How Six Justices Came to Control the Supreme Court

On February 13, 2016, Supreme Court Justice Antonin Scalia died unexpectedly at age 79.

He had been one of the Court’s most influential conservative justices for nearly three decades.

His death did more than create an empty seat. It began a chain of events that would transform the Supreme Court.

Within less than five years, Donald Trump would appoint three justices—Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. By the end of that period, six of the nine sitting justices had been appointed by Republican presidents. And the Court had acquired a durable 6–3 conservative majority.

How that happened matters.

It matters not because Republican presidents somehow lacked the constitutional authority to appoint conservative justices. They plainly had that authority.

It matters because the process became extraordinarily political—and eventually quite openly so. Candidates campaigned on the Court. Political parties described specific Supreme Court decisions they wanted reversed. Potential nominees were identified before the presidential election. A Senate majority refused even to hold a hearing for one president’s nominee, leaving a seat vacant for almost a year. Four years later, the same Senate majority moved another nominee from vacancy to confirmation in little more than five weeks, finishing just eight days before Americans voted for president. And along the way, the Senate changed one of its own rules so that a Supreme Court justice could be confirmed with a simple majority.

Every individual step was taken through constitutional or Senate procedures. But taken together, they changed both the Supreme Court and the public’s understanding of how justices get there.

February 2016: Justice Scalia Dies

Antonin Scalia died on February 13, 2016, during Barack Obama’s final year as president. The Supreme Court announced his death that day.

At the time, Republicans controlled the Senate.

The Constitution divides responsibility for filling a Supreme Court vacancy between two institutions. The president nominates. The Senate provides its “Advice and Consent.” Normally, the president selects a nominee and the Senate Judiciary Committee holds hearings before the full Senate eventually decides whether to confirm.

That is not what happened in 2016.

Scalia had been dead only hours when Senate Majority Leader Mitch McConnell announced that the vacancy should remain open until after the presidential election. McConnell’s position was straightforward: voters should effectively have a voice in determining who would appoint the next justice. He later argued on the Senate floor that the country was already in an election season and that the next president should make the choice.

That decision immediately transformed the Supreme Court vacancy into an issue in the 2016 presidential campaign.

Obama Nominates Merrick Garland

President Obama did not accept McConnell’s premise. On March 16, 2016, Obama nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to fill Scalia’s seat.

Garland was not an obvious choice designed to provoke Republicans. He was widely regarded as a relatively moderate appellate judge. The Obama White House pointed out that Republican Senator Orrin Hatch had previously described Garland as a potential “consensus nominee.”

But Garland’s judicial philosophy ultimately did not determine what happened.

Senate Republicans had already decided that no Obama nominee would receive consideration. On February 23, all Republican members of the Senate Judiciary Committee informed McConnell that they would not hold hearings on anyone Obama nominated. They stated that the vacancy should remain open until the next president took office.

And that is exactly what happened. Garland received no confirmation hearing, no Judiciary Committee vote, and no Senate confirmation vote. His nomination simply remained pending until Obama’s presidency ended.

The Senate’s own historical account now describes the episode plainly: after Republicans took control of the Senate, “the Judiciary Committee took no action” on Obama’s nomination of Garland.

This was not a finding that Merrick Garland was unqualified. The Senate never reached that question. It was a strategic decision about who should be allowed to fill the seat.

The Supreme Court Became an Explicit Campaign Issue

Something important happened during the months that followed. The identity of the next Supreme Court justice became part of the argument for electing Donald Trump. And this was not subtle.

On May 18, 2016, candidate Trump released a public list of potential Supreme Court nominees. His campaign said the list had been assembled with input from conservative and Republican leaders and represented the constitutional principles Trump intended to use when choosing justices.

That was politically significant. Voters were no longer merely being told: elect me, and someday I may appoint judges. They were being told, in advance, the kind of judges a Trump presidency intended to put on the Supreme Court.

The Republican Party was even more explicit in its 2016 party platform. It said that electing a Republican president offered the opportunity to appoint enough justices to begin reversing decisions including Roe v. Wade, Obergefell v. Hodges and the Affordable Care Act cases. The platform expressly called for restoring a “strong conservative majority” on the Supreme Court.

There is nothing hidden about the political objective in that language. Control of the Supreme Court had become an explicit electoral goal.

Republicans argued that liberal judges had engaged in judicial activism and that conservative appointments would restore the Constitution’s original meaning. Democrats argued that the Republican Senate was denying a duly elected president his opportunity to fill a vacancy and was effectively holding the seat open in hopes that a Republican would win the election.

Both sides understood what was at stake. A Supreme Court appointment is for life. Winning one election could shape constitutional law for a generation.

November 2016 Changes Everything

Donald Trump won the presidential election on November 8, 2016. The gamble by McConnell and Senate Republicans had succeeded.

The Scalia seat remained vacant. But instead of being filled by Barack Obama, it would now be filled by Donald Trump.

This is the point at which the political strategy surrounding the vacancy had a direct consequence for the composition of the Court. Had Garland been confirmed in 2016, Scalia’s seat would have passed from one of the Court’s leading conservatives to a judge nominated by a Democratic president. Instead, the seat remained open until a Republican president could fill it. The ideological balance of the Court was preserved.

Neil Gorsuch Takes the Seat

On January 31, 2017, Trump announced Neil Gorsuch as his choice for the Scalia vacancy. The nomination itself was hardly surprising—Gorsuch fit closely with the conservative legal philosophy Trump had promised during the campaign.

His confirmation, however, produced another important change.

Under Senate rules then in effect, ending a filibuster of a Supreme Court nomination required 60 votes. Republicans did not have 60 votes. Democrats opposed Gorsuch and sufficient senators voted against cloture to prevent the nomination from advancing under the existing rule.

So Senate Republicans changed the rule. Using the parliamentary procedure popularly known as the “nuclear option,” they reduced the threshold for ending debate on Supreme Court nominees from 60 votes to a simple majority. The Senate Historical Office describes precisely that sequence: Republicans changed the Supreme Court cloture threshold in 2017, clearing the way for Gorsuch and later nominees to be confirmed by narrow majorities.

Gorsuch was confirmed on April 7, 2017, by a vote of 54–45. Three Democrats joined Republicans in voting for him.

The seat that Obama had attempted to fill was now occupied by Trump’s first Supreme Court justice. And one important institutional protection requiring broader Senate agreement on Supreme Court nominees was gone. From that point forward, a party controlling both the presidency and a Senate majority could confirm a justice without support from the opposing party.

Then Justice Kennedy Retired

The next development was different. There was no death. There was no vacant seat being held through an election.

On June 27, 2018, Justice Anthony Kennedy announced that he would retire from the Supreme Court.

Kennedy had been appointed by President Ronald Reagan and was generally considered conservative. But for many years, he also occupied a pivotal position near the ideological center of the Court. On closely divided issues, Kennedy sometimes joined the Court’s conservatives. On others, he joined its liberals. He wrote the majority opinion recognizing a constitutional right to same-sex marriage in Obergefell v. Hodges. He also joined conservative majorities in important cases involving campaign finance, gun rights and other issues.

His retirement therefore created something Scalia’s death had not: an opportunity to shift the Court itself further to the right.

Trump nominated Brett Kavanaugh, a judge on the U.S. Court of Appeals for the D.C. Circuit. The confirmation became one of the most contentious Supreme Court confirmation battles in modern history. After highly publicized allegations of sexual misconduct, which Kavanaugh denied, the Judiciary Committee held additional testimony and the FBI conducted a supplemental background investigation.

The nomination ultimately survived. On October 6, 2018, the Senate confirmed Kavanaugh 50–48. The margin showed just how polarized Supreme Court confirmations had become. Only one Democrat voted for Kavanaugh. One Republican voted against the nomination, while another senator voted “present.”

Kennedy’s former seat—once occupied by the justice who frequently provided the deciding vote between the Court’s two ideological blocs—was now held by a reliably more conservative justice.

The Court had moved. But the transformation was not complete.

September 2020: Ruth Bader Ginsburg Dies

On September 18, 2020, Justice Ruth Bader Ginsburg died from complications of pancreatic cancer. She was 87 and had served on the Supreme Court for more than 27 years.

Her death came 46 days before the presidential election.

And suddenly the argument from 2016 returned. Four years earlier, McConnell and Senate Judiciary Committee Republicans had said an election-year vacancy should remain unfilled so voters could help determine which president selected the next justice.

In 2020, the presidential election was not months away. Voting had effectively begun in parts of the country. Election Day was less than seven weeks away.

But Republicans did not leave the seat open. McConnell announced that Trump’s nominee would receive a Senate vote.

Why Republicans Said 2020 Was Different

Republicans did not generally deny that their position differed from what many Americans remembered hearing in 2016. Instead, they argued that the circumstances were constitutionally and historically different.

In 2016: a Democratic president faced a Republican Senate. In 2020: a Republican president faced a Republican Senate.

McConnell argued that election-year Supreme Court nominees had historically been treated differently when the same party controlled both the presidency and the Senate. Senator Chuck Grassley, who had chaired the Judiciary Committee during the Garland episode, made the same argument.

In their view, the relevant principle was not simply: never confirm a justice during a presidential election year. It was: a Senate controlled by the party opposing the president has historically been less likely to confirm an election-year nominee, while a Senate controlled by the president’s party generally has done so.

That is an important distinction, and a fair account of the controversy should include it.

Democrats rejected that explanation. They pointed to much broader statements Republicans had made in 2016 about giving the American people a voice in choosing the next justice. They also cited statements by Senator Lindsey Graham, who had said in 2018 that if a vacancy arose during the final year of Trump’s term after the primary process had begun, he would wait until the election.

Democrats argued that Republicans had established a rule when it prevented Obama from filling a seat and abandoned that rule when it would prevent Trump from doing so.

Whichever interpretation one accepts, one fact is difficult to dispute: control of the Senate and the presidency determined how the Senate handled the two vacancies.

That is politics. And by 2020, there was little pretense that Supreme Court appointments existed outside it.

Amy Coney Barrett: 38 Days From Nomination to Confirmation

President Trump selected Amy Coney Barrett, then a judge on the U.S. Court of Appeals for the Seventh Circuit.

The timetable was extraordinary. Ginsburg died on September 18. Trump announced Barrett on September 26. Her formal nomination was submitted to the Senate on September 29. Her confirmation hearings began on October 12 and continued through October 15. On October 26, 2020, the Senate confirmed Barrett 52–48. Election Day was November 3.

The Senate had confirmed a lifetime Supreme Court justice eight days before Americans chose the next president.

No Democrat voted for Barrett. Republican Senator Susan Collins voted against confirmation. Every other Republican voting supported her. The Senate’s own daily record described it as a party-line vote except for Collins.

Those two events, placed side by side, became central to arguments that the Supreme Court confirmation process had ceased to operate according to stable institutional norms and was instead governed primarily by political power.

Republicans answered that the difference was divided government in 2016 versus unified party control in 2020. That dispute is part of the history. The result is not disputed. Garland never reached the Court. Barrett did.

Three Trump Appointments in Four Years

When Donald Trump entered office, the Supreme Court vacancy created by Scalia’s death had already existed for nearly a year. Four years later, Trump had appointed three justices.

The Senate’s official Supreme Court nomination records document all three confirmations.

Those three appointments produced the Court’s present ideological structure: six justices generally identified with the Court’s conservative bloc and three generally identified with its liberal bloc.

But even that shorthand understates what happened. Gorsuch replaced a conservative justice. Kavanaugh replaced a conservative justice who frequently served as the Court’s pivotal swing vote. Barrett replaced the Court’s most prominent liberal justice. The third appointment therefore fundamentally altered the balance of the Court.

With Barrett’s confirmation, Chief Justice John Roberts no longer necessarily occupied the Court’s ideological center. Five other conservative justices could form a majority without him.

That mattered enormously.

This Was Not Merely Politics Happening Around the Court

Judicial nominations have always involved politics. Presidents have always preferred judges whose judicial philosophies they respect. Senators have always considered ideology. Supreme Court nominations have been contentious at many points throughout American history.

It would be misleading to suggest that politics suddenly entered the process in 2016.

What changed was its degree, transparency and effectiveness.

The Senate’s own historical office says increasing ideological polarization between the parties raised the stakes of judicial nominations during the twenty-first century.

By 2016, the political objective had become explicit. The Republican Party platform did not merely promise qualified judges—it said a Republican president could create a conservative Supreme Court majority capable of reversing specific decisions. Trump did not merely tell voters that he would appoint conservative judges. He published names. His campaign made the Supreme Court part of the case for electing him.

McConnell did not simply evaluate Obama’s nominee and vote against him. The Republican-controlled Judiciary Committee announced before Obama even selected Garland that it would not hold hearings for any nominee until a new president took office.

Then, after Trump became president, Senate Republicans changed the cloture rule when the existing 60-vote requirement stood in the way of confirming Gorsuch. And in 2020, they used their majority to fill Ginsburg’s seat immediately before the presidential election.

These were not accidental developments. They were exercises of political power designed to affect the composition of the Supreme Court.

Were Any of These Actions Illegal?

That matters.

This is a story about something more complicated: how constitutional powers and Senate rules were used aggressively and strategically to determine who would control one of the three branches of the federal government.

Legal authority and institutional legitimacy are not the same question.

Elections Have Consequences. So Does Institutional Power.

There is a straightforward defense of what happened. Republicans won elections. They controlled the Senate beginning in 2015. Trump won the presidency in 2016. Republicans retained Senate control through Trump’s term. Presidents nominate Supreme Court justices. Senates decide whether to confirm them. Republicans used the constitutional power voters had given them.

That argument cannot simply be dismissed.

But neither can the opposing concern. Supreme Court justices are not elected politicians serving four- or six-year terms. They receive lifetime appointments. Their decisions can invalidate acts passed by future Congresses and signed by future presidents.

So when temporary political majorities use every procedural advantage available to secure long-term ideological control of the Court, the consequences can last for decades.

A president who served four years appointed one-third of the Supreme Court. Two of those three justices were confirmed with fewer than 55 Senate votes. One occupied a seat that had been held open throughout the final year of the previous presidency. Another was confirmed eight days before voters decided whether that president would receive another term.

Those facts do not make the resulting Court unlawful. But they help explain why millions of Americans view its composition differently from that of an institution produced merely by ordinary judicial succession.

And Then the Decisions Came

The significance of these appointments became much clearer after Barrett joined the Court. A six-justice conservative bloc no longer needed Justice Kennedy. Kennedy was gone. It no longer necessarily needed Chief Justice Roberts. Five conservative justices could form a majority without him.

The resulting Court went on to reconsider or substantially change constitutional law in areas including abortion, gun rights, affirmative action, administrative power, religious liberty, presidential immunity, campaign finance, and the authority of federal courts themselves.

Those decisions deserve separate examination—and Supremely Rogue will examine them individually. But before evaluating those decisions, Americans should understand how this particular Court came to exist.

Because the composition of a court affects the law it produces. And the process used to create that composition affects how the public perceives the institution.

The Court Became a Political Prize

Perhaps the most consequential change between Scalia’s death in 2016 and Barrett’s confirmation in 2020 was not any single justice. It was the transformation of the Supreme Court itself into an increasingly visible prize of presidential and Senate elections.

Republicans told voters that electing their candidates could create a conservative Supreme Court majority. Democrats warned voters that doing so would endanger precedents involving abortion, civil rights and other issues. Trump campaigned with lists of potential justices. Senate control determined whether one president’s nominee would even receive a hearing. The Senate changed its rules when a supermajority requirement threatened another nomination. A later vacancy was filled in the closing days of another presidential campaign.

And all sides increasingly understood a Supreme Court vacancy for what modern American politics had made it: an opportunity to influence constitutional law for a generation.

That is not a claim about hidden motives. Much of it happened publicly. The Republican Party’s own 2016 platform stated that electing a Republican president could restore a conservative majority and reverse decisions the party opposed.

The strategy succeeded.

Why This History Matters

None of this tells us that Gorsuch, Kavanaugh or Barrett should automatically be dismissed as illegitimate justices. They were nominated by a constitutionally elected president. They were confirmed by the Senate. They hold their offices legally.

Nor does this history establish that their judicial opinions are wrong. Each decision has to be examined on its own legal reasoning.

But institutional legitimacy requires us to look at more than the final paperwork.

The Supreme Court asks Americans to believe that it is fundamentally different from Congress and the presidency. That its decisions are law rather than politics. That its justices are not representatives of the political parties responsible for putting them there. That Republican-appointed and Democratic-appointed justices ultimately owe allegiance not to the politicians who selected them, but to the Constitution.

For that system to work, the public must be able to believe it.

And that becomes harder when the process of creating a Supreme Court majority looks increasingly like the process of winning control of a legislature:

• —Win the presidency.
• —Win the Senate.
• —Block the other party’s nominee when you can.
• —Fill vacancies when you can.
• —Change procedural rules when necessary.
• —Select judges whose philosophies are expected to produce particular legal outcomes.
• —Then live with the consequences for decades.

Every one of those steps may fit within the formal constitutional structure. But together they leave a question that goes beyond legality.

That is the legacy of the extraordinary four years between Antonin Scalia’s death and Amy Coney Barrett’s confirmation.

It did not merely give Donald Trump three Supreme Court appointments. It created the six-justice majority that continues to shape American constitutional law today. And it changed the way many Americans see the Supreme Court itself.

Sources

Supreme Court of the United States
Announcement of Justice Antonin Scalia’s death, February 13, 2016
Announcement of Justice Anthony Kennedy’s retirement, June 27, 2018
Announcement of Justice Ruth Bader Ginsburg’s death, September 18, 2020

United States Senate
Supreme Court Nominations, 1789–Present
Senate Historical Office, Judicial Nominations: Historical Overview
Senate Judiciary Committee nomination and hearing records
Senate roll-call votes for Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett
Judiciary Committee Republicans’ February 23, 2016 statement that no Obama Supreme Court nominee would receive a hearing

Obama White House Archives
Merrick Garland nomination, March 16, 2016
Background on Chief Judge Merrick Garland

2016 Republican Party Platform
Judiciary section discussing Supreme Court appointments, a conservative Court majority and specific decisions the party sought to reverse

Donald J. Trump 2016 Campaign
May 18, 2016 release of potential Supreme Court nominees

Statements of Senate leaders
Mitch McConnell’s 2016 statements concerning the Scalia vacancy
McConnell and Senator Chuck Grassley’s 2020 explanations distinguishing the Garland and Barrett vacancies
Democratic Judiciary Committee statements arguing that the 2020 process departed from the standard Republicans had articulated in 2016