The 6-3 majority was solidified in former President Donald Trump’s term, but its roots go back to the Bushes and the political circumstances of 1991 and 2005.
One year after they overturned the Roe v. Wade protection for abortion rights, the same six members of the U.S. Supreme Court have banned affirmative action — the explicit use of race as a factor in college admissions.
Designed to address centuries of inequality in education, affirmative action had been a feature of the past several decades and was upheld by multiple Supreme Court rulings over that period. Now, the court has denounced the practice as a form of racial discrimination that violates the 14th Amendment, which was itself enacted to enfranchise the formerly enslaved.
This week’s affirmative action ruling was nearly as notable a departure from precedent as last year’s spiking of Roe, which had been the law of the land for half a century before the court called it «egregiously wrong.»
It was a rare combination of two such far-reaching reversals, and it was accompanied by other rulings on sensitive issues by the same six justices. The combined effect has focused national attention on the court’s dramatic swing to the right.
The most immediate explanation for the earthquake is the weight of three conservative justices appointed by former President Donald Trump and confirmed by a Republican-controlled Senate during his term. Trump was able to fill more seats in a single term than any president since Franklin Roosevelt.
But that is far from the whole story.
The current supermajority on the court exists because of major political factors that have favored Republicans in the postwar era and historic circumstances that were windows of opportunity for all six conservatives to be appointed and confirmed.The Electoral College and the fortune of timing
The longest-serving member of the current court, Clarence Thomas, was confirmed in 1991. At the time, Republicans had won the popular vote for president in seven of the previous ten election cycles (1952 — 1988).
But in the eight presidential elections since then, Republicans have won the popular vote only once. Two Republicans who lost the popular vote reached the Oval Office by prevailing in the Electoral College.
Those two — George W. Bush and Donald Trump — would eventually appoint the five justices who, with Thomas, make up the current 6-3 conservative supermajority.
The biggest contributor on this score was Trump’s 2016 win in the Electoral College against Hillary Clinton. George W. Bush also came to the presidency initially via the Electoral College after losing the popular vote to Al Gore in 2000. (Bush did win the popular vote in his reelection year, before he appointed any justices.)
Republicans have also had far more luck in having Supreme Court vacancies occur when they controlled the White House and a working majority in the Senate.
While the presidency itself has swung between the two parties with some regularity since World War II, with Republicans holding the office for 40 years and Democrats for 38, no Democratic president in all those decades has been able to appoint and confirm a chief justice. By contrast, four of the six Republican presidents in that same period — Dwight Eisenhower, Richard Nixon, Ronald Reagan and George W. Bush — have named a chief justice.
Overall, in the 54 years since Nixon first took office, there have been 20 confirmed appointments to the court, counting chiefs and associate justices. Republican presidents have had 15 of them, Democratic presidents just five. Centrists as an endangered species
Throughout its history the Supreme Court has made momentous political decisions, driven at times by strong ideological leanings. But it has also had a tradition of idealizing a nonpartisan consensus and seeking unanimity whenever possible. It is a tradition the current chief justice often salutes and, at least at times, seems eager to serve.
In the past, as a rule, the Senate defaulted to confirming nominees in deference to the president — even across party lines. If there was not an egregious issue or personal matter, the vote was often lopsided. Reagan appointee Antonin Scalia, a true conservative icon, was confirmed in 1986 without a dissenting vote.
Moreover, individual justices at times seemed to evolve in their views and alliances during their time on the court, sometimes frustrating the president who appointed them or elements of his party.
