Supreme Court Nominations at the Bar of Political Conflict: The Strange and Uncertain Career of the Liberal Consensus in Law

Donald Alexander Downs

doi:10.1017/lsi.2021.5

Abstract

Nominations to the US Supreme Court have become increasingly important and contentious in America politics in recent decades. Reasons include the growing significance of constitutional law to the prospects of political power, accompanied by historical developments in the relative power of the competing party coalitions that have placed even more focus on the composition of the Court. Meanwhile, partisan conflict and stalemate have grown in the party systems and among We the People. InThe Long Reach of the Sixties, Laura Kalman explores how the nomination struggles of Presidents Lyndon Johnson and Richard Nixon set the stage for the contemporary conflict besetting nominations and American politics more generally. Building on Kalman’s book, this review essay discusses the political and jurisprudential causes and implications of this conflict, with an eye toward what might lie ahead.

Highlights

Nominations to the US Supreme Court have become increasingly important and contentious in America politics in recent decades
As the US Supreme Court wrote in a famous free speech case regarding protest against the Vietnam War and the draft, “[t]hat the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength”
Writing in defense of the foreign policy consensus that emerged after the Second World War and that generally prevailed until the Vietnam War era, Arthur Schlesinger Jr. (1949, quoted in Lind, 2020, vii) issued a warning that echoes political theory throughout the ages: “The problem of classes is this: Class conflict is essential if freedom is to be preserved, because it is the only barrier against class domination