Republicans have a problem. Since the Nixon Administration, Republican Presidents have appointed sixteen out of twenty-one Supreme Court justices. But only about a third of those sixteen nominees have been principled conservative jurists. The rest either were not very conservative in the first place or simply drifted to the left. Perhaps the most confounding selection has been Chief Justice John Roberts. In his never-ending pursuit to depoliticize the judiciary, Roberts renders these faux-Solomonic decisions based on his own sense of political compromise. His decision to save the Affordable Care Act by rewriting the law's individual mandate and Medicaid expansion was just the tip of the iceberg.
These problems with Republican appointed judges are well known, and have been the source of massive frustration on the right. Ironically enough, the current Court's two most conservative members were flukes. Justice Samuel Alito was only picked after the nomination of Harriet Miers (thankfully) flamed out. And I am confident that President George H.W. Bush would have never selected Clarence Thomas had he known how conservative the jurist would be.
President Trump was gifted a golden opportunity in his first term with three Supreme Court nominees. As Trump's second term begins, with potential vacancies on the horizon, it is not too early to assess the three nominees. But how best to measure their performance? One possible benchmark is whether they built a conservative majority on the Court. On that front, they unquestionably succeeded. Justice Antonin Scalia, the conservative lion, was replaced by another conservative, Justice Neil Gorsuch. Justice Anthony Kennedy, who swung from left to right in any given case, was replaced by a more-reliable conservative in Justice Brett Kavanaugh. And Justice Ruth Bader Ginsburg, the leader of the Court's progressive wing, was replaced by Amy Coney Barrett, who briefly served on the court of appeals after a career in academia. These three jurists have cast votes in landmark cases that have unquestionably shifted the law to the right: they voted to overrule Roe v. Wade, abandoned the dreaded Lemon test, nixed most affirmative action policies, and more.
