The Supreme Court’s birthright citizenship decision continued a pattern of conservative disappointment with Republican-appointed justices many hoped would end with President Donald Trump’s nominees.
But it completed a Supreme Court term that was a mixed bag for Trump and found conservatives in a familiar place: disappointed in the court’s rulings, despite a seemingly durable 6-3 conservative majority and especially with the votes of justices nominated by Republican presidents.
Recent decisions have also raised the question of whether Trump could actually afford the retirement of Justices Samuel Alito or Clarence Thomas, who have been more conservative — and often more receptive to his administration’s legal arguments — than his own nominees.
Over the years, Republican-appointed justices have provided critical votes upholding abortion as a constitutional right, protecting Obamacare, expanding the government’s ability to take private property through eminent domain, establishing a right to same-sex marriage, and otherwise dealing major blows to conservatives.
Republican-appointed justices such as William Brennan, Harry Blackmun, John Paul Stevens, and David Souter have even outright joined the liberal bloc of the Supreme Court.
Others, such as Sandra Day O’Connor, Anthony Kennedy, and current Chief Justice John Roberts, have been more conservative but have also been a key swing vote delivering significant liberal victories.
This is despite the fact that, starting with Ronald Reagan, Republican presidents have made a concerted effort to build a reliable conservative majority on the high court. Every four years, GOP presidential candidates promise to nominate conservative justices and lower-court judges.
Republican presidents dating back to Dwight Eisenhower and Richard Nixon have lamented how their Supreme Court picks turned out.
Only once has a Democratic appointee to the Supreme Court migrated to the conservative bloc during their tenure: Byron White, who was nominated by John F. Kennedy in 1962.
Senate Democrats allowed Antonin Scalia, long viewed as the model conservative jurist, to be confirmed unanimously in 1986. They put up a bit more resistance to William Rehnquist’s promotion to chief justice, but he, too, was comfortably confirmed by the Republican-controlled Senate.
Next year, Democrats controlled the Senate and rejected conservative Robert Bork’s nomination. Joe Biden was chairman of the Senate Judiciary Committee at the time. Reagan’s third choice, Anthony Kennedy, was eventually confirmed. George H.W. Bush’s more liberal nominee, David Souter, sailed through the Senate while conservative Clarence Thomas faced a Bork-like battle and was narrowly approved.
After nearly a dozen years of Republican presidents picking justices, the Supreme Court in 1992 heard a case conservatives hoped and liberals feared would overturn Roe v. Wade. Senate Democrats had worried that Thomas would be the pivotal fifth anti-Roe vote. Instead, Kennedy authored Planned Parenthood v. Casey, upholding the core holding of Roe.
Thirty years later, the Supreme Court majority assembled by Trump with the assistance of then-Senate Majority Leader Mitch McConnell (R-KY) was built differently. All three Trump-appointed justices voted to overturn Roe in Dobbs v. Jackson Women’s Health Organization. Trump had made specific commitments to nominate conservatives during the 2016 campaign and prioritized toughness.
But the groundwork was laid pre-Trump. Senate Republicans revolted against George W. Bush’s nomination of Harriet Miers, fearing she might be neither conservative nor rigorous enough. Miers was withdrawn and replaced with Alito, who later authored Dobbs and anchored the Trump-era conservative majority. Republicans began to more carefully vet their prospective nominees for stealth liberalism.
The McConnell-led Senate GOP kept Scalia’s seat open for months after his 2016 death, refusing to allow so much as a hearing on Barack Obama’s selection of Merrick Garland. Trump got to choose Scalia’s replacement, not Obama.
But the Republican base is more result-oriented than the conservative legal networks from which the current conservative majority is drawn. Trump is even more results-oriented and was especially outraged when the court struck down his tariffs earlier this year. Conservative policy goals aren’t always consistent with an originalist interpretation of the Constitution, and sometimes legal conservatives disagree among themselves (as do political conservatives in the MAGA age).
Roberts, as chief justice, has been conscious of protecting the court’s reputation from liberal perceptions and increasingly vocal Democratic arguments that it has become a partisan institution thanks to GOP-appointed justices.
This has led to further disappointments for both the Trump White House and movement conservatives, though there have been numerous victories as well. Progressives have far more reason to be angry at the court, which they seek to undermine, delegitimize, and pack with liberal justices. Democrats claim the Supreme Court is in Trump’s pocket.
TRUMP ADMINISTRATION FACES TOUGH QUESTIONS ON BIRTHRIGHT CITIZENSHIP AT SUPREME COURT
But the birthright citizenship case highlights that conservative disaffection with the court isn’t over. Justice Amy Coney Barrett bears the brunt of the criticism, though not even Justice Neil Gorsuch, the only Trump-nominated dissenter, appeared ready to disqualify the children of illegal immigrants from birthright citizenship.
Trump is on the outs with the Federalist Society, an important conservative legal network that helped him build the current court majority, and Republican lawmakers are likely to push a constitutional amendment to reverse the birthright citizenship decision.
