SCOTUS for law students: President George H.W. Bush’s Supreme Court legacy

Shortly before his death in 1826, President John Adams was quoted as saying, “My gift of John Marshall to the people of the United States was the proudest act of my life.” Adams was one of the earliest exponents of the view that nominations to the Supreme Court form a very important part of any president’s legacy.

Consider the legacy of President George H.W. Bush. Although he served only one four-year-term in the Oval Office, Bush, who died on November 30, had a profound impact on the Supreme Court. He appointed two justices, each of whom made a significant difference in the direction of the Supreme Court and the shape of constitutional law, and a solicitor general who weighed in strongly for the federal government on several controversial issues.

Bush’s first nominee, Justice David Souter, served for 19 years. He replaced Justice William Brennan in 1990 and was replaced by Justice Sonia Sotomayor in 2009. Souter served as a moderating influence on an increasingly conservative court.

His second nominee, Justice Clarence Thomas, replaced Justice Thurgood Marshall in 1991 and continues on the court after 27 years. He has consistently been one of the most conservative members of the court.

There is also a third aspect of the Bush legacy for the Supreme Court, the performance of his Department of Justice in the high court under Solicitor General Kenneth Starr. Starr served as solicitor general from May 1989 to January 1993, spanning most of Bush’s tenure. Among many cases, Starr argued to defend a federal law against flag-burning, to move the federal courts out of supervising school desegregation and to downgrade abortion from a fundamental right.

To examine the Bush legacy at the Supreme Court, let us take each of these in more detail.

When Brennan suffered a minor stroke and decided suddenly to leave the court in July 1990, Bush wasted no time. He announced his nomination of Souter just three days later. Souter sat very briefly on the U.S. Court of Appeals for the 1st Circuit after serving as a New Hampshire Supreme Court justice, state court judge and former state attorney general. He was little known outside New Hampshire, but Bush’s chief of staff at the time was John Sununu, a former New Hampshire governor who had named Souter to the state court. Sununu and Souter’s close friend, Republican Sen. Warren Rudman of New Hampshire, pushed for the nomination, and Bush agreed. Sununu even let the word out that the nomination would be a “home run for conservatives.”

Souter’s tenure proved disappointing to conservatives, but the reasons why reveal a split of authority over what it means to be a  judicial conservative. When Bush announced the nomination at the White House, he said Souter was committed to “interpreting, not making the law” and “recognizes the proper role of judges in upholding the democratic choices of the people through their elected representatives.”

Admirers of Souter’s tenure on the Supreme Court say that brand of traditional conservative judging is precisely what Souter practiced: respecting precedent, deferring to the choices made by Congress, and trying to discern the meaning of constitutional provisions in light of both their history and interpretation by prior justices. This approach led him to vote to uphold the right to abortion, to resist efforts to chip away at the separation of church and state, and to push back against the court’s curtailing the power of Congress and shifting authority to the states.

Practitioners of the more modern brand of conservatism practiced by President Ronald Reagan and his allies were disappointed, however, because they hoped Souter would vote to overturn decisions of the past with which they disagreed, like Roe v. Wade. They wanted Bush to nominate a justice in the mold of Justice Antonin Scalia, who joined the court four years before Souter, or Judge Robert Bork, the conservative judicial thinker whose nomination was defeated by the Senate in 1987.

So although Souter was arguably true to the judicial view he had long held, he became and remains the symbol for conservatives of poorly chosen Supreme Court nominees. “No more Souters” became a battle cry when subsequent vacancies occurred on the court.

Souter’s influence has continued, although at a lower rung on the judicial ladder. Since leaving the Supreme Court he has continued to hear cases regularly on the 1st Circuit in Boston. In that capacity, he has written more than 100 decisions for three-judge panels. He has maintained his view of the limited role of the federal courts and the importance of respecting precedent.

A year later, when Marshall retired in 1991, Bush again moved with great speed to select his nominee. Thomas was a judge on the U.S. Court of Appeals for the District of Columbia Circuit, having been nominated less than two years earlier by Bush. He had previously served as chairman of the Equal Employment Opportunity Commission and assistant secretary in the Department of Education. Thomas was championed by Republican Sen. John Danforth of Missouri, for whom he worked both in Missouri as an assistant state attorney general and in Washington as a Senate legislative aide. He was a finalist for the Supreme Court a year earlier when Souter was chosen but had gained another year of judicial experience by the time Marshall retired.

Approval of the Thomas nomination was a close call. The Senate confirmed Thomas by a very narrow 52-48 vote after a lawyer who had worked for Thomas, Anita Hill, accused him of sexual harassment, forcing a second round of hearings in the Senate Judiciary Committee.

Thomas has been a strong and important conservative influence on the Supreme Court. Although he functioned in the shadow of Scalia for many years, he has consistently left his own mark in concurring and dissenting opinions. Thomas has urged the Supreme Court to abandon a number of long-held constitutional doctrines. He has urged the court to curtail the power of Congress to regulate economic activity that occurs within a state but has a significant impact on interstate commerce. He has also said the court should scrap the dormant commerce clause, the doctrine that says that because Congress regulates interstate commerce, states can’t interfere with such commerce. He has voted consistently to overrule the right to abortion, opposed the right to same-sex marriage, and advocated for Second Amendment gun rights even before Scalia espoused that view. With the retirement of Justice Anthony Kennedy, Thomas is now the senior associate justice based on years of service.

For conservatives upset with Bush’s choice of Souter, the nomination of Thomas was a solid win. And this remains true after the death of Scalia in 2016. Thomas airs his own take on cases frequently; in each of the last four Supreme Court terms, Thomas has written more total opinions – majorities, concurrences and dissents – than any other justice. His conservative views, even on a conservative court, sometimes move him beyond the positions of his colleagues; in three of the last five terms, Thomas was in the court’s majority less frequently than any justice.

Thomas has also extended his influence through the success of his former law clerks. According to an Associated Press report in August, 22 former Thomas clerks have been appointed to prominent positions in the administration of President Donald Trump. This includes four who now sit on federal appeals courts. A fifth has been nominated to an appellate judgeship. The total represents about 20 percent of those who have clerked for Thomas.

A final measure of the Bush legacy is to look back on Kenneth Starr’s tenure as solicitor general, the head of the Justice Department office that handles the federal government’s cases in the Supreme Court.

Starr shared a conservative view that the Supreme Court should be less at the center of major questions of social policy and should leave more decision-making to the president and Congress. As solicitor general, he filed a friend-of-the-court brief for the Bush administration in the 1992 case Planned Parenthood of Southeastern Pennsylvania v. Casey, urging the court to declare that abortion was no longer a fundamental right and that the government had an interest in protecting the fetus throughout a pregnancy. He also participated in the oral argument. The court ruled 5-4 to uphold the right to abortion, although by a 7-2 vote the justices changed the constitutional standard for analyzing abortion regulations. Starr also represented the Bush administration as a friend of the court in two cases seeking to require that federal judges relinquish control of school districts that were under desegregation orders. The court agreed that judges should give up school supervision if some hallmarks of progress were apparent.

In 1990, Starr handled the unsuccessful defense of an amended federal law that punished the burning of the American flag. The court struck down the law by a 5-4 vote. And he argued as a friend of the court for the Bush administration urging the Supreme Court to permit prayers at high school graduations. In Lee v. Weisman in 1992, the court voted 5-4 to invalidate the practice of graduation prayer, finding it coercive in violation of the First Amendment’s establishment clause.

The Bush legacy for the Supreme Court, then, is mixed. His appointment of justices yielded one influential moderate, Souter, and one powerful conservative, Thomas. His solicitor general, Starr, did his best with conservative causes on the Supreme Court’s docket.

Starr himself would later observe that the goal of reducing the Supreme Court’s influence on American life may have been only partially successful. In his book “First Among Equals: The Supreme Court in American Life,” published in 2002, Starr observed about the high court, “It remains very much in business in the most divisive areas of our national life.”