What is a Normal US Supreme Court?

The left suffered a few critical blows this week at the hands of the US Supreme Court and unsurprisingly, they have begun to whine in earnest. Following a brief speech by the president regarding the landmark decision to end affirmative action, a reporter pitched a softball to Mr. Biden, wondering if the current judicial body is a “rogue court?” After an uncomfortable pause, the president answered, “This is not a normal court.”

It was an odd exchange to be sure. It’s as if he was asked his favorite flavor of ice cream and the president answered, “My favorite flavor is cold.”  Thus we are left to discern the meaning of “normal.” Was it about the work of the court – its output and decisions — or was it that this particular group is conservative and that is not normal?

One might surmise it is the latter because no two courts have been the same concerning output. Each court writes its own story painted by the decisions that reflect that time in American history. There have been so-called liberal (or progressive-leaning) as well as conservative courts throughout the history of the United States. Still, if one uses the conventional definition of normal as more frequent or typical, Mr. Biden is in error.

How so?

A brief review of US Supreme Court history reveals the court’s ideological leanings generally reflect those who nominate the justices. Since presidents make the initial selection and the people elect the commander in chief – the high court’s makeup most often mirrors the American body politic. Simply put, one must win presidential elections if one desires a more progressive court.

A deep dive study* into the composition of past Supreme Courts elucidates this assertion. Most often, US presidents appoint like-minded justices, though there are instances when a justice goes rogue – Associate Justice David Souter, for example. Nominated by 41, Republican President George H. W. Bush, Souter – who eventually resigned from the most significant judicial body in the land – definitely marched to the beat of a different drummer.

In Planned Parenthood v. Casey, which prolonged Roe v. Wade until last year, Souter voted with the moderate wing of the court. Then in 2000, the New Hampshire-born associate justice voted in the minority to keep counting the famed “chads.” Still, Souter is an exception to the rule.

An examination of those who have served on the Court shows the longer justices sit on the bench, the more likely they are to deviate from the presidents who appointed them. But as a rule, presidents can extend partisan policy goals past their terms in office by carefully selecting Supreme Court justices. There is serendipity involved because presidents don’t receive an allotment of nominations; the opportunity must present itself either by a justice dying or, more rarely, resigning their august perch on SCOTUS.

Supreme Court Golden Rule: He Who Appoints Wins

It should come as no surprise that justices tend to adhere to the political philosophy of those who nominate them. Simple math shows more Republican presidents equal more conservative judges, and more Democratic presidents equals more progressive justices.


(Photo by Alex Wong/Getty Images)

Liberty Nation calculated that from the turn of the 20th century, there have been 13 Republican presidents and nine Democrats. But this only tells part of the story because one must then calculate their years in office. Keep in mind the anomaly of Franklin Roosevelt, who served a (rounded down) 12 years in office and succeeded, together with a heavily Democratic Congress, in changing the number of sitting members from seven to nine. Nevertheless, this calculation reveals Republican presidents held the office for 64 years and Democratic presidents for 58 years since 1900. Now for the payoff: Our statistics reveal Republicans made 39 Supreme Court appointments, while 25 were nominated to sit on the bench by Democrats.

This is evidence of the old adage that elections have consequences. If we consider that sitting justices serve lifetime appointments, one can understand the Democratic frustration with the court. But they must recognize that this is caused by their inability to win the presidency often enough.

This leads one to the conclusion that Joe Biden is factually wrong in stating that this US Supreme Court is not normal because the facts show it is – and this has been the norm for the last 123 years. Of course, there is yet another meaning of normal that we have not explored– that being that this particular US Supreme Court has overturned two landmark decisions and delivered a blow to the Biden agenda.  If this is the reason Mr. Biden does not find it normal, then conservatives might happily find themselves in the unusual position of agreeing with the president.

* See Segal, Timpone, and Howard study here.

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