1990—After nearly 34 years of liberal judicial activism on the Supreme Court, Justice William J. Brennan, Jr. announces his retirement. As Jan Crawford describes it in Supreme Conflict, “For conservatives, Brennan’s retirement gave George H.W. Bush the chance of a lifetime.… It was that rare moment when a conservative president was positioned to replace a liberal giant.… It would give conservatives a dramatic opportunity to cement their majority and firmly take ideological control of the Court.” But “the president did not want the kind of bruising fight over the Supreme Court that Reagan was willing to endure.”
Five days later, President Bush will nominate David H. Souter to fill Brennan’s seat.
2020—Displaying their obstinate refusal to clean up their messes, the liberal judges on the Ninth Circuit unite to deny en banc review of two panel rulings that threaten to undermine the state-secrets privilege. The ten judges who dissent from the denial of rehearing en banc in Fazaga v. FBI decry the panel’s “untenably broad interpretation” of a statute to displace the state-secrets privilege with respect to electronic surveillance. The twelve judges who dissent from the denial of rehearing en banc in Husayn v. United States object to the “serious legal errors in the [panel] majority opinion, and the national security risks those errors portend.”
In March 2022, the Supreme Court will reverse the Ninth Circuit in both cases, in a unanimous ruling in FBI v. Fazaga and in a lead opinion by Justice Breyer in United States v. Zubaydah.