University of Arkansas at Little Rock Law Review


Earl M. Maltz

Document Type



The significance of the events of 2016 for the future development of constitutional law has been widely discussed in both scholarly commentaries and the popular press. After the death of Justice Antonin Scalia early in that year, many progressives looked forward hopefully to the prospect of regaining control of the Supreme Court for the first time in almost fifty years. However, after the Senate refused to consider Barack Obama’s nomination of Merrick Garland to replace Justice Scalia, the surprise victory of Donald Trump in the presidential election led instead to further consolidation of the conservative dominance of the Court. Unlike the election of 2016, the impact of the presidential election of 2004 on the evolution of constitutional doctrine has generally been ignored by commentators. In 2004, apparently due in part to the backlash against the drive to obtain legal recognition for same-sex marriages, Republican George W. Bush won a narrow victory over Democrat John Kerry. Bush soon had the opportunity to fill two vacancies on the Court, and both of his choices have in general brought a conservative perspective to the cases that have come before them. If, by contrast, Kerry had been elected in 2004, he would have almost certainly chosen progressives to replace Justices Sandra Day O’Connor and William Rehnquist, giving progressives a majority on the Court that they would still enjoy today. This article begins by outlining the development of the dispute over same-sex marriage and the apparent relationship between that dispute and the Republican victory in 2004. The article then describes the consequences that that victory has had for the ultimate resolution of a wide variety of constitutional disputes and concludes by discussing the lessons of the election and its aftermath for our understanding of the role that the institution of judicial review has come to play in our political system.