Lies My Textbooks Told Me: Judging Current Supreme Court Justices

Perhaps it’s unrealistic to expect history textbooks to present and analyze events and epochs with complete objectivity. But it’s entirely reasonable to demand that they don’t actively reinforce the news media’s liberal bias when it comes to recent history and individuals who are still alive and active in shaping that history. 

Yet commonly used American history textbooks have eschewed historical analysis when discussing recent Supreme Court justices, and in its place substituted partisan political commentary.

The Culture and Media Institute (CMI), in its ongoing examination of American history textbooks, looked at textbooks’ coverage of Supreme Court nominees, from the Reagan era to the Clinton era. Textbooks chastised conservative Supreme Court justices (including justices currently sitting on the Court) for opposition to “civil rights” measures, highlighted the complaints of liberal “women’s groups” and “civil rights” groups, and mislabeled moderate justices as conservatives.

Court Battles

President Reagan appointed three justices to vacant positions on the Court, while President George H.W. Bush filled two vacant Supreme Court positions. However, one of Bush’s nominations sparked major controversy, while two of Reagan’s nominees were derailed. 

Reagan’s first two nominees for the Supreme Court, Sandra Day O’Connor and Antonin Scalia, were easily confirmed by the Senate. Reagan also successfully appointed Associate Justice William Rehnquist to the post of Chief Justice.

But Reagan’s third nominee, Robert Bork, was vehemently opposed by Senate liberals; then-Senator Ted Kennedy gave an incendiary speech portraying “Robert Bork’s America” as “a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.” Bork’s nomination to the Supreme Court was defeated after a brutal lobbying campaign against him, which even liberal New York Times columnist Joe Nocera has characterized as “character assassination.”

Reagan then nominated Douglas Ginsburg, who withdrew from consideration after he admitted he had used marijuana in the 1960’s and 1970’s. Finally, Anthony Kennedy was nominated by Reagan and confirmed by the Senate unanimously.

One of George H.W. Bush’s Supreme Court appointments also faced major controversy. Bush appointee David Souter was quickly confirmed, but when Clarence Thomas was appointed by Bush, one of his former assistants at the EEOC, Anita Hill, accused him of sexual harassment. After another long and bitter debate, Thomas was narrowly confirmed by the Senate in a 52-48 vote.

Present Clinton nominated Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court, both of whom were easily confirmed.

Scalia and Thomas are commonly recognized as conservatives. O’Connor and Kennedy are characterized as moderates and moderate conservatives. Souter and Breyer were considered to be moderate liberals, while Ginsburg was considered to be a liberal.

Textbooks Attack Conservative Justices

But American history textbooks, did not explain these nuances when talking about Supreme Court nominees. Instead, they frequently made sure to paint moderate and conservative Supreme Court nominees in a negative light.

Of the six textbooks that CMI examined, five discussed the Reagan Supreme Court appointments, while three talked about the Bush Supreme Court appointments. Only one textbook, Prentice Hall’s “A History of the United States,” mentioned Clinton’s appointments.

Of the five textbooks that discussed the Reagan appointees, three of them labeled all of Reagan’s appointees as conservatives. Three textbooks mentioned the Bork battles, all of which portrayed the battle as a simple ideological fight. Two textbooks discussed the Thomas hearings, and both of those textbooks attacked Thomas. The one textbook that discussed Clinton’s Supreme Court nominations painted Clinton’s nominees in a favorable manner.

Conservative Supreme Court nominees and justices were labeled as such, and attacks on them by “women’s groups” were highlighted. Clarence Thomas came in for special ridicule, and was described by one textbook as having “neither proven experience nor proven judicial talent.” 

“A History of the United States” was the only textbook to talk about the nominees of Reagan, Bush, and Clinton. The textbook analyzed Reagan’s Supreme Court justice nominees favorably, praising O’Connor, Scalia, Rehnquist, and Kennedy. However, “A History of the United States” lambasted Clarence Thomas, portraying him as an unworthy replacement to Thurgood Marshall and uncritically citing (liberal) “women’s groups” opposition to his nomination. It was the only textbook to mention Clinton’s appointments, and praised Ginsburg as a “pioneer in the struggle of legal rights for women.” 

Here is how the book treated the various nominees: 

[President Reagan’s] first appointment was Sandra Day O’Connor. A conservative Republican, she had earned respect on the Arizona Supreme Court as a skilled, forthright, and hard-working judge. Easily approved by the Senate, in 1981 she became the first women to sit on the United States Supreme Court.  

Chief Justice Warren E. Burger stepped down in June [1986] and the President nominated the brilliant William H. Rehnquist, a conservative Associate Justice, to take his place. To fill Rehnquist’s seat on the Court, the President named Antonin Scalia, an intelligent, scholarly, and witty appeals court judge, who was also conservative. The son of an Italian immigrant, he was speedily and unanimously approved by the Senate. He symbolized American opportunity as he became the first American of Italian descent to sit on the Supreme Court.

To replace [Justice Lewis F. Powell, Jr, in 1987] President Reagan nominated Judge Robert Bork of the United States Court of Appeals for the District of Columbia. Bork was a bearded, learned, and especially outspoken conservative. He had been a professor at Yale Law School. For 30 years he had taught, written, and spoken against Supreme Court decisions on abortion, privacy, and civil rights. As Solicitor General of the United States under Nixon, Bork had carried out Nixon’s order to fire special prosecutor Archibald Cox.

 ... The fight over the Bork nomination was one of the most bitter in American history. Bork’s champions defended him as a wise and courageous conservative. His opponents, led by Senator Edward Kennedy of Massachusetts, attacked him for being insensitive to the rights of minorities and standing outside the mainstream of American social progress. After three weeks of televised public hearings, during which Bork expounded his views upon many subjects, the Senate Judiciary Committee voted 9 to 5 against the nomination. It was defeated in the full Senate 58 to 42, the largest margin by which a Court nominee had ever been rejected.

In haste and anger, President Reagan then nominated the young and little-known Douglas H. Ginsburg, who had only been recently named to the United States Court of Appeals. Then, to everyone’s surprise, it was revealed that Ginsburg had smoked marijuana while he was a professor at Harvard Law School. This embarrassed an administration that was so strongly for “law and order” and on an antidrug crusade.

 … President Reagan, retreating from a fight with the Senate, finally made a choice that was not controversial. He named Justice Anthony M. Kennedy of the United States Court of Appeals. A moderate and pragmatic conservative, Kennedy was confirmed without a dissenting vote early in 1988.

In 1990, liberal justice William Brennan retired after 33 years on the Court. Bush nominated David Souter, a moderate and highly qualified federal judge from New Hampshire. Souter breezed through hearings before the Senate Judiciary Committee and was easily confirmed by the full Senate. The following year,  … [to replace Thurgood Marshall], George Bush nominated another black man, Clarence Thomas, a forty-three-year-old federal judge. Thomas’s ideals could not have been more different than Marshall’s. As head of the Equal Opportunity Commission (EEOC) under President Reagan, he had been an outspoken opponent of affirmative action and other government efforts to eliminate government inequality. 

Liberal groups, including the NAACP, insisted that Thomas, with neither experience nor proven judicial talent, was a poor choice to replace the judicial giant who, years before, had led the legal battle against segregation. Women’s groups were further angered when Thomas, in hearings before the Judiciary Committee, was evasive about his position on the constitutionality of abortion. Despite that opposition, Thomas seemed headed for confirmation when word leaked out that Anita Hill, a black professor of law who had worked for Thomas at the EEOC, charged that Thomas had sexually harassed her on the job ten years ago … 

The Senate confirmed Thomas by a vote of 52-48. Women’s groups, though appalled at the way Professor Hill was treated by the Judiciary Committee, were pleased that the hearings triggered a nationwide belief about the complicated problem of sexual harassment.

... In 1993 Clinton nominated federal district court judge Ruth Bader Ginsburg to replace retiring Supreme Court justice Byron White. Ginsburg was a pioneer in the struggle for the legal rights of women. After quick confirmation by the Senate, she became the second woman justice in history and the first Jewish justice in 24 years. The following year, when Justice Harry Blackmun retired, Clinton nominated Stephen Breyer, another federal judge, to replace him. Known for both his intelligence and his ability to reconcile judges with different points of view, Breyer won the support of conservatives and liberals alike and was confirmed without notable opposition. 

Holt’s “American Anthem” also injected partisan commentary into its coverage of the Reagan and Bush Supreme Court appointments, highlighting liberal fears that Bork would try to “roll back Roe v. Wade and civil rights laws” and arguing that Republican senators’ defense of Clarence Thomas had “offended many women:”

Both Reagan and Bush sought to appoint conservative judges, at the same time setting off furious confirmation clashes in the Senate.

In 1987 Reagan nominated Robert Bork, a law professor and appeals court judge. Bork advocated a strict interpretation of the Constitution. Many senators and liberal groups feared he would roll back Roe v. Wade and civil rights laws. After angry hearings, the Senate rejected Bork. It later confirmed Reagan’s next nominee, Anthony Kennedy.

Another battle took place over a Bush nominee to the Supreme Court in 1991. This nominee was Clarence Thomas, a conservative African American judge and former head of the federal Equal Employment Opportunity Commission (EEOC). In televised hearings, the Judiciary Committee investigated charges that Thomas had sexually harassed her while she worked for him at the EEOC. Hill underwent aggressive questioning by Republican senators defending Thomas, which offended many women. Thomas narrowly won confirmation.

Prentice Hall’s “The American Nation” did not directly address the confirmation battle over Bork, and also did not mention Clarence Thomas directly. However, the textbook collectively portrayed Reagan’s Supreme Court justices as rolling back the tide of civil rights because of their conservative leanings.

Reagan and Bush appointed a total of 5 Justices to the Supreme Court. (One of Reagan’s choices, Sandra Day O’Connor, was the first woman to serve on the Court.) The new Justices were more conservative than those they replaced.

The more conservative Court placed new limits on the rights of suspected criminals, as well as on the right of prisoners to appeal convictions. The Court made it harder for workers to win job discrimination cases. It also reduced busing, which some school districts had used since the 1960s to achieve racial integration in public schools.

Although it did not discuss the Bush or Clinton nominees, Glencoe’s “The American Journey” painted each of Reagan’s appointments as conservative: “Reagan also put a conservative stamp on the Supreme Court by naming justices to the Court who shared his views. He wanted justices who favored a stricter interpretation of the Constitution. When the president appointed Sandra Day O’Connor in 1981, she became the first woman ever appointed to the Court. Reagan later appointed Antonin Scalia and Anthony Kennedy as Supreme Court justices.”

Prentice Hall’s “Pathways to the Present” gave the fairest analysis of Reagan’s Supreme Court justices. It did not discuss Bush’s or Clinton’s nominees.

Reagan’s appointees to the federal courts were fairly conservative. In 1981, he selected Arizona judge Sandra Day O’Connor as the nation’s first woman Supreme Court justice. In 1986, Reagan chose another conservative, Antonin Scalia, for the Supreme Court and raised conservative Justice William Rehnquist to the post of Chief Justice.

While O’Connor, Scalia, and Rehnquist won Senate confirmation, Reagan’s next Supreme Court appointment, conservative judge and former law professor Robert Bork, did not. The Democratic Party had won control of the Senate in the 1986 elections and most Democratic senators did not share Reagan’s goal of appointing conservative judges. Liberal groups joined together in 1987 to lobby the Senate to reject Bork’s nomination. The nominee whom the Senate finally approved, Anthony Kennedy, was known as a moderate conservative. He joined the Court in 1988.

The recent attempts by liberals to attack the Supreme Court as being dominated by conservative “hacks dressed up in black robes,” are being echoed in the classroom.

Considering that Clarence Thomas, Antonin Scalia, Ruth Bader Ginsburg, and Anthony Kennedy are still on the Court, attempts by textbooks to label and attack conservatives represent more than political commentary masquerading as history: they represent an effort by educators to influence children to oppose conservatives as opponents of “civil rights” and “women’s groups.”