Recently, Ron DeSantis, the Governor of Florida and GOP presidential candidate, offered a mild criticism of President Trump's three Supreme Court nominees. "I respect the three [Trump] appointees," DeSantis said, "but none of those three are at the same level of Justice Thomas and Justice Alito." DeSantis is not wrong. Consistently, Justices Brett Kavanaugh, Amy Coney Barrett, and to a lesser extent Neil Gorsuch, have voted to the left of Justices Clarence Thomas and Samuel Alito. Today, critics assail this Supreme Court as the most conservative bench in modern history. True enough. But it could have been far, far worse for progressives if President Trump had actually nominated Justices in the mold of Justices Scalia, Thomas, and Alito.
Look past the string of headline-grabbing conservative victories concerning abortion, affirmative action, the religion clauses, the Second Amendment, and so on. Rather, count up the 5-4 cases on the merits docket that swing left, the rejection of applications on the emergency docket brought by conservative litigants, and the denials of certiorari petitions that could have moved the law to the right. These three-dozen cases are all progressive victories snatched from the jaws of conservative defeat. On balance, progressives should be grateful for President Trump's not-so-conservative SCOTUS picks.
