WASHINGTON, June 27, 2018: Justice Anthony Kennedy ‘s decision to retire from the Supreme Court has sent a shockwave through America’s left and the DNC. The 81-year-old Kennedy, who has served on the Court since 1988, has been mostly conservative, but he has been a liberal swing vote on abortion, criminal justice, LGBT rights and other hot-button issues. If President Trump nominates a conservative like Justice Neil Gorsuch, the court will lurch decisively to the right.
Justice Anthony Kennedy an important vote for the left …
Kennedy was the swing vote or the author of the majority opinion in several high-profile cases:
- In 1992, he coauthored the majority opinion in Planned Parenthood v. Casey, which upheld the abortion rights found under Roe v. Wade.
- In 2005, he was the swing vote and author of the majority opinion in Roper v. Simmons, which struck down the death penalty for offenses committed before the age of 18.
- In 2013, he wrote the majority opinion in United States v. Windsor, striking down provisions of the Defense of Marriage Act.
- In 2015, he wrote the majority opinion in Obergefell v. Hodges, legalizing same-sex marriage in all 50 states.
- In 2016, he wrote the majority opinion in Fisher v. The University of Texas at Austin, allowing universities to use race as a factor in admissions.
And an equally important vote for the right
Kennedy joined his conservative colleagues in some notable decisions as well, including two 5-4 decisions this week: Trump v. Hawaii, which upholds Trump’s travel ban, and Janus v. AFSCME, which stops public sector unions from forcing public employees to pay union dues, even if they aren’t members.
Yesterday’s decision on Janus v. AFSCME overturned the 1977 precedent set in Abood v. Detroit Board of Education. The Abood decision found that public sector workers could be required to pay dues to unions that they hadn’t joined. Janus and his lawyers argued that mandatory union dues are a First Amendment violation.
In oral arguments, Kennedy agreed. He told Illinois Solicitor General David Frederick that mandatory dues require “people that object to certain union policies to pay for the implementation of those policies against their First Amendment interests.”
The court’s decision in Janus stoked the ire of liberals. It will end automatic union dues payments and force public sector unions to entice workers to pay voluntarily. The 5-4 decision was a reminder of what might have been had the Senate confirmed President Obama’s choice to replace Justice Antonin Scalia, Judge Merrick Garland.
Liberals still smarting over Garland
An earlier challenge to Abood failed in 2016, after Scalia’s death. The court split 4-4 along its conservative-liberal divide on Friedrichs v. California Teachers Association. Trump’s nomination of Gorsuch, who was promptly confirmed by a GOP-controlled Senate, almost guaranteed that this new challenge to Abood would succeed.
But with the confirmation of Gorsuch, the court retained its ideological complexion of the last generation: Four conservatives, four liberals, and a swing vote. A liberal majority seemed within Obama’s grasp, and it was snatched away. If Trump appoints another staunch conservative, that ideological complexion will change. Conservatives will have their first reliable majority in decades.
This makes Trump an undeniably consequential president. Liberals hoped that his executive orders would be undone by the next president, as Obama’s were by Trump. Presidents have more frequently sought ways to act that circumvent Congress, which has acquiesced in its own marginalization. But just as he has tried to do with Obama’s, Trump’s own legacy can be marginalized by a new administration.
Justice Anthony Kennedy causes dismay among liberals
But not his judicial picks. And today’s liberal social media chatter says it all:
Justice Kennedy's retirement is a catastrophe for liberals. Abortion access, same-sex marriage, voting rights, environmental regulations—they're all on the line now. This is nothing short of a crisis for the left. https://t.co/J9QK4CBwkQ
— Mark Joseph Stern (@mjs_DC) June 27, 2018
How very cool of Justice Kennedy to pour kerosene on the current dumpster fire that is America. The Roe v Wade riots should provide fine entertainment for him in his retirement.
— Molly Knight (@molly_knight) June 27, 2018
we may have just left the point at which we could rely on democratic norms to fix our government, and are now on the road to literal revolution! #kennedy
— Elaine Atwell (@ElaineAtwell) June 27, 2018
Can an ideological judge avoid partisanship?
Justice Ruth Bader Ginsburg has said, “What I care most about, and I think most of my colleagues do, too, is that we want this institution to maintain the position that it has had in this system, where it is not considered a political branch of government.” Her hope was that while there are ideological divisions in the court, they won’t be seen as partisan political divisions. The justices often divide on the conservative-liberal line, but when they can find common ground, that division isn’t simply political.
Justice Kennedy was one justice who tried hard to find that common ground. That made him popular on neither the left nor the right. If, however, a justice is consistently popular with one political group, the question of his or her political independence is a fair one. A justice should be expected to see issues through an ideological lens – everyone does – but the hope is that a decision will follow from rigorous legal logic, not that it will dictate the logic used to reach it.
Next Step is President Trumps
Conservatives will hope that Trump nominates a conservative judge to Kennedy’s seat. That’s a reasonable hope. If Trump nominates a principled conservative to the court, his impact on America will last far beyond his executive orders and policies, and it will profoundly shape legal thinking and political realities for a generation. (Assuming, of course, that one or more of the elderly conservatives on the court doesn’t die or retire during a Democratic president’s term.) If he appoints a politically driven conservative, his impact on political realities will remain, but not his impact on legal thought.
The court will probably be a more politicized and conservative institution in its next term. If that persuades liberals to pursue social change via legislation rather than court decisions, that will be all to the good.