control of the Supreme Court functions as a somewhat delayed reward for winning ideological battles at the presidential level, and then as a check on the next ideological coalition as it’s taking power.
.. Thus judicial appointees of the pre-New Deal era restrained Roosevelt’s liberalism for a time, and the judicial appointees from liberalism’s New Deal-Great Society heyday continued to advance liberal causes even as the Democratic coalition fell apart.
.. it was Souter who was the real outlier, Souter who really prevented the long era of Republican appointees from putting restraints on social liberalism, Souter who made today’s judicial battles seem more existential to the right than to the left.
.. Souter was sold to George H. W. Bush by his chief of staff, John Sununu, and the moderate-to-liberal New Hampshire Republican Warren Rudman as an easy confirmation because he lacked a paper trail.
.. Souter spent a brief time voting with the conservatives, then cast one of the crucial votes to uphold Roe, then swiftly evolved into as reliable a liberal as Bill Clinton or Barack Obama could have ever hoped to appoint … and then, as the by-then-inevitable coup de grâce, retired under Obama, allowing Sonia Sotomayor to take his place.
.. Had Souter simply voted like a typical Republican appointee — not in lock step with Antonin Scalia, but as an institutionalist, incrementalist conservative, in line with the current chief justice, John Roberts — then it’s likely that Roe v. Wade would have been mostly overturned in the 1990s, returning much of abortion law to the states, and that the gay rights movement would have subsequently advanced through referendums and legislation rather than a sweeping constitutionalization of cultural debate.
.. This, in turn, would have dramatically lowered the stakes of judicial politics for many Republican voters