Elections Have Consequences

By Kyle Smith

Friday, June 24, 2022

 

Republicans have won only eight of the last 14 presidential elections (and two of those presidents did not win the popular vote), so the presidency has seemed like more or less a toss-up since the debacle of the Lyndon Johnson presidency. However, luck simply fell in favor of the Republicans; from the election of Richard Nixon through to the start of the Bill Clinton era, Republicans have seated ten consecutive justices. (There were four by Nixon, one by Ford, three by Reagan, and two by George H. W. Bush. Jimmy Carter is the only president in my lifetime who was not able to fill a Supreme Court vacancy. Donald Trump served only one term, yet got three seats.)

 

The point is, as a matter of Supreme Court dynamics, Roe never should have lasted as long as it did. Even if you date the rise of the pro-life movement to the election of Ronald Reagan as president (just a few years after he had signed a very permissive abortion law as governor of California), Republican presidents (all of whom campaigned as pro-life stalwarts) have chosen ten of the last 14 justices (not counting Ketanji Brown Jackson, who has yet to be seated) and five of the last seven. There should have been a majority to overturn Roe many years ago.

 

The only reason Roe lasted this long was that Republican presidents seated many justices who turned out to be either reliably liberal or at least liberal on the things that are most important to liberals. (The last Democrat-picked justice who could be described as conservative was Byron White, whom John F. Kennedy nominated.) For this reason, Democrats started to think, not without good reason, that the Supreme Court was functionally a moderately liberal super-legislature that would almost always cut through the failure of Democrats to persuade voters to make the changes they wanted at the times they wanted them and come through with the proper liberal decision (albeit not in Bush v. Gore).

 

But that isn’t the way the Supreme Court is supposed to work. Far from being institutionally liberal, it’s supposed to be institutionally conservative, i.e., it’s supposed to apply the Constitution. We appear to be at the start of a bold new era in which the Left of this country will have to recognize the Constitution and work from there.