The current conservative supermajority of the U.S. Supreme Court, which recently banned affirmative action and last year overturned the Roe v. Wade protection for abortion rights, owes its existence to significant political factors, historic circumstances, and unique opportunities that have benefited Republicans in the postwar era.
The foundation: The longest-serving member of the current court, Clarence Thomas, was confirmed in 1991 during a time when Republicans won the popular vote for president in seven of the previous ten elections.
* Two Republicans who lost the popular vote reached the Oval Office by prevailing in the Electoral College. These two, George W. Bush and Donald Trump, would eventually appoint the five justices who, with Thomas, make up the current 6-3 conservative supermajority.
* While the presidency has swung between the two parties since World War II, only Republican presidents have been able to appoint and confirm a chief justice. Democratic presidents have only made five of the 20 confirmed appointments to the court in the 54 years since Nixon first took office, while Republican presidents have made 15.
The shift to conservative: The current court’s conservative majority is often seen as a Federalist Society majority, a group associated with six conservative members of the Supreme Court known for promoting candidates for the bench and supporting conservative Republican candidates for presidency.
* The Federalist Society was founded in 1982 with the idea that federal judges were arrogating too much power to themselves and interpreting the Constitution to accommodate their own policy preferences.
Who said what: The highly partisan battle over Reagan appointee Robert Bork in 1987 soured the nomination process and set the stage for appointing justices like Clarence Thomas who would more reliably carry conservative stances.
* While nominated under controversy, the Senate confirmed Thomas’s nomination with votes from 11 Democrats who were unwilling to oppose him.
* The first major breakthrough came in 2005 when President George W. Bush nominated John Roberts, who was confirmed in place of the retiring chief justice, William Rehnquist. Samuel Alito was later confirmed too, raising the conservative majority.
Judgements and their impacts: The recent decision overturning the Roe v. Wade protection for abortion rights and banning affirmative action have brought attention to the court’s significant swing to conservatism.
* The decision was signed by Chief Justice John Roberts, who in his nomination hearings had likened the court’s role to an “umpire calling balls and strikes.”
* Samuel Alito wrote the decision in the case that overturned Roe.
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