of all American
citizens. Both FDR and LBJ saw the government as responsible for aiding individuals in
overcoming disadvantages.97 As historians Larry Berman and Stephen R. Routh argue, Johnson
“considered the Great Society an extension of the Bill of Rights. Broadening the concept of
freedom as framed by the founding fathers, he reasoned that in modern America every citizen
has the right to adequate health care, a full education, decent housing, and the opportunity to
develop his or her own talents. Freedom for Johnson did not merely constitute liberty from
government intrusion; it involved an activist state working to ensure that all Americans,
regardless of race or class, received basic necessities and equal opportunities.”98 The Great
Society included the Equal Opportunity Act, Medicare, Medicaid, and the Civil Rights Act.99
97
Soderstrum, T. J. (2011). Great Society. In C. L. Clark (Ed.), The American Economy: A Historical Encyclopedia
(2nd ed.). Santa Barbara, CA: ABC-CLIO.
98
Berman, L., & Routh, S. R. (2016). Great Society. In S. Bronner (Ed.), Encyclopedia of American Studies. MD:
Johns Hopkins University Press.
99
Berman, L., & Routh, S. R. (2016). Great Society. In S. Bronner (Ed.), Encyclopedia of American Studies.
Kaufman 48
The Civil Rights Act of 1964, more or less, was a re-affirmation of the rights granted to
citizens in the thirteenth, fourteenth, and fifteenth amendments. The Civil Rights Act was the
way that the federal government felt that they were going to solve the problems of Black
Americans. The commerce clause states that the federal government has the ability to “to
regulate commerce with foreign nations, and among the several states, and with the Indian
tribes.”100 What the commerce clause means is that if there is a burden placed on economic
growth by a state or a business, the federal government has the right to step in since economic
growth is a federal issue, not just a local issue. The full potential of the economy is in the best
interest of the federal government, and as a result, the federal government can step in and fix
business practices if they feel something is taking place that hinders economic growth. Because
of the death of Liberty of Contract and the rise of substantive due process clause, the commerce
clause became an available avenue to permit Congress to end discrimination in businesses by
regulating businesses.
If the Johnson administration could prove that racial discrimination placed a burden on
interstate commerce, then they would be able to prevent businesses from discriminating. By
proving that private discrimination affected the entire economy, the federal government would
be able to force businesses to serve everyone, regardless of race, thus ending segregation. In a
series of cases (​Heart of Atlanta Motel v. United States​, ​Katzenbach v. McClung​, ​Daniel v Paul​)
the Civil Rights Act stood, and subsequent Presidents were able to use similar arguments to pass
other social legislation.
100
​U.S. Const., art. I, § 8, cl. 3
Kaufman 49
By housing Civil Rights Legislation in the Commerce Clause, there are inherent federal
regulations of the economy. Businesses were not free to practice discrimination without running
afoul of the constitution. It is hard to imagine a Civil Rights Legislation being upheld before
1937 when the Court struck down any and all legislation that infringed on the practices of private
businesses. This is where the shift really occurs. Recalling this graph:
One sees that from the mid-1960s until 2010 Supreme Court nominees for Democratic Presidents
stayed consistent (2010 being when the data set ends). Looking at Supreme Court nominees of
Republican Presidents one sees the sharp increase in the 1960s. Democratic Presidents had social
legislation (that was only possible due to constitutional revolution) that they wanted upheld.
Republican Presidents saw this legislation as an attack on private businesses, and thus, looked for
justices who would not allow the government to interfere into the actions of private businesses,
justices who would state that if it is not an enumerated power, it cannot stand; which accounts for
the rise in what appears to be extremely radical conservative nominees. In reality, conservative
Presidents want to go back to a time where liberal ideologies were not the norm of the Court,
which would only be possible through a return to the Liberty of Contract era. For Johnson, the
Civil Rights Act (and the Court’s upholding of it) was only possible due to the constitutional
revolution, which is why he nominated justices who would uphold it.
Kaufman 50
Johnson’s first Supreme Court nominee would be Abe Fortas in July of 1965. The story
of Fortas’s appointment is well known. Johnson persuaded Goldberg to resign, by offering him
the position of ambassador to the U.N., because he feared that the Court would overturn his
Great Society legislation, like the Court had done with FDR’s New Deal.101 Johnson believed
that Fortas, a friend, would make him aware if the Court were to overturn Johnson’s Great
Society and would be a justice he could count on in upholding the Great Society legislation.102
Johnson nominated his friend to the Court, calling him a “champion of our liberties.”103 A
champion of liberties, sure, but more importantly, a champion of Johnson’s liberties.
The second justice Johnson nominated to the Court was Solicitor General Thurgood
Marshall, a historic nomination by all accounts. When asked his judicial philosophy, Marshall
stated that his philosophy was one of judicial activism, “You do what you think is right and let
the law catch up.”104 Marshall, besides the historical significance of his nomination, was an ideal
justice for Johnson since he would likely uphold Johnson’s Great Society. Marshall was the
Chief Legal Counsel for the NAACP, was the lawyer for ​Brown v. Board of Education​, and by
all accounts, was a “New Deal liberal” who “demonstrated an unwavering commitment to
universal civil rights and civil liberties.”105 It was almost a guarantee that Marshall would never
overturn Great Society legislation.
Johnson would have the opportunity to chose a Chief Justice with the retirement of Earl
Warren. Johnson nominated friend and Associate Justice Abe Fortas to the position, and Homer
Johnson, L.B. (2002). ​Reaching for Glory: Lyndon Johnson’s Secret White House Tapes, 1964-1965​. New York,
N.Y.: Simon and Schuster.
102
Johnson, L.B. (2002). ​Reaching for Glory: Lyndon Johnson’s Secret White House Tapes, 1964-1965​.
103
Johnson, L. (1965, July 28). The American Presidency Project.
104
Savage, C. (2010, May 12). “Kagan’s Link to Marshall Cuts 2 Ways.” ​The New York Times​.
105
PBS. (N/A). “Biography of the Robes: Thurgood Marshall.”
101
Kaufman 51
Thornberry to be an Associate Justice. However, the Senate refused to confirm Fortas to the
position of Chief Justice. Some argue that Fortas was not confirmed due to his liberal ideology,
his close friendship to Johnson, and Johnson’s subpar “management of the nomination.”106 While
one cannot possibly know the inner workings of Johnson’s decision making process and how he
decided to appoint Fortas to be Chief Justice, one can assume that given the reasons he was made
an Associate Justice (his friendship with Johnson and his willingness to uphold the Great
Society, a program only possible because of the death of Liberty of Contract) Johnson nominated
Fortas to serve as Chief Justice.
When Johnson sought to elevate Fortas from Associate Justice to Chief Justice he
nominated Homer Thornberry to take the spot of Associate Justice that was presumably empty
due to the Fortas elevation. The belief was that the native Texan would “mollify skeptical
southern senators”107 so he could get the Fortas nomination through, which would be seen as a
show of bipartisanship if not for the fact that Johnson and Thornberry were close political allies
and shared similar ideologies. However, as the LBJ Library argues, “Thornberry grew up in the
Jim Crow South and….supported segregation along with his Southern colleagues in Congress
during the 1940s and early ’50s.”108 On the other hand, Johnson and Thornberry were old friends,
with Thornberry apparently visiting Johnson daily when he was recovering from a heart attack in
1955 and moving to Washington in November of 1963 to help Johnson transition into his role as
President.109 The complexity of the Thornberry nomination is not to be underestimated.
Massaro, J. (Winter, 1982-1983). “LBJ and the Fortas Nomination for Chief Justice.” ​Political Science Quarterly.​
Vol. 94 (4). pp 603-621.
107
United States Senate. (1968, October 1). “Filibuster Derails Supreme Court Appointment.”
108
Barnes, M. (2017, February 1). “Homer Thornberry: Austin’s Congressman, Judge and Supreme Court
Nominee.” ​Austin American-Statesman​.
109
Thomas, R. (1995, December 13). “Homer Thornberry, Appeals Judge, Dies at 86.” ​The New York Times​.
106
Kaufman 52
Perceived as a southern Democrat who was wary of the civil rights movement, perhaps the
nomination of Thornberry truly was to mollify southern senators, given his support of
segregation at the time of his appointment. What is frustrating about this nomination, and in
other nominations too, is that one cannot know with certainty why someone was nominated since
most Presidents do not share their entire decision making process with the public. Looking at the
friendship of the two men and Thornberry’s commitment to segregation, one could make a
strong argument that Johnson appointed Thornberry to the bench as a show of appeasement to
southern Democrats while still having the opportunity to appoint a friend and an old political ally
to the bench, who, when faced with the opportunity, would perhaps protect Johnson’s Great
Society. Unfortunately, the plan failed and Nixon had the opportunity to nominate Warren
Burger to the position of Chief Justice.
The Great Society was Johnson’s brainchild and legislation that he never wanted to see
die. He would do anything in his power to guarantee that the Court would not overturn it, like it
did to FDR’s New Deal. Johnson chose two justices that would never dream of overturning this
legislation, as well as never allow for a return of Liberty of Contract, since that would almost
guarantee a strike-down of the Great Society. While Johnson never mentioned Liberty of
Contract by name, certainly the President knew that a return to Liberty of Contract would be
devastating for his Great Society. At the same time, Johnson had to deal with the re-alignment of
the Democratic Party, and nominating a Southern Democrat to the bench was his way of
mollifying those within his party who opposed his policies.
Kaufman 53
Nixon
Nixon’s nominees reflect a conservative President’s desire to go back to more
conservative norms on the Court. Nixon wanted the Court to shift its norms to be more
conservative. For Nixon, substantive due process should be a Liberty of Contract question, not
an equal protection question. Nixon would have the opportunity to fill four seats on the Court,
including that of a Chief Justice, being the first conservative President after FDR to have an
opportunity to push back on substantive due process.
During Nixon’s presidency, the Republican party was growing more conservative (but
not totally cohesive) and attracting more voters because, as Sundquist argues, “polar bloc of
voters….[went to] Richard Nixon over George McGovern” because Nixon, in his first term, “had
denounced busing and withdrawn support of the Departments of Justice and Health, Education,
and Welfare for efforts to speed school segregation in the South; had nominated three southern
conservatives for the Supreme Court (two whom failed to win Senate confirmation), and had
otherwise used ‘code words’ and created the ‘symbolism’ that appealed to the segregationists.”110
Those who were once Southern Democrats were still looking for their place in a party and found
their ideologies represented by Nixon. However, the Republican party, had still not become
totally cohesive as illustrated four years later when that bloc of voters supported “their fellow
southerner, Democrat Jimmy Carter.”111 However, the Republican party was growing more
conservative during the time of Nixon, which was reflected in Nixon’s Supreme Court
nominations.
Sundquist, J. (1983). ​Dynamics of the Party System: Alignment and Realignment of Political Parties in the United
States​. 369-370
111
Sundquist, J. (1983). ​Dynamics of the Party System: Alignment and Realignment of Political Parties in the United
States​. 374
110
Kaufman 54
When asked about his judicial ideology Nixon stated, “Now, during the campaign, I set
forth, as some of you may remember, my own philosophy with regard to what the role of a judge
should be, a judge particularly of the Supreme Court….I said, and I think I used the term, that I
was a strict constructionist.”112 He would go on to say, “I happen to believe that the Constitution
should be strictly interpreted, and I believe, as did Mr. Justice Frankfurter-and I just use him only
as an example, because most of the judges in our Courts through the years have held this
philosophy-Mr. Justice Frankfurter felt it was his responsibility to interpret the Constitution, and
it was the right of the Congress and the right of the State legislatures to write the laws and have
great leeway to write those laws, and he should be very conservative in overthrowing a law
passed by the elected representatives of the people at the State or Federal level.”113
A strict constructionist is a judicial ideology that restricts the ability of justices to
interpret the constitution. The judicial philosophy of strict constructionism states that a justice
must interpret the constitution so literally “so that the government is permitted to do nothing
more than what is explicitly stated in the document.”114 The judge must call balls and strikes, if
you will. For a strict constructionist there is a desire to go back to a Liberty of Contract before
FDR. For a strict constructionist there is little room in Supreme Court decisions for interpretation
of the constitution.
The best example of strict construction occurred in the case of ​U.S. v. Butler​, a case that
ruled the Agricultural Adjustment Act unconstitutional in 1936, arguing that the role of the Court
was to simply state what the constitution said and if the law in question violated the constitution.
Said Justice Owen Roberts in the decision, “when an act of Congress is appropriately challenged
112
Nixon, R. (1969, May 22). The American Presidency Project.
Nixon, R. (1969, May 22). The American Presidency Project.
114
Ducat, C. (2013). ​Constitutional Interpretation​, 80
113
Kaufman 55
in the Courts as not conforming to the constitutional mandate, the judicial branch of government
has only one duty; to lay the article of the Constitution which is invoked beside the statue which
is challenged and to decide whether the latter squares with the former. All the Court does, or can
do, is to announce its considered judgment upon the question.”115 The striking down of the
Agricultural Adjustment Act was another blow to FDR’s New Deal, which furthered his
resolution to overturn the Liberty of Contract doctrine.
Nixon’s campaign slogan was “law and order,” an idea that he would reinstate law and
order into the judiciary. At the end of the 1960s and beginning of the 1970s protests were
ravaging the nation and conservatives were frustrated with the social movements happening
around the nation. As one historian stated, “by 1968 law and order was the most important
domestic issue in the Presidential election and arguably the decisive factor in Richard Nixon’s
narrow triumph over Hubert Humphrey. Almost 12 million voters had deserted the Democratic
banner since the Johnson landslide four years earlier, many because they had come to believe
that personal safety was now of necessity a political priority.”116 For Nixon, there was a need for
the judiciary to uphold law and order. During the civil rights era the Court was ruling in ways
that were only possible due to the switch in substantive due process. If Nixon, and those who
agreed with the notion of “law and order,” wanted to see a shift in the judiciary to no longer rule
in favor of those who were protesting and disrupting society, it only makes sense that they would
desire Supreme Court justices who subscribed to the ideology of strict constructionism, an
ideology that required a return to the era of before the constitutional revolution. This judicial
ideology was an ideology that was reflected in the re-aligning of the Republican party.
115
116
​U.S. v. Butler​. (1936).
Flamm, M. (2005). ​Law and Order: Street Crime, Civil Unrest, and the Crisis of Liberalism in the 1960s​. 2.
Kaufman 56
Nixon’s first nomination came in the form of a Chief Justice in 1969. As Nixon said,
“There is a different standard for a Chief Justice than there is for a Justice, not in terms of
intellectual qualifications, not in terms of knowledge of law, not in terms of the character, and
that sort of thing, but in terms of what I describe as a leadership quality. The Chief Justice is the
leader of the Court. He is the chief administrative officer of the Court.”117 Warren retired at the
end of Johnson’s first (and only) term. Johnson attempted to elevate Abe Fortas, a close friend
and Associate Justice, to the title of Chief Justice. However, due to a Senate filibuster, Nixon got
the ability to fill the position with a strict constructionist, Warren Burger. Said Nixon, “What I
was interested in was his background, his general legal philosophy, which, as I said, to me is
close to mine;”118 a legal philosophy of strict constructionist.
Nixon made an interesting comment when discussing the nomination of Burger. He
stated “Judge Burger has, in the Circuit Court of Appeals of the District of Columbia, has written
some opinions and also he has written articles and made speeches that I think reflect what is now
the minority view or has been the minority view of the Supreme Court. It happens to be my view.
I would hope it would become the majority view.”119 What is interesting about this statement is
that Nixon is arguing that the view of a strict constructionist is the minority view of the Court, a
view that Nixon would like to see as the majority view. This statement perfectly aligns with the
thesis that conservative Presidents after FDR have been trying to go back to the Court that
favored a strict constructionism, and the Republican party was growing more and more
conservative. Nixon appointed Burger to the Court with the expressed interest of making strict
constructionist the ideological norm of the Court.
117
Nixon, R. (1969, May 22). The American Presidency Project.
Nixon, R. (1969, May 22). The American Presidency Project.
119
Nixon, R. (1969, May 22). The American Presidency Project.
118
Kaufman 57
In 1969 Nixon had another opportunity to fill a seat on the Court. Nixon’s nominees
would reflect his vision for the Court to go back to pre-FDR norms. First, Nixon asked Powell to
accept a nomination, which Powell turned down (Nixon would successfully nominate him in
1971). Next, Nixon attempted to nominated Clement Haynsworth. The nomination went poorly,
but a month after his nomination, Nixon still stood beside his nominee; “I still have confidence
in Judge Haynsworth’s qualifications, in his integrity. I believe that the Senate should approve
him. I believe it will. I believe that he will be a great credit to the Supreme Court when he
becomes a member of that Court, I hope in the fall term.”120 On November 21, 1969 the Senate
rejected his nomination by a vote of 44-55.121 After Haynsworth’s failed nomination, Nixon
nominated Harrold Carswell to the bench, who was subsequently rejected on April 8, 1970 by a
vote of 45-51122 for reasons having to do with racist and misogynistic beliefs.123
Nixon would finally find a successful nominee in Harry Blackmun. Blackmun had been a
childhood friend of Chief Justice Warren Burger. As Clinton stated when Blackmun retired from
the bench, “Some labeled him a strict constructionist. But he rejected any attempt to tag him with
a label, saying, and I quote: ‘I’ve been called liberal and conservative; labels are deceiving. I call
them as I see them.’”124 Ron Zeigler, Nixon’s Press Secretary stated that Nixon believed
Blackmun to be a “strict constructionist.”125 This belief of Blackmun being a “strict
constructionist” aligns perfectly with Nixon’s statement that he would only nominate those to the
120
Nixon, R. (1969, September 26). The American Presidency Project.
Congressional Record, Senate. (1969, November 21). “Vote of Clement Haysnworth.”
122
Congressional Record, Senate. (1970, April 8). “Vote on Harold Carswell.”
123
Congressional Record, Senate. (1970, January 27-29, February 2-3). “Hearings before the Committee on the
Judiciary United States Senate.”
124
Clinton, W. (1994, April 7). “Statement on Retirement of Blackmun from Court.” ​New York Times​.
125
Crimson, The. (1970, April 15). “Nixon Designates Judge Blackmun As New Supreme Court Nominee.” ​The
Harvard Crimson​.
121
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bench who shared his judicial philosophies and that the Republican party wished to revert to a
time when the Court did not make law from the bench, but rather simply stated what the
constitution said, a time when the Court was more conservative.
The question that one has to ask is if the failed Nixon nominations became a motivating
factor in the eventual nomination of Blackmun. During an address in 1970 following the failed
nominations of Carswell and Haynsworth, Nixon stated:
“I have reluctantly concluded--with the Senate as presently constituted--I cannot
successfully nominate to the Supreme Court any Federal appellate judge from the
South who believes as I do in the strict construction of the Constitution...But
when all the hypocrisy is stripped away, the real issue was their philosophy of
strict construction of the Constitution, a philosophy that I share, and the fact that
they had the misfortune of being born in the South. After the rejection of Judge
Carswell and Judge Haynsworth, this conclusion is inescapable...My next
nominee will be from outside the South and he will fulfill the criteria of a strict
constructionist with judicial experience either from a Federal bench or on a State
appeals Court.”126
Nixon, holding firm to his convictions, stated the reason Carswell and Haynsworth were not
approved by the Senate to the Court was due to their southern origins. However, while he may
have been willing to compromise on the birthplace of a justice, he would not compromise on the
ideology of a nominee. Blackmun, born in Illinois and raised in Minnesota was no southerner,
but, in Nixon’s mind, was a strict construction. The failed nominations of Carswell and
Haynsworth did become a factor of who Nixon would nominate to the Court. Nixon was willing
to compromise on birthplace, but not ideology.
In 1971 Nixon would fill his third and fourth Supreme Court seats at the same time with
Lewis Powell and William Rehnquist. In a televised speech to the nation Nixon stated,
“Presidents come and go, but the Supreme Court, through its decisions, goes on forever.”127
126
127
Nixon, R. (1970, April 9). The American Presidency Project.
Nixon, R. (1971, October 21). The American Presidency Project.
Kaufman 59
Addressing the possibility of putting a woman or minority on the Court, Nixon said, “I believe,
as I am sure all Americans do, that the Supreme Court should, in the broadest sense, be
representative of the entire Nation. But with only nine seats to fill, obviously every group in the
country cannot be represented on the Court.”128 For Nixon, ideology was more important than
representation, especially the ideology of strict constructionist; “it is my belief that it is the duty
of a judge to interpret the Constitution and not to place himself above the Constitution or outside
the Constitution. He should not twist or bend the Constitution in order to perpetuate his personal
political and social views....It is my firm conviction tonight that Lewis Powell and William
Rehnquist will earn the same respect, and that as guardians of our Constitution, they will
dedicate their lives to the great goal of building respect for law and order and justice throughout
this great land of ours.”129
Nixon clearly wanted a specific ideology on the bench, that of strict constructionism.
Nixon’s slogan of “law and order” called for the judiciary to no longer side with a minority of
the nation130 (in the 1970 census 87.5% of the population was classified as “white” while 11.7%
of the population was classified as “black or African American”131). The white middle class was
growing more and more frustrated with the protesters and desired for the Supreme Court to
“overturn recent rulings and ease excessive restraints on the police, allowing them to collect
evidence and conduct interrogations as they saw fit within broad limits. And the federal Courts
should set a positive example by imposing harsher sentences on convicted criminals,”132 which
led many of those folks to shift their support to the Republican party. Referring to the Great
128
Nixon, R. (1971, October 21). The American Presidency Project.
Nixon, R. (1971, October 21). The American Presidency Project.
130
Flamm, M. (2005). ​Law and Order: Street Crime, Civil Unrest, and the Crisis of Liberalism in the 1960s​.
131
Census, United States. (1940). “A Look at the 1940 Census.”
132
Flamm, M. (2005). ​Law and Order: Street Crime, Civil Unrest, and the Crisis of Liberalism in the 1960s​. 3.
129
Kaufman 60
Society as a “bad program”133 in his 1971 State of the Union, Nixon sought to make America a
favorable place for those who felt pushed to the side by the Civil Rights movement. Nixon
sought to bring back law and order, with law and order favoring “the non-shouters; the
non-demonstrators.”134 Nixon wanted to get citizen off of welfare and “on to payrolls,”135 and to
do that he would give tax credits to businesses and cut regulations so more citizens can work.136
For Nixon, a return to an era with limited regulations and little regard for those protesting would
help his law and policy ideology come to fruition. By placing strict constructionists on the bench,
Nixon would guarantee a return to an era not favored by LBJ, JFK, or FDR. The liberal norms of
the bench would be no more and there would be a return to a pre-constitutional revolution era,
which reflects the growing conservatism within the Republican party.
Ford
Following the events of Watergate and Ford’s subsequent rise to power, the man who
never expected to become President had the ability to fill a Supreme Court seat. In 1975 Ford
would nominate John Paul Stevens, a Nixon appointment to the Seventh Circuit, to the bench. In
a cruel twist of ironic fate, Ford got to replace Justice Douglas, the man he attempted to impeach
while a member of Congress. If Nixon had not been forced to resign the presidency it would
have been his seat to fill. Nevertheless, Ford made the decision to elevate a Nixon appointee to
the Supreme Court, following in his ideals that justices should be strict constructionists and a
desire to go back to an era of substantive due process.
133
Nixon, R. (1971, January 22). The American Presidency Project.
Nixon, R. (1968, August 8). The American Presidency Project.
135
Nixon, R. (1968, August 8). The American Presidency Project.
136
Nixon, R. (1968, August 8). The American Presidency Project.
134
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In the same vein as Nixon, Ford subscribed to the notions of law and order. When asked
about the Supreme Court in a 1976 Presidential debate Ford brought up ​Miranda v. Arizona​,
stating that the ​Miranda​ decision made it “very, very difficult for the police, the law enforcement
people in this country, to do what they could to make certain that the victim of a crime was
protected and that those that commit crimes were properly handled and sent to jail…. I am
pleased to see that there are some steps being made by the Burger Court to modify the so-called
Miranda decision.”137
In a press conference following the retirement of O’Douglas, Ford was asked what
philosophies he was looking for in a Supreme Court Justice. While refusing to answer that
question specifically, he did answer a question asking if he would nominate someone who will
“continue to move away from the sort of libertarian attitudes espoused by the Warren Court”138
to which Ford responded, “I have felt that the Court has moved somewhat in a direction that I
approve in the last several years, yes.”139 The direction that Ford approved of was a direction that
moved away from the ultra-activist Warren Court, a Court whose actions were only permissible
under the death of Liberty of Contract and the shift in substantive due process.
A few days later, while proposing a toast to the Supreme Court Justices, Ford stated,
“With a clear understanding of history, the framers knew that an independent judiciary, the
guardian of a written constitution, is essential to the preservation of individual liberties under a
government of limited powers.”140 An important phrase to note is “guardian of a written
constitution,” implying that he believes that Justices serve as the protector of the Court, that they
137
Ford, G. (1976, October 22). The American Presidency Project.
Ford, G. (1975, November 14). The American Presidency Project.
139
Ford, G. (1975, November 14). The American Presidency Project.
140
Ford, G. (1975, November 24). The American Presidency Project.
138
Kaufman 62
should read the constitution as it was written by the framers, with a limited room for
interpretation.
While Ford continually stated that he was mainly focused on finding a justice who was
qualified to sit on the bench, like previous Presidents, Ford wished to find a qualified justice
whom shared his judicial ideologies. Ford wished to nominate a justice who shared his
conservative views. By stating that he approved of the conservative swing of the Court following
the Warren Court, the reasonable conclusion is that Ford wished to find a conservative justice
who would fit with the conservative trend of the Court. By appointing John Paul Stevens, a
Nixon appointment to the Seventh Circuit, Ford showed his desire to bring the Court back to
conservative norms, as opposed to the tremendous liberal shift after FDR.
When asked about Supreme Court nominations, in the same debate, Ford proclaimed that
if given the opportunity, he would nominate another justice similar to Stevens.141 Once on the
bench Stevens would become a liberal voice on the Court; but was at the time of his nomination
a noted conservative.142 The notion of buyer’s remorse and Supreme Court justices is hardly a
new notion. Presidents nominate justices thinking they will rule one way only to have their
ideologies shift once on the Court. Ford is simply another example of Presidential preferences
and a Republican desire to shift the Court back to an era of limited government.
Reagan
The main purpose of Reaganomics was to reduce taxes and reduce regulations on
businesses in hope that economic growth would be restored. Reaganomics was the policy that
141
Ford, G. (1976, October 22). The American Presidency Project.
Staff, NCC. (2016, November 28). “On this day, John Paul Stevens Nominated to the Supreme Court.”
Constitution Daily​.
142
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“stressed lower taxes, higher defense spending, and curtailed spending for social services. After a
reduction of growth in the money supply by the Federal Reserve Board combined with
Reaganomics to produce a severe recession in 1981–82, the Reagan years were characterized by
huge budget deficits, low interest and inflation rates, and continuous economic growth.”143
Reaganomics only worked under a free-market economy, and under a free-market economy,
there is a desire for limited government regulations and interference. More or less, the idea is that
if one leaves businesses alone the economy will grow itself. While Reagan desired these
economic policies, it is unclear if he understood the affect judicial nominees could have on his
economic policies. As political scientist Chester A. Newland argues, “It was clear in the
selection of the Cabinet and later in the appointment of Sandra Day O’Connor to the U.S.
Supreme Court that President Reagan did not apply a rigid test to top appointees -- at least not as
restrictive as the ideological Right wanted.”144 Reagan knew he wanted the role of government in
economics to be limited, but he did not overhaul the government as dramatically as he could
have. Reagan had the opportunities to appoint justices to the bench that would further his
economic ideologies, and he did, to an extent, but not as drastically as he could have.
The height of free-market economies in the United States existed during the heyday of
Liberty of Contract. Free from government regulations, businesses could engage in whatever
business practices they desired. Under Reaganomics, there would be a return to free-market
businesses, albeit, perhaps not as dramatic as during the Liberty of Contract era. Reagan would
not look to nix a minimum wage, but he would seek justices whose judicial philosophies would
​Reaganomics. (2014). In J. Downes, & J. E. Goodman, ​Dictionary of Finance and Investment Terms​ (9th ed.).
Hauppauge, NY: Barron's Educational Series.
144
Newland, C. (1983, January-February). “A Mid-Term Appraisal-The Reagan Presidency: Limited Government
and Political Administration.” ​Public Administration Review​. Vol. 43 (1). pp. 1-21.
143
Kaufman 64
allow a return to limited government and government regulations. While he did nominate
increasingly conservative justices to the bench, fitting with the notion that conservative
Presidents have nominated increasingly more conservative justices over time, there is little
evidence that Reagan saw the Court as a mechanism for limiting government interference in
business practices. As political scientist Chester A. Newland argues, “Three features dominated
Reagan administration behavior during the first two years: [the first being] unswerving
adherence to the policy thrust of limiting government and freeing up the economy…. The
months following the election through August 1981 were a carefully scripted transition drama
with respect to promoting and enacting policies to cut back governmental programs, budgets,
and-most importantly - taxes...That script for limiting government largely succeeded.”145
While rallying against Carter, inflation, and unemployment rates that occurred under the
Carter administration, Reagan stated that, if elected, “we must carefully re-examine our
regulatory structure to assess to what degree regulations have cost jobs and economic growth.
There should and will be a thorough and systematic review of the thousands of federal
regulations that affect the economy.”146 Reagan made it very clear that if elected President his
first priority would be economic recovery and growth. One of the main ways he would
perpetuate economic growth would be through a review of regulations, regulations that could be
hindering economic recovery. While Roosevelt sought economic regulations to help the nation
recover from the Great Depression, Reagan sought to remove economic regulations to aid the
nation in its recovery from high unemployment and inflation rates.
145
Newland, C. (1983, January-February). “A Mid-Term Appraisal-The Reagan Presidency: Limited Government
and Political Administration.”
146
Reagan, R. (1980, October 24). The American Presidency Project.
Kaufman 65
Reagan was not a lawyer by training. He was an actor turned politician who was elected
President. The issues Reagan was most focused on were issues most in the forefront of American
society. Reagan was focused on abortion, crime, obscenity, and drug abuse. Reagan famously
had programs such as “just say no” and was an avid critic of ​Roe v. Wade​. Reagan believed that
the judiciary would be best when it followed the doctrine of originalism. Said Reagan, a few
months after nominating Scalia to the bench, “In many areas—abortion, crime, pornography, and
others—progress will take place when the Federal judiciary is made up of judges who believe in
law and order and a strict interpretation of the Constitution.”147
Borrowing the rhetoric of Nixon and late-twentieth century conservatism, Reagan
constantly expressed his desire for a judiciary that followed a doctrine of originalism,148 since a
limited interpretation of the constitution would not uphold prior decisions regarding abortion,
obscenity, and others. As Reagan’s Director of Communications stated in a letter, Reagan had a
“relentless effort to restore constitutionality to the Third Branch of Government, especially with
the nominations of Justice Scalia and Chief Justice Rehnquist.”149 Reagan, in the swearing-in
ceremony for Rehnquist and Scalia praised justices who place the constitution above personal
beliefs, counting Holmes and Frankfurter as the ideal justices, both originalists. Said Reagan,
“Chief Justice Rehnquist and Justice Scalia have demonstrated in their opinions that they stand
with Holmes and Frankfurter on this question. I nominated them with this principle very much in
mind. And Chief Justice Burger, in his opinions, was also a champion of restraint. All three men
understand that the Founding Fathers designed a system of checks and balances, and of limited
government, because they knew that the great preserver of our freedoms would never be the
147
Reagan, R. (1986, August 5. The American Presidency Project.
Heritage Foundation. (2005, June 6). “The Case for ‘Originalism.” ​The Heritage Foundation​.
149
Reagan, R. (1987, March 3). The American Presidency Project.
148
Kaufman 66
Courts or either of the other branches alone. It would always be the totality of our constitutional
system, with no one part getting the upper hand. And that’s why the judiciary must be
independent. And that is why it must exercise restraint.”150
Looking at the doctrines of originalism and textualism, doctrines that ruled the Court
before 1937, and following them to their most logical conclusions, Reagan desired a return to
limited government interference in business, since it did not allow for judicial or legislative
interference into the practices of businesses. His Reaganomics program called for limited
government regulations and laissez-faire economic growth, and he looked for justices that
believed in limited government interferences (outside of the Bill of Rights).
Reagan’s first appointment opportunity came soon after he took office in 1981, fulfilling
a campaign promise of nominating a woman to the first open seat on the Court. In the end he
nominated Sandra Day O’Connor, who would become the first woman to serve on the Supreme
Court. Certainly, Reagan was not going to appoint simply any woman to the Court. In a ​New
York Times​ article from 1981 it was stated “The White House has made it clear that Mr. Reagan
wants the nominee to be compatible with his overall philosophy of judicial restraint, which
includes avoiding the imposition of drastic remedies in desegregation, regulatory and criminal
cases.”151 While gender certainly was important to Reagan, ideology was just as important, if not
more important. This struggle to find a justice who fulfills two requirements (in this case, gender
and ideology) illustrates just how complex and nuanced Supreme Court nominations are. For
Reagan, gender was important, but her ideology of judicial restraint is what made O’Connor
stand out.
150
Reagan, R. (1986, September 26). The American Presidency Project.
Weisman, S. (1981, July 1). “Reagan Aides say ‘Short List’ of Candidates for Court is Ready.” ​The New York
Times​.
151
Kaufman 67
After appointing O’Connor to the bench, Reagan stated: “I can tell you I firmly believe
that she [O’Connor] is imbued with the philosophy that we put into our platform at the
convention in Detroit. And I’m convinced she’ll make a fine Justice, not just because she’s the
first woman on the Court but she also brings, as I say, a philosophy with her that I believe is
especially appropriate for the Court. As she said in her testimony before the Senate, ‘...the proper
role of the judiciary is one of interpreting and applying the law, not making it.’ I believe that
Mrs. O’Connor’s commitment to judicial restraint will help to redefine the Court’s role in our
daily life. Sandra O’Connor is a new Justice for a new American era.”152 O’Connor’s belief of
limited government and the limited role of the judiciary in interpreting governmental actions
made her an appealing candidate for the Court.
As a champion of small government and limited regulations, Reagan’s elevation of
Rehnquist to Chief Justice makes sense. The Nixon appointee, whom Nixon had called a
“guardian” of the Constitution, favored limited government interference. On the Court Rehnquist
had proven to be one of the most conservative justices, not ruling in favor of cases that dealt with
federal regulations. However, Rehnquist, as an Associate Justice, ruled in the majority of
National League of Cities v. Usery​, a case that dealt with government regulation and workers
wages and rights,153 indicating that Reagan knew that Rehnquist did not necessarily want a return
to a Liberty of Contract era. Perhaps Reagan nominated Rehnquist to the position of Chief
Justice simply for his dissent in ​Roe v. Wade​ or because of his known conservative stance.
Perhaps this overlook of ​Usery​ illustrates that while Reagan may not have desired a complete
return to the Liberty of Contract era, just limited government interference with businesses.
152
153
Reagan, R. (1981, September 18). The American Presidency Project.
Ducat, C. (2013). ​Constitutional Interpretation​, 337
Kaufman 68
Whatever the case may be, the fact is that Rehnquist had the opportunity to bring back Liberty of
Contract and substantive due process, and he did not, and Reagan still appointed him to be Chief
Justice.
Known as the conservative voice on the bench for decades until his death, Antonin Scalia
was nominated to the bench to take Rehnquist’s Associate Justice position. Nominated on the
same day, Scalia was the obvious choice for a conservative Reagan, and fits the trend of
increasingly conservative nominees to the Supreme Court. During the swearing in ceremony for
Rehnquist and Scalia, Reagan spoke of judicial restraint and how both men subscribe to that
judicial ideology.154 For Reagan, as mentioned before, judicial restraint was important to him,
and the defining factor he looked for in judicial nominees.
The last seat on the bench Reagan had the opportunity to fill turned out to be the most
dramatic. First nominating known originalist Robert Bork to the bench, Reagan ran into serious
problems during his hearings when Bork stated that, due to his ideology of originalism, he could
not support the ​Brown​ decision.155 While Scalia ran into the same issue during his hearing, Scalia
responded during his hearing that while being an originalist (originalism not allowing for ​Brown
v. Board of Education​), he still would have sided with the majority in ​Brown​.156
Bork was nominated to the bench by Reagan for his judicial restraint and his actions in
undertaking Reagan’s war on crime as Solicitor General. Said Reagan, “Judge Bork believes that
judges should not make the laws; their function is to interpret the laws based on the Constitution
and precedent. It’s time we reassert the fundamental principle of the purpose of criminal justice
154
Reagan, R. (1986, September 26). The American Presidency Project.
United States Senate. (1987, September 15-30). “Nomination of Robert H. Bork to be Associate Justice of the
Supreme Court of the United States.”
156
United States Senate. (1986, August 5-6). “Nomination of Judge Antonin Scalia.”
155
Kaufman 69
is to find the truth, not to coddle criminals. The constitutional rights of the accused must be
protected but so must the rights of our law-abiding citizens….For the past 7 years, Federal
criminal sentences have increased 30 percent overall. Judge Bork’s nomination is a crucial
opportunity to continue our progress in the war against crime.”157 The day before Bork’s hearings
began, Reagan made a plea to the American people, stating, “Judge Bork believes laws should
govern our country and if you want them changed you should convince elected legislatures to
change them, not unelected judges. This doctrine of judicial restraint shouldn’t be controversial
in our democracy, but it is. And I hope it’ll be fully debated in the weeks ahead,”158 knowing that
Bork’s ideology would be controversial, but Reagan nominated him to the bench anyways. In the
end, Bork’s nomination became too controversial and the Senate voted down his nomination.
Following the failed nomination, Bork resigned from the DC Circuit Court of Appeals.159
Next, Reagan nominated Douglas Ginsburg to the bench. After nominating Bork, and
realizing that the Senate may not confirm him, Reagan stated, “If they reject him, I’ll give them
someone they will dislike just as much.”160 The Ginsburg nomination eventually ended with
Ginsburg withdrawing his nomination due to past drug use. Regardless, Ginsburg was nominated
by Reagan to the Supreme Court in 1987. Part of the reason Ginsburg was nominated to the
Court was due to his youth (he was in his early forties when he was nominated). Said one source,
“President Reagan, moreover, rather than seeing Judge Ginsburg’s age as a liability, considered
it a distinct advantage, a chance to select a Justice who could serve on the Court for a generation
157
Reagan, R. (1987, August 28). The American Presidency Project.
Reagan, R. (1987, September 14). The American Presidency Project.
159
Reagan, R. (1988, January 14). The American Presidency Project.
160
Reagan, R. (1987, October 22). The American Presidency Project.
158
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and pursue Mr. Reagan’s ideals long after the President had retired to California.”161 Reagan,
nearing the end of his presidency, wanted a justice who shared his ideology and would sit on the
Court for decades to come. On the other hand, little was known about Ginsburg since he was so
young and had written so little.162
It is not surprising that Reagan nominated Ginsburg because of his beliefs in judicial
restraint. In addition, Reagan had nominated Ginsburg to the U.S. Court of Appeals the previous
year and he was unanimously approved. Before sitting on the U.S. Court of Appeals, he had
served in Reagan’s Justice Department as Assistant Attorney General (Antitrust Division).163
When announcing his nomination Reagan stated “Judge Ginsburg is, as I am, as every justice
I’ve nominated has been, a believer in judicial restraint; that is, that the proper role of the Courts
is to interpret the law, not make it. In our democracy, our elected representatives make laws, and
unelected judges interpret the laws….Above all, judges must be guided by our most fundamental
law: the Constitution. Every judge that I appoint must understand that he or she serves under the
Constitution, not above it, and Judge Ginsburg is such a judge.”164 After explaining his reasoning
for nominating Ginsburg, Reagan bashed Congress for failing to approve his nominees. Reagan
said little publicly regarding the nomination of Ginsburg due to the drug use allegations that
came to light (and since Reagan was very anti-drugs, he could not possibly continue to support a
nominee that had admitted to drug use). In the end, Ginsburg withdrew his nomination and
continued to serve on the U.S. Court of Appeals until 2011.
161
Roberts, S. (1987, November 8). “Ginsburg Withdraws Name as Supreme Court Nominee, Citing Marijuana
‘Clamor.” ​The New York Times​.
162
Roberts, S. (1987, November 8). “Ginsburg Withdraws Name as Supreme Court Nominee, Citing Marijuana
‘Clamor.”
163
Reagan Library. (1985, July 17). “Nominations.” ​Reagan Library​.
164
Reagan Library. (1987, October 29). “Remarks Announcing the Nomination of Douglas H. Ginsburg To Be an
Associate Justice of the United States Supreme Court.” ​Reagan Library​.
Kaufman 71
At this point Reagan needed to appoint a justice who he knew would be approved to sit
on the Supreme Court, but would not nominate a justice who did not share his judicial
philosophy. His third nomination came in the form of Anthony Kennedy, a conservative justice
with a proven track record, no drug use, and was well-respected in both legal circles and the
Senate. One reporter asked Reagan if he was caving to Congressional Democrats with his
nomination of Kennedy, asking “Did you cave into the liberals, Mr. President? Some
conservatives are saying you caved into the liberals, appointing someone who can be confirmed,
but not appointing someone who is going to turn the Court around.”165 While this was a
legitimate question to ask Reagan, especially after the two failed nominations before appointing
Kennedy, Reagan still appointed a known conservative, fitting with the trend of conservative
Presidential nominating increasingly conservative justices. As Reagan said during his
nomination of Kennedy, “Judge Kennedy is what many in recent weeks have referred to as a true
conservative—one who believes that our constitutional system is one of enumerated
powers—that it is we, the people who have granted certain rights to the Government, not the
other way around. And that unless the Constitution grants a power to the Federal Government, or
restricts a State’s exercise of that power, it remains with the States or the people.”166
In defending his choice to nominate Kennedy to the bench, Reagan stated, “Judge
Kennedy is what many in recent weeks have referred to as a true conservative—one who
believes that our constitutional system is one of enumerated powers—that it is we, the people
who have granted certain rights to the Government, not the other way around. And that unless
the Constitution grants a power to the Federal Government, or restricts a State’s exercise of that
165
166
Reagan, R. (1987, November 11). The American Presidency Project.
Reagan, R. (1987, November 11). The American Presidency Project.
Kaufman 72
power, it remains with the States or the people.”167 Kennedy’s nomination makes sense when it
comes to Reagan’s desire to put justices on the bench that held an originalist ideology.
In a speech in February of 1988, Reagan extolled the virtues of limited government, and
how a limited government is inherently American:
“We’ve seen dramatic change in these 7 years. Who would have guessed 7 years
ago that we would see tax rates drop from 70 percent to 28 percent, the longest
peacetime economic boom in our history, or a massive shift in world opinion
toward the ideas of free enterprise and political freedom…..the differences
between the liberals and conservatives have become clear to the American people.
We want to keep taxes low; they want to raise them. We send in budgets with
spending cuts, and they want to ignore them. We want the balanced budget
amendment and the line-item veto, and they oppose them. We want tough judges
and tough anticrime legislation; they hold them both up in the Congress—you'd
be surprised how many judges are waiting out there before they—so that they
have to pass on them before they can take their office, and they’ve been waiting
for months. We want a prayer amendment; they won’t let it come to a vote in the
House. We stress firmness with the Soviets; they try to pass legislation that would
tie our hands in arms negotiations and endanger our defenses….Let’s ask the
American people to replenish our mandate. Let’s tell them if they want 4 more
years of economic progress and the march of world freedom they must help us
this year—help us settle the matter before lunchtime, help make 1988 the year of
the Waterloo liberal. I just have to add here, when you look at the figures overall,
that they have the nerve even to still be out there and campaigning.”168
For Reagan, government regulations for businesses would not help the economy; rather, the
government should leave businesses alone and trust them to help the American people. When
asked in 1987 if he would ask businesses to lower prices so more Americans could buy goods,
Reagan stated “I’m not going to make suggestions like that to them. I think that’s up to them.”169
Following that statement, Reagan blamed all economic issues America was facing in 1987 on the
Democrats since they had controlled Congress for the previous fifty years.170 For Reagan,
167
Reagan, R. (1987, November 11). The American Presidency Project.
Reagan, R. (1988, February 11). The American Presidency Project.
169
Reagan, R. (1987, October 22). The American Presidency Project.
170
Reagan, R. (1987, October 22). The American Presidency Project.
168
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economic stability was only going to occur when government did not regulate businesses and
when the judiciary was focused on original intent. Reagan continued on and stated that the
economic issues of 1987 had to do with democratic spending, going all the way back to 1931
(the New Deal) “You can go back all the way to 1931; we’ve been running deficits,”171 and if not
for democratic spending practices, the American economy would be stable.
Towards the end of his presidency, Reagan talked about the successes of his presidency
and laid out a blueprint for future American exceptionalism, which would only be possible
through a lack of regulations and laissez-faire economic policy. Said Reagan “it’s time to return
to the principles of our founders: the principles of the Constitution and the principles of limited
government-free enterprise and respect for family, community, and faith. And as a first step, we
said that the way to restore vitality to the economy was to cut marginal tax rates and cut needless
regulations.”172 Reagan sought limited government interference into businesses and wanted
justices that held an originalist ideology, an ideology that would not allow for government
interference into the practices of businesses. While Reagan may have not worried explicitly
about Liberty of Contract, given all his statements and his choices in Supreme Court
nominations, Reagan certainly wished for a return to a time where government placed few
regulations on businesses, a time where laissez-faire economics and a free-market economy was
prefered. These preferences align with the increase in conservatism in the Republican party and
the re-alignment of the party under Reagan.
171
172
Reagan, R. (1987, October 22). The American Presidency Project.
Reagan, R. (1988, December 13). The American Presidency Project.
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George H.W. Bush
Like the man he had served under as Vice President, President George H.W. Bush
wanted Supreme Court justices who believed in an originalist ideology. When asked in a
Presidential debate what kind of justices he would appoint, Bush stated “what I would do
is appoint people to the Federal Bench that will not legislate from the Bench, who will
interpret the Constitution….I will go out there and find men and women to interpret.”173
Bush then went on to say that he supported the nomination of Bork to the Supreme Court.
During his four years as President, Bush would have the opportunity to appoint two men
to the Supreme Court: David Souter and Clarence Thomas.
In Bush’s inaugural address, he stated in the beginning “We know what works: Freedom
works. We know what’s right: Freedom is right. We know how to secure a more just and
prosperous life for man on Earth: through free markets, free speech, free elections, and the
exercise of free will unhampered by the state.”174 For Bush, freedom means free markets, and
free will free from government regulations. In a speech in New York City in 1990, Bush
discussed how the nation was enjoying economic expansion (due to Republican policies), but
due to Democratic policies in New York, New York was not experiencing the same economic
successes or societal progress.175 In the mind of Bush, if New York followed Republican
economic policies of limited government, they too would experience economic prosperity.
Bush’s first Supreme Court nomination came early in his presidency. While Bush stated
that he did not ask Souter his opinion on any specific issues, since that would be “inappropriate,”
he did state that “Judge Souter, [is] committed to interpreting, not making the law -- he
173
Bush, G.H.W. (1988, October 13). The American Presidency Project.
Bush, G.H.W. (1989, January 20). The American Presidency Project.
175
Bush, G.H.W. (1990, July 24. The American Presidency Project.
174
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recognizes the proper role of judges in upholding the democratic choices of the people through
their elected representatives with constitutional constraints…. I have selected a person who will
interpret the Constitution and, in my view, not legislate from the Federal bench.”176 Bush wanted
a justice who would default to the actions of those elected by the people, justices who believed it
is the role of the justice not to legislate from the bench.
Like the Souter nomination, Bush desired to fill Marshall’s seat with “somebody that will
be seen as keeping with the judicial philosophy that I’ve always expounded in terms of
interpretation, not legislation. Somebody that is very broad-minded on issues;”177 Bush would go
on to nominate Clarence Thomas to the bench on July 1, 1991.178
During a press conference to announce the nomination of Thomas, Bush was asked the
following question: “Mr. President, the appointments made by President Reagan and you have
put the Court on a conservative road. Is that what you would like to see for the next 10 or 15
years, to reverse some of the more liberal rulings in the past 20 years?”179 Bush responded saying
that he was looking for a justice who would “faithfully interpret the Constitution and avoid the
tendency to legislate from the bench,”180 and that “the main consideration in addition to
excellence and qualification is this concept of interpreting the Constitution and not legislating
from the Federal Bench.”181 Bush, in his own words, wished to have a qualified justice on the
bench who would interpret the law, not legislate. And above all, he wanted a justice qualified to
sit on the bench.
176
Bush, G.H.W. (1990, July 23). The American Presidency Project.
Bush, G.H.W. (1991, June 28). The American Presidency Project.
178
Bush, G.H.W. (1991, July 1). The American Presidency Project.
179
Bush, G.H.W. (1991, July 1). The American Presidency Project.
180
Bush, G.H.W. (1991, July 1). The American Presidency Project.
181
Bush, G.H.W. (1991, July 1). The American Presidency Project.
177
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One has to wonder about the role of Anita Hill and the Bush administration’s unwavering
support of Thomas. Bush nominated Thomas without knowing what was to come in regards to
the Hill testimony. Bush continued to support Thomas, perhaps indicating that everything else
aside, he saw Thomas as qualified to sit on the bench and a justice that would interpret the law,
not legislate. Bush could have distanced himself from Thomas, asked him to withdraw his
nomination, but he did not, indicating that for Bush, the ideology on the bench was more
important than the person filling the seat.
While it is a noble endeavor to only nominate “qualified” justices to the bench, there are
plenty of “qualified” men and women who could sit on the bench, but no President is going to
appoint a justice to the bench who holds a differing ideology, unlike Eisenhower. Presidents,
while they might say they have refrained from asking justices how they will rule in certain
issues, have staffers who look at the voting records and writings of possible nominees. Presidents
are not blindly nominating Supreme Court Justices, Presidents are not picking random names out
of hats. Presidents have ideological preferences, and while they may not be asking nominees
directly what they think of government involvement with regards to economic regulations, they
are looking to see how they would rule on government regulations. Since FDR and his blatant
desire to overturn Liberty of Contract, one has to look at the actions of the President when
dealing with government regulations and then see how his ideals are reflected in a Supreme
Court nomination. In addition, by the early 1990s, the Republican Party was gaining a secure
holding in the South,182 and the Republican party was becoming more conservative and more
cohesive, which led them to nominate increasingly conservative justices to the Court. In the case
182
Wang, Sam. (2016, June 5). “The Second Phase of Realignment: 1976-2012.” ​Princeton Election Consortium​.
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of George H.W. Bush, he is nominating justices who he thinks share his ideologies and will rule
in favor of his preferences, his preferences being that of a limited government.
Bill Clinton
If George H.W. Bush had won re-election, he may have had more opportunities to
solidify conservative ideologies on the Court and more the Court more to the right. However,
Clinton won in 1992 and during his eight years as President, had the opportunity to fill two seats
on the bench. By the time Clinton entered the White House, the last justice to be appointed to the
Court by a Democratic President was twenty-six years prior and it was Thurgood Marshall, who
died during Clinton’s first year in office. Clinton nominated justices to the Court, justices typical
of Democratic Presidents, justices believed the government reserved the right to regulate
economic actions.
In an interview following the retirement of Byron White, the former Constitutional Law
professor discussed the fact that the four Republican Presidents that preceded him had the
opportunity to move the Court to the right. When asked what qualities he would look for in a
nominee, Clinton stated:
“Indeed, the political platforms of the Republicans were repeatedly filled with
litmus tests and specific requirements and everything, and pushing the Court to
the right. In fact, as has always been the experience with Presidents, some of the
appointees did, in fact, move to the right….I would like to put someone on the
Court who would make sure that there was a certain balance in the debate, that
there was a real feeling for the rights of ordinary Americans under the
Constitution, but that also someone who was hard-headed, who understood that
the criminal law had to be enforced, that you didn't want to over-legalize the
country. There’s a nice balance to be formed.”183
183
Clinton, W. (1993, March 24). The American Presidency Project.
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The ability of one justice to add a balance to the debate would be a stretch, considering all the
current justices on the Court were appointed by Republican Presidents. However, Clinton would
have the opportunity to place justices on the Court who, given their natural law ideologies,
would use the Equal Protection Clause to protect minorities and allow the federal government to
use regulations to protect the rights of Americans. That is not to say that the other Justices were
not interested in protecting the rights of minorities, but the difference between natural law and
positivism is that the former allows the federal government to use regulations derived from the
Bill of Rights to protect the rights of minorities, the latter would tell the federal government to
pass an amendment. Clinton would put natural law justices on the Court and started to move the
Court back to the left.
During the election Clinton stated that he would look for Supreme Court nominees who
had a clear record on abortion rulings,184 and given Ginsburg’s record as a lawyer for women’s
reproductive rights, Clinton’s desire to appoint a justice who would uphold ​Roe​, his nomination
of Ginsburg is hardly surprising. Referring to Ginsburg as “progressive,” an advocate for
women, and a consensus-builder,185 Ginsberg was the nominee that was expected of a
Democratic President in the mid nineties. Given that the previous four Presidents with the
opportunity to nominate Justices to the Supreme Court were Republicans, all their nominees
were conservatives who favored limited governmental regulations, and the previous four
Presidents had the ability to essentially replace any and all of the Roosevelt Justices, it is
understandable why Clinton would appoint a woman with such a strong record on upholding ​Roe
and other decisions that only were able to be upheld because of the rise in prefered freedoms
184
185
Stephanopoulos, G. (1993, February 1). The American Presidency Project.
Clinton, W. (1993, June 14). The American Presidency Project.
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(made possible from the death of Liberty of Contract). ​Roe​ was only possible because
substantive due process favored the Equal Protection Clause and the shift in strict scrutiny.
Clinton, a Democrat, wanted a justice who would, without question, uphold “liberal” decisions
of the Court. Clinton wanted the Court to shift back to the left, and while one justice may have
not been able to change the direction of the Court, an appointment of an unquestionably liberal
justice would guarantee at least a dissent in cases brought to the Court.
During the press conference where he nominated Ginsburg to the bench, Clinton
discussed Stephen Breyer as a possible future nominee, a justice similar to Ginsburg. Clinton
stated: “Judge Stephen Breyer of Boston, a man whose character, confidence, and legal
scholarship impressed me very greatly. I believe he has a very major role to play in public life. I
believe he is superbly qualified to be on the Court. And I think either one of these candidates, as
well as the handful of others whom I closely considered, may well find themselves in that
position someday in the future.”186 When the opportunity arose in 1994 to nominate another
justice to the bench, it was Stephen Breyer who Clinton nominated.
Clinton was consistent and predictable in his nominations. He chose typically liberal
justices who would not upset the liberal norms of the Court, justices who did not believe in a
return to a Liberty of Contract era. The day after the retirement of Harry Blackmun, Lloyd
Cutler, White House Counsel to Clinton, said that Presidents, specifically President Clinton, look
for Supreme Court nominees “who generally share the President’s sense of values -constitutional values, political values, et cetera.”187 While announcing both Breyer and Ginsburg
to the Court, Clinton discussed their ability to see both sides of the law, work as a consensus
186
187
Clinton, W. (1993, June 14). The American Presidency Project.
Cutler, Llyod. (1994, April 6). The American Presidency Project.
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builder, while still looking out for minorities.188 But, again, just because a justice can see both
sides of an argument and can build a consensus does not mean that the President will nominate
simply anyone to the bench. In fact, before nominating Breyer, Clinton wished to nominate the
Senate Majority Leader, George Mitchell, to the bench, but Senator Mitchell took his name out
of consideration.189 Clinton clearly desired nominees who shared similar political ideologies, a
justice who would uphold natural law.
George W. Bush
Like his father, Bush desired a justice who would call “balls and strikes,”190 a justice
whom shared a similar judicial ideology. Bush desired a justice that held the ideology of strict
constructionism. As a result, Bush would nominate three men and women who shared the ideals
that the Court should return to a time where justices felt the judiciary that ruled best was the
judiciary that simply interpreted the constitution.
In April of 2001 Bush was asked if he would consult with Senate Democrats if a spot on
the Supreme Court opened, since there was fear he would nominate justices who were
“philosophically extreme.”191 Answering the question, Bush stated that he would nominate a
justice that “share[s] my philosophy about strict constructionism on the Court.”192 What Bush
was calling for, in his nominees, was a return to a time where the Court did not defer to Congress
nor did the Court “interpret;” Bush was calling for the Court to simply call balls and strikes,
which is an ideology to which Roberts subscribed, which illustrates the continued increase in
188
Clinton, W. (1994, May 13). The American Presidency Project.
Clinton, W. (1994, May 13). The American Presidency Project.
190
United States Senate. (2005, September 12-15). “Confirmation Hearing on the Nomination of John G. Roberts, Jr.
to be Chief Justice of the United States.”
191
Bush, G.W. (2001, April 5). The American Presidency Project.
192
Bush, G.W. (2001, April 5). The American Presidency Project.
189
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conservatism within the Republican Party. As Roberts said himself in his Senate hearing,
“Courts today have strayed far beyond this limited role.”193
John Roberts was first a nominee for Associate Justice but after the death of Chief Justice
Rehnquist, Bush nominated Roberts to the position of Chief Justice, and nominated Harriet
Miers to fill the spot left open by the retirement of Sandra Day O’Connor. On the day of her
nomination Bush echoed the statements he made when nominating Roberts. Said Bush:
“I’m interested in people that will be strict constructionists, so we—and I’ve told
that to the American people ever since I started running for office. I said, ‘Vote
for me. This is the kind of judges I’ll put on the bench.’ And there should be no
doubt in anybody’s mind what I believe a judge— the philosophy of a judge. And
Harriet Miers shares that philosophy….I know her well enough to be able to say
that she’s not going to change, that 20 years from now she'll be the same person
with the same philosophy that she is today….but nevertheless, her philosophy
won’t change. And that’s important to me. It was important to me when I picked
Chief Justice Roberts. It’s important for me in picking Harriet Miers.”
Unfortunately for Bush, Miers was not confirmed to be a Supreme Court Justice. But not to
worry, Bush found another strict constructionist on the bench.
Samuel Alito was nominated because he shared President Bush’s judicial ideology of
strict constructionism. Again, like he said during Robert’s and Miers’s nomination, Bush
discussed the importance of strict constructionism and how both he and Alito share that judicial
philosophy; “He has demonstrated that he understands the proper role of a judge, to interpret the
Constitution and laws, not to impose the judge’s own preferences or priorities on the people.”194
Alito voiced this belief in his hearing, stating, “I think we should look to the text of the
Constitution and we should look to the meaning that someone would have taken from the text of
193
United States Senate. (2005, September 12-15). “Confirmation Hearing on the Nomination of John G. Roberts, Jr.
to be Chief Justice of the United States.”
194
Holland, S. (2005, November 5). “Bush Tries to Sell Americans on Alito.” ​The Washington Post​.
Kaufman 82
the Constitution at the time of its adoption.”195 George W. Bush wanted justices who would not
interpret the constitution but simply state what the document said. While Bush never explicitly
stated a desire to go back to an era of Liberty of Contract, the results of his ideology and
nominations would be just that. The nominations of Roberts, Miers, and Alito all reflect the will
of George W. Bush to bring the Court back to an era where interpretation was not the norm and
justices were not supposedly making law. In addition his nominees reflect the increase in
conservatism over time, while his successor’s nominees reflected the continued liberal norms of
the Court.
President Bush is a great example of the will of conservative Presidents to shift the Court
back to a time when there was a norm of limited government interference in economic
regulations. At the same time, the Republican party was gaining a secure bloc of voters in the
South by 2000,196 and finally making the increasingly conservative party cohesive. For
conservative ideology, it is not the Court who should tell the legislative branch what to do -- for
conservatives, the Court should simply tell the legislative branch if their laws run afoul to the
constitution. Conservative Presidents have a desire for a return to a time when the Court did not,
in their eyes, make law, but rather, would re-state what the constitution said and look to see if the
law in question ran afoul to the constitution.
Barack Obama
President Obama had the ability to nominate three justices to the Court who shared his
views regarding the constitution. One has to hesitate before assigning an ideology to Obama
195
United States Senate. (2006, January 9-13). “Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to
be an Associate Justice of the Supreme Court of the United States.”
196
Wang, Sam. (2016, June 5). “The Second Phase of Realignment: 1976-2012.”
Kaufman 83
since he never clearly stated his ideology (and if he subscribes to one) and scholars have never
been able to clearly subscribe an ideology to him. In any event, it is widely accepted that the
former Constitutional Law Professor is undoubtedly liberal in his judicial philosophy (whatever
it may be). In addition, his Affordable Care Act could be, arguably, an example of an expanded
freedom of an individual contract since it is a government mandate; it would be hard to imagine
a mandatory buy-in under a Liberty of Contract era. Meanwhile, under the Obama years, the
Democratic party was gaining firm support in the west,197 states that had typically been
Republican strongholds, illustrating that by the twenty-first century the parties were still
re-aligning from the FDR earthquake. This commitment to liberal values is most clear through
his Supreme Court nominees, Sotomayor, Kagan, and Garland.
As President Obama made an effort to nominate justices who belonged to disenfranchised
minorities; and while it is important to note that Obama desired to have justices who reflected
America as a whole, he was not simply nominating any person who is considered to be
underrepresented. President Obama stated in an interview, “I think there are some particular
groups that historically have been underrepresented—like Latinos and Asian-Americans—that
represent a larger and larger portion of the population. And so for them to be able to see folks in
robes that look like them is going to be important. When I came into office, I think there was one
openly gay judge who had been appointed. We’ve appointed ten.”198 The majority of Obama’s
judicial appointments were women and nonwhite males; “Forty-two per cent of his judgeships
have gone to women. Twenty-two per cent of George W. Bush’s judges and twenty-nine per cent
of Bill Clinton’s were women. Thirty-six per cent of President Obama’s judges have been
197
Wang, Sam. (2016, June 5). “The Second Phase of Realignment: 1976-2012.”
Toobin, J. (2014, October 27). “The Obama Brief: The President Considers his Judicial Legacy.” ​The New
Yorker​.
198
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minorities, compared with eighteen per cent for Bush and twenty-four per cent for Clinton.”199
However, like Reagan, just because Obama was looking for a justice who represented
underrepresented minorities does not mean he was picking them at random. Obama was looking
for justices that would share his liberal ideologies, the ideologies that have dominated the Court
since 1937.
Obama’s first opportunity to nominate a justice to the Court came with the retirement of
David Souter in 2009. The first justice he nominated to the Court was a Latina woman, Sonia
Sotomayor. When nominating Sotomayor Obama discussed the need for justice to interpret law,
but at the same time, understand the practicalities of “how the law works in the everyday lives of
the American people,”200 how as a former trial lawyer, she would bring that knowledge to the
bench. Sotomayor, in her remarks at the event, stated “I firmly believe in the rule of law as the
foundation for all of our basic rights,”201 and called the laws “principles,”202 implying that she
believes the law and government should be a mechanism by which individuals seek rights and
invoking a sense of natural law. In a press briefing later that day, Press Secretary Robert Gibbs
stated that Obama chose Sotomayor because “obviously the President believes strongly in her
approach to judging, following precedent and the rule of law,”203 and the following day stating
that she interprets the constitution as a “living document,” like the President.204
Obama’s second nominee was Solicitor General Elena Kagan, the former clerk for
Thurgood Marshall who also held the belief that the law and government should be the
199
Toobin, J. (2014, October 27). “The Obama Brief: The President Considers his Judicial Legacy.”
CNN. (2009, May 26). “Transcript of Obama-Sotomayor Announcement.” ​CNN​.
201
CNN. (2009, May 26). “Transcript of Obama-Sotomayor Announcement.”
202
CNN. (2009, May 26). “Transcript of Obama-Sotomayor Announcement.”
203
Gibbs, R. (2009, May 26). The American Presidency Project.
204
Gibbs, R. (2009, May 26). The American Presidency Project.
200
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mechanism by which citizens receive equality and rights. Listing her credentials, Obama
discussed her work as Solicitor General, specifically her work protecting citizens from
businesses; “During her time in this office, she’s repeatedly defended the rights of shareholders
and ordinary citizens against unscrupulous corporations….I think it says a great deal about her
commitment to protect our fundamental rights, because in a democracy, powerful interests must
not be allowed to drown out the voices of ordinary citizens”205 (a reference to her first case as
Solicitor General, ​Citizens United v. Federal Election Commission​). Like Sotomayor, Kagan
represented a group not often found on the bench (women) and held similar beliefs to her
nominating President in that she sought to protect the rights of citizens from corporations.
Because of her position as Solicitor General under Barack Obama, one can assume that she and
the President held similar beliefs regarding the law, and by putting Kagan on the bench, Obama
was acting as a result of Presidential preferences. If Obama did not agree with the ideologies of
Elena Kagan, it would be unlikely he would have nominated her to be Solicitor General, nor
would have sang her praises for going after corporations during her nomination.
Following the death of Antonin Scalia in 2016, Obama looked to fill what would most
likely be his last vacancy on the Court. Although the nomination of Merrick Garland was
unsuccessful (the Senate Judiciary Committee refused to bring it up for a vote), Garland was the
nominee a Democratic President with a Republican Congress, in an election year, one would
expect to be nominated. While Obama championed nominating underrepresented minorities
(who shared his ideology) to the bench, and Obama nominated a white man, Garland still shared
Obama’s liberal ideology. While announcing Garland to the bench, Obama made statements
205
Obama, B. (2010, May 10). “Transcript: Obama On Supreme Court Nominee.” ​NRP​.
Kaufman 86
similar to those when he nominated Sotomayor and Kagan. Calling him a consensus builder and
a sharp legal mind, Obama argued that like Sotomayor and Kagan, he “understands the way law
affects the daily reality of people’s lives in a big, complicated democracy, and in
rapidly-changing times. And throughout his jurisprudence runs a common thread -- a dedication
to protecting the basic rights of every American; a conviction that in a democracy, powerful
voices must not be allowed to drown out the voices of everyday Americans.”206
While President Obama has never stated his judicial ideology, it is clear that it is one
derived from natural law, and he chose justices that reflected his preferences. Like Clinton,
Obama desired to make the Court reflect the American population, but that does not mean
Obama was appointing any person who represented a minority to the bench. In addition,
Obama’s nominees reflected an ideology that sought to protect citizens from the actions of
businesses and other institutions through the Court, ideology that has been typical of the
democratic party since the realignment began. Obama was not going to nominate a justice that
desired a return to Liberty of Contract, and his statements regarding his nominees illustrate just
that.
Donald Trump
While Donald Trump has absolutely zero legal experience,207 his nomination of Neil
Gorsuch is the nominee that would be expected by a Republican President in this day and age
due to the increase in conservatism in the Republican Party. More conservative than the justice
206
White House. (2016, March 16). “Remarks by the President Announcing Judge Merrick Garland as his Nominee
to the Supreme Court.”
207
Although his sister, Maryanne Trump is a judge on the Court of Appeals for the Third Circuit who was nominated
to Courts by both Reagan and Clinton.
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he is replacing, Gorsuch fits perfectly with the thesis that Republican nominees are becoming
more and more conservative in an effort to return to a time where regulations were limited.
When announcing Gorsuch as a Supreme Court nominee Trump said “I promised [during
the election] to select someone who respects our laws and is representative of our Constitution
and who loves our Constitution and someone who will interpret them as written,”208 implying
that he wants a justice who favors limited government involvement.
In addition to searching for a nominee who would simply interpret the constitution as it
was written, Donald Trump is, self-admittedly, not a fan of business regulations, signing an
executive order that cut regulations for small businesses and made it so any new regulation
would only be permissible by the cutting of two other regulations (although there are still
questions on what counts as a regulation).209 The Trump White House supports legislation that
would “severely curtail the power of federal agencies. Businesses have always complained that
government regulations increase their costs, and no doubt some regulations are ill-conceived. But
a small group of conservative intellectuals have gone much further to argue that the rules that
safeguard our welfare and the orderly functioning of the market have been fashioned in a way
that’s not constitutionally legitimate. ”210 Trump’s nomination of Gorsuch reflects these beliefs
and the continued shift in the increasingly conservative trajectory the Republican Party.
Trump, D. (2017, January 31). “Full Transcript and Video: Trump Picks Neil Gorsuch for Supreme Court.” ​The
New York Times​.
209
BBC. (2017, January 30). “Trump: Executive Order Signed on Business Regulations.” ​British Broadcasting
Corporation​.
210
Bazelon, E.; Posner, E. (2017, April 1). “The Government Gorsuch Wants to Undo.” ​The New York Times​.
208
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Chapter Four: Analysis
The central question of this paper is one that grapples with the rise in tandem polarization
in both Supreme Court nominees and Congress. The answer, as illustrated by the case studies,
shows that the answer is more nuanced than originally thought. FDR’s policies brought about a
major shift in American politics, they were an earthquake that shaped the American political
parties and government for decades to come. What has been shown is that President have
preferences, but above all, parties have preferences. Presidents are the result of their parties.
Presidents come from a nomination process, and their ideologies reflect the ideologies of their
respective party.
Since FDR there has been an increase in Senate polarization, which has to do with the
party realignment that was a result of the FDR Court-packing plan, his New Deal, and the
constitutional revolution of 1937. The modern Republican party was born out of opposition to
FDR and Southern Democrats switched their allegiance to the Republican party, since they did
not approve of New Deal policies and the death of Liberty of Contract. It took a few decades for
the new Republican party to become cohesive, but while they were becoming cohesive, they
were becoming more and more conservative. At the same time, the Democratic party was
shifting, albeit, not as much as the Republican party. The modern Democratic ideology follows
FDR New Deal ideology, ideology that dominates the norms of the Court. Because the parties
were becoming increasingly more polarized, naturally, the Senate was becoming more polarized,
since the Senate is made up of Republicans and Democrats. This is illustrated on the following
page:
Kaufman 89
Since Presidents are the product of their parties and Presidents nominate Supreme Court Justices,
naturally, the polarization of the nominees increased over time, as shown by this graph:
The constitutional revolution of 1937 was the point where everything changed. Because
of FDR’s desire to implement his New Deal and the Court’s eventual acceptance of it (and thus,
forcing the Court to reject the Liberty of Contract doctrine they had subscribed to), the American
political structure was irreversibly changed. The modern Republican party, born out of a
rejection of FDR’s ideologies, has become increasingly more conservative in an attempt to return
the government to a time where regulations did not have such a large amount of power. The
modern Republican party wants a limited government, and that ideology is reflected in their
Supreme Court nominations. On the other hand, the Democratic party has had no reason to
become more liberal since their ideology rules the Court.
Kaufman 90
Post-FDR a Republican President cannot blatantly state that he desires a return to the
Liberty of Contract era. For one, Liberty of Contract is dead. To do so would be to state that he
was adverse to minimum wage laws, working conditions, working hours, labor laws, and much
more. What a Republican President can state is that he is against government regulations, and
can take actions to nominate justices who believe that the role of the Court is simply to interpret
and the role of the legislature is that of limited government. As found in the research, Republican
Presidents will often use phrases such as strict constructionists, or that he is looking for justices
to simply interpret the constitution, which is what the Court did before 1937. In ​Lochner​ the
Court ruled that since there is a Liberty of Contract, it is up to businesses to provide their own
regulations; the government cannot interfere in the actions of businesses. A Democratic
President will look for justices that say that while there should be a free-market economy, it is in
the interest of the government to regulate business actions to ensure the wellbeing of the
workers. Since 1937, each conservative nominee has become increasingly more conservative and
expressed desires to limit the actions of government more and more and sees the role of the
Court as on of limited interference. In fact, Trump’s nominee, Neil Gorsuch, supports a return to
a time where government did not regulate the actions of businesses.211 Since the nomination of
Thomas there has not been a Supreme Court nominee by a Republican President this
conservative, and the trend seems to continue to show a desire to return to a time of limited
government regulations and conservative norms of the Court.
What has become painfully clear is that Presidents are the products of their parties, and
parties and Presidents have preferences and nominate justices who reflect those preferences.
211
Bazelon, E.; Posner, E. (2017, April 1). “The Government Gorsuch Wants to Undo.” ​The New York Times​.
Kaufman 91
Republican Presidents have, increasingly over time, nominated more conservative justices to the
bench in the hopes of limiting regulations imposed on businesses and private actions. For
Democratic Presidents, they are still nominating liberal justices to the bench, they are simply
looking to maintain the norms that already exist on the Court. This tandem polarization is
occurring because of the party polarization, and that is simply being reflected in Supreme Court
nominees. As long as polarization is occurring in the Senate, there will be polarization in
Supreme Court nominations. A desire to go reduce the role of government, like before FDR, is
the cause of this polarization.
Kaufman 92
Chapter Five: Conclusion
The switch in time that saved nine was a critical juncture. It triggered a change in the
Court, with it being packed with liberal justices, and a constant fight by conservatives to reverse
the trend. For over sixty years conservatives have been trying to return to laissez-faire economic
policies that they would like to see the Court uphold.
The death of Liberty of Contract caused an earthquake that forced both the Republican
and Democratic parties to realign, although it did take time. Southern Democrats moved to the
Republican party and Northern Republicans re-aligned themselves with the Democrats. At the
same time this shift in the parties there began an increase in polarization in the Senate. The
increase of polarization in the Senate makes sense, given the strong ideological differences that
formed between the two major parties. Since Presidents are the result of their respective political
parties, the actions of the President become more polarized. This is best illustrated in Supreme
Court nominations. Supreme Court nominations have become more polarized because the parties
that the Presidents come from have become more polarized, and Presidents nominate Supreme
Court justices.
The Republican party desires a return to a time where limited government was the norm.
The last time this ideology was the norm was before 1937. The ideology of the Democratic party
became the norm after the constitutional revolution, which is why there is no need for
Democratic Presidents to nominate increasingly radical liberal justices to the bench. The Judicial
Branch is a great way to exert influence over normative ideology since the Supreme Court is
seen as the final arbiter in any constitutional question. Since the Republican party desires to limit
the role of government it is only natural that they would look for justices who believe that the
Kaufman 93
role of government should be limited and their place on the court is to simply call balls and
strikes, as illustrated by the aforementioned case studies.
The death of Liberty of Contract undoubtedly played a major role in the increased tandem
polarization seen in the later half of the twentieth century and the beginning of the twenty-first
century. The question that remains to be seen is if the Republican party will be able to swing the
norms of the court back to an era of limited government. In any event, the effect of FDR and the
constitutional revolution of 1937 changed everything in the American political system and it is
best illustrated through Supreme Court nominations. Presidents want to leave a legacy and the
best way to leave a legacy is to nominate Supreme Court justices. Presidents may only have eight
years in power but the ideology of one justice can last a lifetime and has the power to bring about
monumental change.
Kaufman 94
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Acknowledgments
First and foremost I would like to thank my parents, Jennifer and Richard Kaufman, for their
endless support, encouragement, and for gifting me a love of learning. I owe you two so, so
much. To my brother, Ben, for being my best friend.
To my advisors Brian Harward and Angela Keysor for their constant support and advice.
To the Sisters of Mu Chapter of Kappa Alpha Theta — thank you for believing in me, loving me,
and encouraging me to be the best version of myself. I would not be the person I am today
without each and every one of you. I will never be able to fully express my gratitude.
To Brianna Martig, for being the one friend who actually understood my topic, for always being
willing to hear out an idea, and never being more than a facetime or text away.
To Lindsey Kelley, Sara Von Dolln, Margo Birol, Shoshana Robbins, Leah Franzluebbers,
Jocelyne Serafin, Elizabeth Schafer, Tess Bracken, and Quintin Peacock; thank you for
everything. To thank you individually would take a lifetime. I love you all.