Presidential Commission on the Supreme Court of the United States
and commentators have articulated sharply divergent accounts of why conflict over the Court has escalated in recent years. And they disagree about whether these political struggles have undermined the Court’s legitimacy.[6]
The Commission does not purport to offer a consensus history of the last decades of conflict over the Supreme Court, nor does it come to a conclusion about whether the Court has suffered a loss or crisis of legitimacy. Commissioners hold very different views on these matters. Without purporting to resolve any of those differences, this introductory Chapter offers a set of observations that provide context for President Biden’s decision to issue the April 2021 Executive Order and discusses a set of criteria by which the broader debate might be appraised.
A. Conflict Over the Court
The role the Court plays in major political and social conflicts has long made its composition and jurisprudence subjects of debate in the nation’s civic life. Throughout American history, including in recent decades, conflict over the Court has played out with varying degrees of intensity in the processes by which the President nominates and the Senate confirms new Justices. In recent decades, both Democrats and Republicans have lamented that nominees, prepared by the White House staff, have systematically sidestepped candid answers to questions about their records and judicial philosophies, although many also agree that nominees should not answer questions in ways that might be seen as pre-committing themselves to particular outcomes in future cases.
Nominations to the Court have been fiercely opposed for a range of reasons. President Woodrow Wilson’s nomination of Louis Brandeis generated aggressive opposition fueled by antisemitism.[7] President Herbert Hoover’s nomination of John J. Parker was opposed by civil rights groups and labor organizations, and was ultimately defeated at least in part because of Parker’s expressed opposition, while a candidate for Governor of North Carolina, to the participation of Black people in politics.[8] When President Lyndon Johnson nominated Judge Thurgood Marshall—a trailblazing civil rights lawyer, former federal appellate judge, and, at the time of his nomination, Solicitor General of the United States—to be the first Black member of the Court, Marshall was confronted with hostile and racist questions from segregationist Senators, and numerous Senators voted against his nomination or abstained from voting.[9] The Senate later rejected two of President Richard Nixon’s nominees—G. Harrold Carswell and Clement F. Haynsworth, Jr.—for reasons including their prior support for segregation, and also in each case because of other objections to their candidacies.[10]
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