Surrendered Court Seats

In the final decades of the 20th century, liberals and conservatives each had their own problem that kept their preferred judges from dominating the Supreme Court.

For conservatives, it was the unreliability of the justices appointed by Republican presidents. Some turned into relative moderates (Sandra Day O’Connor and Anthony Kennedy), while others drifted further left (David Souter, John Paul Stevens and Harry Blackmun).

For liberals, the problem was the mishandling of Supreme Court transitions, through the occasional surrendering of a seat so that a Republican president could fill it.

In 1968, the last year of Lyndon Johnson’s presidency, he appointed a personal friend to replace the departing chief justice — and when the nomination floundered on ethical grounds, the seat remained available for the next president, Richard Nixon, to fill. Later, two other liberal justices — Hugo Black, in 1971, and Thurgood Marshall, in 1991 — retired under Republican presidents and were each replaced by a conservative justice. Marshall’s replacement, Clarence Thomas, is still on the court today.

If you want to understand why conservatives have come to dominate the court in the early 21st century, it’s worth keeping in mind this history. In the simplest terms, conservatives have largely solved their 20th-century problem: Republican presidents now nominate only deeply conservative justices. Liberals, on the other hand, have not solved their problem.

The death of Ruth Bader Ginsburg — like Marshall, a civil rights giant, who demanded that the United States live up to its ideals — has created the fourth time in the last six decades that liberals may turn over a seat to conservatives. Aware of this possibility, some legal scholars and writers pleaded with Ginsburg to retire while Barack Obama was president and Democrats still controlled the Senate, but she wanted to remain on the court.