Justice Kennedy’s retirement could be the most consequential thing to happen during the Trump presidency
At the end of the Supreme Court’s current session, longtime Associate Justice Anthony Kennedy announced his retirement from the nation’s highest court. Kennedy was appointed during the Reagan administration after the Senate rejected Robert Bork, an extreme right-wing nominee who had tried to undermine the Watergate investigation (among other things). The magnitude of this retirement cannot be understated.
CNN’s senior legal analyst Jeffrey Toobin tweeted out after the announcement that “abortion will be illegal in twenty states in 18 months.” During his tenure, Kennedy was often considered the pivotal swing vote on the nine-person court, which is currently composed of four other Republican appointees (Gorsuch, Alito, Roberts and Thomas) and four Democratic appointees (Kagan, Sotomayor, Breyer and Ginsburg). Kennedy often sided with his conservative colleagues. In just this past term, he was the deciding vote in several 5-4 decisions that protected gerrymandering, dealt a crippling blow to public-sector unions, eroded gay rights, among upheld Trump’s Muslim ban, among other wins for Republicans. In the past, Kennedy has been a trailblazer for LGBTQ rights (from overturning state bans on sodomy to legalizing same-sex marriage) and has safeguarded against the complete dismantling of abortion rights. He ruled in favor of Citizens United and sided with George Bush in the infamous Bush v. Gore case.
The replacement of Kennedy with a Trump appointee will mean that reactionary conservatives will hold an absolute five-justice majority on the court, without Kennedy’s center-right jurisprudence to moderate them. Aside from abortion, the rights of minorities and unions could also quickly come under attack. The conservative justices’ recent ruling on public-sector unions could easily be broadened into ending most substantive labor rights laws. Those justices could also roll back previous rulings on LGBTQ rights, including same-sex marriage. Affirmative action could be ruled completely unconstitutional. Several important cases related to Trump’s immigration agenda are working their way through the court system. The religious rights of Christians could be expanded to protect more conservative followers from anti-discrimination laws while the rights of non-Christian religious people could be lessened.
For example, in two recent rulings, the Supreme Court upheld the Muslim ban, stating that it didn’t violate the freedom of religion clause in the First Amendment, but ruled that a Christian baker had the right to refuse to make a wedding cake for a same-sex couple on religious grounds. Abortion has been a target of the conservative right-wing for decades, since the Roe v. Wade ruling legalized abortion nationwide. The public does not support overturning Roe. According to the Pew Research Center, in December 2016, 69% were against it being overturned, while only 28% were for it. That is also a fifteen-point swing in favor of abortion rights since 2000. While public opinion overwhelmingly supports abortion rights, the nation’s high court and laws have been moving in the opposite direction.
In February 2016, another Reagan-appointed justice, Antonin Scalia, passed away in the midst of the that year’s presidential primaries. President Barack Obama appointed appellate court judge Merrick Garland to fill the vacancy, but Mitch McConnell and Senate Republicans prevented Obama’s nominee from even getting a hearing. The stated reason for their actions was that the confirmation process could not take place during an election year and that the American people should have a say in the process. However, many Republican Senators, such as John McCain and Church Grassley, said that they would not consider any nominees from Hillary Clinton if she had won the presidency. Their refusal to consider the president’s nominee was unprecedented. When Trump won, his nominee Neil Gorsuch was confirmed within months of his inauguration. Now, President Trump will likely have another nominee, who could serve on the bench for as long as forty years.
The Supreme Court faces the likelihood of becoming an entrenched partisan institution, something that justices appointed by presidents from both parties have sought to prevent for decades. The very basis of the Supreme Court’s legitimacy as the impartial final arbiter of the Constitution and federal law is in jeopardy. Soon, four of the nine justices will have been picked by two presidents (Bush 43 and Trump) that entered office after losing the popular vote. A fifth, Clarence Thomas, was confirmed despite credible allegations of sexual misconduct and abuse of power over a subordinate and has remained on the bench despite more allegations and evidence coming out against him.
The four currently justices, plus the future Trump appointee, will profoundly reshape this country in a way that the clear majority of this country does not want to happen for decades to come. At the same time, the presidency is currently occupied by Trump who received three million less votes than his opponent (to say nothing of other factors, such as Russian interference). This is the second time that has happened in the past five elections. The Congress is controlled by Trump’s party, with a House of Representatives that comes from gerrymandered districts and a Senate in which two members are elected from each state. This all favors Republicans. In 2012, Democrats won more votes nationally in House races, but were still consigned to the minority in that chamber. There is a strong likelihood that this could happen again in the 2018 midterms. The three branches of the federal government are dominated by one party and face substantive questions about their legitimacy to govern. Meanwhile, Trump and the Republican Congress are historically unpopular but are more likely than not to retain power for at least the next two years. This is nothing short of a crisis for our democracy and it will have profound implications for the future of this country and all who inhabit it.