by Bruce Dunlavy
(My blog home page and index of other posts may be found here.)
On June 27, 2018, as the Supreme Court session drew to a close, Justice Anthony Kennedy announced his retirement, effective at the end of July. Kennedy, a Reagan appointee and 31-year veteran of the Court, was both the senior justice and the member considered the “swing vote” whose outlook determined close cases.
The reaction on the left was immediate disheartenment. With the “moderate” Kennedy gone, they are certain, President Trump’s appointment of a right-wing justice will significantly transform the Court and pave the way for repeal of Roe v. Wade, a retraction of LGBTQ rights, and a host of other reversals of hard-won victories.
Yes, the replacement of Kennedy will be bad for liberal and progressive aims, but not in the sense that it will change the direction of SCOTUS. What it will do is continue and prolong the rightward march that has been the hallmark of the Court for over 40 years.
The fact that Kennedy was considered the “moderate” shows just how far SCOTUS has veered to the right. Half a century ago, the Court had powerful progressive members such as Justices Brennan and Douglas. After Thurgood Marshall joined the left bloc of SCOTUS in 1967, every justice appointed until Ginsburg in 1993 (and there were ten new appointments) was more conservative than the justice s/he replaced.
Among that group of new conservatives was Anthony Kennedy, appointed by President Reagan and confirmed unanimously by the Senate in 1988. He proved to be a reliable conservative voice in most cases, but when Justice O’Connor retired, he was cast by observers into her role as the “moderate swing vote” who would be the fifth majority justice in closely divided cases. Kennedy did not seek that, nor did he like being described that way.
Kennedy retained the “swing vote” attribution not necessarily for his independent thinking, but for his seeming to agonize over his decision in case after case, keeping his opinions uncertain until a decision was announced. It was not so much the action of a deep thinker as a wavering vacillator.
In the end, as his votes played out, he turned out to be a reliable conservative with a strong libertarian streak. Thus he generally could be found with the rightist bloc of SCOTUS. There were a handful of exceptions, notably LGBTQ rights, but even then he was not a hard-liner. Despite being the champion of Obergefell v. Hodges, which affirmed same-sex marriage, he took anti-gay positions in Boy Scouts of America v. Dale and Christian Legal Society v. Martinez, and only three weeks ago he delivered the Court’s opinion in the Masterpiece Bakeshop case.
In addition, Kennedy was with the conservative majority in decisions permitting religious intrusion into government (Allegheny County v. ACLU), upholding the death penalty (Kansas v. Marsh), failing to protect the environment (Couer Alaska v. SE Alaska Environmental Council), allowing election manipulation (Bush v. Gore), and gutting the Voting Rights Act (Abbot v. Perez). Only yesterday, in Janus v. AFSCME, Kennedy sided with the conservative majority to overturn the Abood precedent and deny public employee labor unions compensation for work they perform for non-members. In the decision that (temporarily) saved Obamacare, National Federation of Independent Business v. Sebelius, the “swing vote” was Chief Justice Roberts, as Kennedy voted with the conservative bloc.
The two most significant cases in which Kennedy tipped the scales were District of Columbia v. Heller and Citizens United v. Federal Elections Commission. In both he sided with the other right-wing justices. There is speculation that SCOTUS declined to hear a number of gun-rights cases because of uncertainty over how Kennedy would vote, but his agreement in Heller suggests otherwise. That decision reversed over 200 years of precedent by finding in the Constitution an individual (rather than collective) right to the possession and use of firearms.
Kennedy wrote the majority decision in Citizens United, which struck down Federal laws controlling the influence of money in elections and gave us the sordid, corrupt, money-grubbing system of elections we now have, with elected officials groveling at the feet of corporations and the rich and rushing to do their bidding in legislation. His positions on Heller and Citizens United were not unusual for Kennedy. During his career he voted to strike down more Federal and State laws than any other justice in Court history.
That is not the record of a thoughtful moderating influence on a potentially overreaching Court. It is the record of a judicial imperialist, an activist seeking to do what illiberal voices always rail against – “legislate from the bench.”
Image credit: salon.com
What will happen with this vacancy? Of course, the Republican majority in the Senate will give the president what he wants. In the 2014 mid-terms, Democrats forgot that elections have consequences, didn’t make a big effort, and lost their majority in the Senate. Current Majority leader Mitch McConnell, who so famously refused to consider President Obama’s 2016 SCOTUS nomination of Merrick Garland because it was an election year and the people’s will had to be taken into account, will rush through the approval of the new justice before the November election. That way he can avoid worrying about the unlikely takeover of the Senate by Democrats, while at the same time making it even more unlikely. Democratic Senators Manchin, Heitkamp, and Donnelly are up for re-election this fall in States Trump won handily. McConnell’s action will hold their feet to the fire, and if they defy the president’s wishes they may face backlash at the polls in November.
Yes, Democrats will shriek about McConnell’s hypocrisy, but neither he nor his party nor their supporters care. We must remember the admonition of Finley Peter Dunne’s Mr. Dooley, “Politics ain’t beanbag.” The Democrats have a habit of forgetting that. They try to appear reasonable in politically-charged events. As I have noted before, Republicans play hardball; Democrats play Pat-the-Bunny. The future of the judicial branch is being shaped for the next 30 or 40 years. Democrats, when in power, avoid putting up extreme ideologues as judges (Clinton’s two appointees, Breyer in particular, are hardly far-out leftists), and they do not automatically put forward young nominees. Republicans, on the other hand, do not even bother to disguise that they are trying to pack the courts with right-wing extremists in their 30s and 40s, irrespective of their judicial experience or expertise. What they care about is that the nominees can be counted on for very conservative opinions and are young enough to stay in place for 30 to 40 years. Hardball.
I don’t expect the new justice to be much different from Kennedy, just younger, so s/he can influence SCOTUS until at least mid-century. Roe v. Wade is not going to be overturned. What will happen will be a continuation of the slow process of making it more and more difficult to obtain a legal abortion, thus leaving Roe on the books as a lightning rod for Republican activists, but effectively killing it by the death of a thousand cuts. The significant case in that regard is Planned Parenthood v. Casey, which upheld the right to abortion, but allowed States to impose such severe restrictions on access to the procedure that today half the nation’s legal abortions are performed in only five States.
Kennedy’s other significant departure from the conservative core, LGBTQ rights, won’t whip backwards, either. The aforementioned Mr. Dooley also noted that “Th’ Supreme Court follows th’ election returns,” meaning that as public sentiment changes, so do the Court’s decisions. While Roe ran ahead of public opinion, Obergefell did not. The public has come to accept same-sex marriage and it’s going to stay. There will just be more nibbling around the edges, as in Masterpiece Bakeshop.
In the last analysis, it is unlikely that the direction of SCOTUS will change when Justice Kennedy’s replacement takes his/her seat. What will change is the speed and duration of the direction in which the Court has been moving for the last several decades.