hold their seats for life but become eligible for “senior” status after age sixty-five based on a formula combining their age and years on the bench. Senior judges officially vacate their seat and no longer take part in circuit-wide “en banc” hearings or interim motions. They often remain relatively engaged in the business of judging, however, opting to carry up to a full load of regular cases or traveling to sit on cases in other circuits. A major incentive to take senior status is the generous pension: full salary at the time of retirement, plus cost-of-living increases; “Pro-life Women Sound the Alarm: Donald Trump is Unacceptable,” Susan B. Anthony List, January 26, 2016, sba-list/home/pro-life-women-sound-the-alarmdonald-trump-is-unacceptable.
12. Paige Winfield Cunningham, “How the November election could alter the future of abortion,” Washington Examiner, January 31, 2016, washingtonexaminer/how-the-november-election-could-alter-the-future-of-abortion.
13. “Donald Trump: The Full ‘With All Due Respect’ Interview,” interview by Mark Halperin and John Heilemann, Bloomberg, August 26, 2015, bloomberg/news/videos/2015-08-26/donald-trump-the-full-with-all-due-respect-interview.
14. Paige Winfield Cunningham, “How the November election could alter the future of abortion,” Washington Examiner, January 31, 2016, washingtonexaminer/how-the-november-election-could-alter-the-future-of-abortion.
15. Mark Hemingway, “Cruz Control,” National Review, April 16, 2009, nationalreview/magazine/2009/05/04/cruz-control/.
16. Washington Post Staff, “Wednesday’s GOP Debate Transcript, annotated,” Washington Post, September 16, 2015, washingtonpost/news/the-fix/wp/2015/09/16/annotated-transcript-september-16-gop-debate/.
17. Sahil Kapur, “Ted Cruz Vows to Put Hard-Core Conservatives on Supreme Court,” Bloomberg, December 2, 2015, bloomberg/news/articles/2015-12-02/ted-cruz-vows-to-put-hard-core-conservatives-on-the-supreme-court.
18. While federal judges are generally nominated by the president and must be confirmed by the Senate before taking office, the Constitution provides for unilateral appointments by the president for vacancies that occur “during the recess of the Senate.” U.S. Constitution, Article II, section 2. Judges so appointed must be confirmed by the Senate before the next session of Congress ends or their appointment expires. Both Warren and Brennan were ultimately confirmed by the Senate.
19. Eisenhower did carry the historically Catholic and Democrat strongholds of New Jersey, Rhode Island, Massachusetts, and New York in the 1956 election, just one month after Brennan was confirmed. It is not clear how much Brennan’s appointment contributed to this victory, however, as he had won those same states in 1952 as well. See Stephan J. Wermiel, “The Nomination of Justice Brennan: Eisenhower’s Mistake? A Look at the Historical Record,” Constitutional Commentary 11 (1995): 533.
20. Patricia Brennan, “Seven Justices, On Camera,” Washington Post, October 6, 1996, Y06.
21. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
22. Engel v. Vitale, 370 U.S. 421 (1962); School District of Abington Township v. Schempp, 374 U.S. 203 (1963).
23. See, e.g., Mapp v. Ohio, 367 U.S. 643 (1961); Miranda v. Arizona, 384 U.S. 436 (1966); Katz v. United States, 389 U.S. 347 (1967).
29. No less an originalist scholar than Robert Bork called Brown “a great and correct decision,” but added that it “was supported by a very weak opinion.” While making his own originalist case for why the Fourteenth Amendment’s Equal Protection Clause did require overturning Jim Crow laws, he worried that the decision appeared to legitimize a type of judging that put results before reasoning. Judging by the Brown decision, the Court clearly didn’t think the “obvious moral rightness” of the result was supported by the history and text of the Constitution itself. So it viewed itself as “depart[ing] from the original understanding in order to do the socially desirable thing.” The irony, from Bork’s perspective, is that the original understanding in fact compelled that very result. See Robert H. Bork, The Tempting of America (New York: The Free Press, 1990), 75–76. Other originalists, like Michael McConnell, have presented persuasive evidence that the generation that ratified the Fourteenth Amendment believed it required the desegregation of schools and other public facilities. See Michael W. McConnell, “The Originalist Case for Brown v. Board of Education,” Harvard Journal of Law and Public Policy 19 (1995): 457.
30. Learned Hand, The Bill of Rights: The Oliver Wendell Holmes Lectures (New York: Atheneum, 1986), 54–55.
31. Benjamin Eric Sasse, “The Anti-Madalyn Majority: Secular Left, Religious Right, and the Rise of Reagan’s America,” Dissertation for the Graduate School of Yale University, May 2004, blurblawg.typepad/files/sasse-dissertaiton.pdf.
32. Reynolds v. Sims, 377 U.S. 533 (1964).
33. William G. Ross, “The Role of Judicial Issues in Presidential Campaigns,” Santa Clara Law Review 42 (2002): 429–30.
34. The Miranda dissenters were eloquent in their criticism of the Court’s creation of new law in that case. Justice Harlan wrote, “Nothing in the letter or the spirit of the Constitution or