Pathways to the US Supreme Court: From the Arena to the Monastery

348 Pages·2013·2.38 MB·English

by  Garrison Nelson

Pathways to the US Supreme Court
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Pathways to the US Supreme Court
From the Arena to the Monastery
Garrison Nelson
with
Maggie Steakley and James Montague
PATHWAYS TO THE US SUPREME COURT
Copyright © Garrison Nelson, 2013.
Softcover reprint of the hardcover 1st edition 2013 978-1-137-33602-6
All rights reserved.
First published in 2013 by
PALGRAVE MACMILLAN®
in the United States— a division of St. Martin’s Press LLC,
175 Fifth Avenue, New York, NY 10010.
Where this book is distributed in the UK, Europe and the rest of the world,
this is by Palgrave Macmillan, a division of Macmillan Publishers Limited,
registered in England, company number 785998, of Houndmills,
Basingstoke, Hampshire RG21 6XS.
Palgrave Macmillan is the global academic imprint of the above companies
and has companies and representatives throughout the world.
Palgrave® and Macmillan® are registered trademarks in the United States,
the United Kingdom, Europe and other countries.
ISBN 978-1-349-46332-9 ISBN 978-1-137-35172-2 (eBook)
DOI 10.1057/9781137351722
Library of Congress Cataloging-in-Publication Data
Nelson, Garrison, 1942– author.
Pathways to the US Supreme Court : from the arena to the monastery /
Garrison Nelson.
pages cm
Includes bibliographical references and index.
1. United States. Supreme Court—History. 2. Constitutional history—
United States. 3. Political questions and judicial power—United States—
History. I. Title.
KF8742.N455 2013
347.73(cid:2)26—dc23 2013028871
A catalogue record of the book is available from the British Library.
Design by Newgen Knowledge Works (P) Ltd., Chennai, India.
First edition: December 2013
10 9 8 7 6 5 4 3 2 1
Contents
List of Figures vii
List of Tables i x
Acknowledgments x i
Introduction: Whither the Supreme Court? 1
1 Building Supreme Courts 7
2 The Arena and the Monastery: Four Career Paths to the
Supreme Court 4 7
3 Court Paths and Confirmation Patterns 77
4 From Consensus to Conflict, 1937–2010 113
5 How Courts Change 1 57
6 Presidential Court Changers 1 87
7 Stormy Weather Ahead 2 23
Appendix I 243
Appendix II 249
Appendix III 251
Notes 253
Bibliography 303
Index 327
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Figures
I.1 Gallup figure 4
1.1 Gallup Polls on FDR’s court-packing plan of 1937 37
1.2 N umber of proposed amendments by decade 4 3
2.1 Penultimate paths of successful Supreme Court
nominations, 1789–2012 5 5
2.2 P recourt collateral paths, 1789–1962 58
2.3 Penultimate paths to the Supreme Court 5 9
3.1 C areer paths by period, 1789–2010 1 11
4.1 F our career paths to the Supreme Court, 1937–2010 1 20
4.2 Senate confirmation voting, 1937–2010 121
4.3 Confirmation results in two eras, 1937–2010 1 21
4.4 D ays from presidential submission to Senate action, 1937–2010 1 22
4.5 P ages of Senate testimony and judiciary committee
reports, 1937–2010 1 23
4.6 Presidential party voting on contested nominations, 1968–2010 154
5.1 The battle for Justice Blackmun’s vote 181
5.2 J ustice David Souter’s interagreements with ideological factions 182
6.1 The Voteview breakdown of the 1968 vote to end debate on
the Fortas nomination for chief justice 212
6.2 P ost-1937 justices ranked by overall conservatism 2 20
7.1 P arty domination of the Supreme Court by decade, 1860s–2000s 2 26
7.2 R epublican percentages of Supreme Court seats, presidential
popular votes, and US Senate seats by decade, 1860s–2000s 2 27
7.3 Ideological overlapping in the US Senate, 1879–2012 2 31
7.4 P arty polarization in the US House and the US Senate,
1879–2012 2 31
7.5 T he Voteview chart of ideological voting, US Senate,
1879–2012 2 34
7.6 Ideological difference between support for presidential
nominees, 1976–2012 237
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Tables
1.1 Five notable temporal courts: dates of service and membership 1 3
1.2 S upport for Supreme Court reorganization, 1937 35
1.3 Court-curbing congressional proposals, 1877–2006 41
1.4 Number of proposed constitutional amendments by
decade, 1789–2009 42
2.1 Penultimate paths of successful Supreme Court nominees,
1789–2013 56
2.2 T he most controversial court ever? Assessing the 1953 Term 6 9
2.3 Successful Supreme Court nominations by precourt path
and party of president, twentieth century
Blaustein-Mersky ratings 73
3.1 Supreme Court nominations by precourt path and party of
president, 1789–1861 80
3.2 Summary table of court paths and confirmation
outcomes, 1789–1861 86
3.3 Supreme Court nominations by precourt path and party of
president, 1861–1933 9 1
3.4 Summary of court paths and confirmation outcomes, 1861–1933 97
3.5 Supreme Court nominations by precourt path and party of
president, 1933–2012 1 07
3.6 C ourt paths and confirmation outcomes, 1933–2013 1 10
4.1 C onfirmation patterns in a consensus era, 1937–1967 1 15
4.2 Confirmation patterns in a contentious era, 1968–2010 118
4.3 Summary statistics of confirmation patterns in two eras 119
4.4 J ustice Lewis Powell: the swingman? 1 33
4.5 Contested nominations by party and ideology, 1968–2010 1 52
4.6 Presidential party voting on contested nominations 154
5.1 Comparing George Washington’s and George W. Bush’s
Supreme Courts 1 61
5.2 Court T167: Voting alignments in the 2004 Term of
the US Supreme Court 1 72
5.3 Court T168: Voting alignments in the 2005 Term of
the US Supreme Court 1 73
5.4 Interagreement differences in two off/on court changes 174
5.5 Minimal impact: Chief Justice Warren Burger’s replacement by
Associate Justice Antonin Scalia, 1985–1986 1 78