The Court After Kennedy The consequential jurist has done the country a favor by retiring.
https://www.wsj.com/articles/the-court-after-kennedy-1530142949
Anthony Kennedy acted in the best interests of the Supreme Court and his own legacy Wednesday by deciding to step down after 30 years as an Associate Justice. The fight to replace him was always going to be titanic, and by retiring on July 31 he gives a Republican President and Senate an opening to nominate and confirm a replacement with the best chance of keeping the Court tethered to the Constitution.
The raw political reality is that Democrats will refuse to confirm any nominee likely to be chosen by Donald Trump if they win Senate control in November. They are still furious that Senate Republicans refused to confirm Merrick Garland in 2016 after the death of Antonin Scalia, and the political left would insist that they return the favor through 2020, and 2024 if they have to.
That could leave the Court with eight Justices for as long as three years or more, with a 4-4 ideological split on many contentious issues. The Court now has a chance for a full complement again by the start of its October term. The 81-year-old Justice Kennedy has done right by the country and the Court.
A Republican nominee also offers the best chance to sustain Justice Kennedy’s legacy, despite the fear and loathing you hear on the left. Democrats are already predicting the demise of abortion rights, the end of gay marriage, and no doubt we’ll be hearing about the revival of Dred Scott before the confirmation hearings on Justice Kennedy’s replacement are over. But that overlooks the entirety of Justice Kennedy’s jurisprudence, which is far richer than the cultural cases like Planned Parenthood v. Casey and Obergefell v. Hodges for which he is celebrated on the left.
Justice Kennedy’s jurisprudence has provided the fifth crucial vote in numerous cases defending the First Amendment’s right to free speech and religious liberty, the Heller decision on gun rights, and property rights.
He wrote the majority opinion in Citizens United that has prevented politicians from strangling political speech with campaign-finance regulation. For a stirring defense of free speech, see his concurrence this week in the 5-4 Becerra decision that protected anti-abortion pregnancy clinics from having to recommend the name and phone number of abortion providers. He was also the fifth vote in the 5-4 Zelman decision that upheld an Ohio school voucher program. Without his vote, these and dozens of other cases would have reduced core constitutional freedoms.
Justice Kennedy’s other great contribution has been support for federalism and the proper understanding of the separation of powers. He wasn’t the “swing” Justice who sustained ObamaCare; that was Chief Justice John Roberts. Justice Kennedy would have correctly tossed out the entire Affordable Care Act as a violation of the Commerce Clause. He was also the fifth vote to overturn provisions of a federal gun law for violating the Tenth Amendment that protects states’ rights (Printz v. U.S.)
Justice Kennedy was sometimes too willing to intrude into questions best left to the political branches, such as abortion and national security (Boumediene v. Bush, on rights for enemy combatants). His decisions on racial preferences were a particular muddle that a new Court will have to clarify.
Yet Justice Kennedy’s record is far better and more consequential than that of other Justices nominated by GOP Presidents such as William Brennan, Harry Blackmun, John Paul Stevens and David Souter.
***
As for the Court after Justice Kennedy, we doubt it will overturn his precedents on abortion or gay marriage. Even with a new conservative Justice, Chief Justice Roberts remains a legal and political wild card, and we use those words advisedly. He will certainly not want the Court to overturn the gay marriage case so soon after it was decided, lest it make the Justices seem too political.
As for Roe v. Wade, the abortion case was a legal travesty and should be overturned. But the Court has upheld its core right so many times that the Chief Justice and perhaps even the other conservatives aren’t likely to overrule stare decisis on a 5-4 vote. The likelier judicial path would be to allow the states modestly more room to regulate abortion while preserving the right.
Our point is that replacing Justice Kennedy should not be the legal war to end all wars. A single Justice will not turn the Court sharply to the right, and Republican Senators should not be intimidated by hyperbolic Democratic claims designed to fire up their voters for the November election.
President Trump made an excellent choice in Justice Neil Gorsuch, and the list of judges provided by adviser Leonard Leo and his White House counsel contains stellar names. (The one name we’d add is Jeff Sutton of the Sixth Circuit Court of Appeals.) The lesson of the Gorsuch selection is that a nominee with impeccable legal credentials and no skeletons can make it through even a sharply divided Senate. Republicans should seize the rare privilege that Justice Kennedy has given them.
Comments are closed.
