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Four hours after Jeffrey Toobin declared there would be no retirement announcements from the Supreme Court, Justice Anthony Kennedy decided to throw us one last curveball. His retirement ushers in a major sea change—an almost certain end to abortion rights and an abrupt termination of progress on civil rights that will almost certainly morph into a regression. It’s also going to change the practice of law at the Supreme Court.
So long as Kennedy was the swing vote, lawyers wrote for Kennedy. Hell, media wrote for Kennedy. And advocates and activists surely planned their legal challenges with Kennedy in mind. How far can we nudge Kennedy without pushing him too hard? Now, the swing vote’s going to be Chief Justice John Roberts, if Trump’s nomination of Justice Neil Gorsuch is any indication.
Our first preview of Roberts as swing vote came with the Obamacare case. It popped up again last week with respect to cellular privacy. I took a moment to note in that post that the Roberts-plus-the-liberals grouping is one we’d be likely to see more often “should Trump get to replace any of the more liberal justices—or swing-vote Anthony Kennedy.” It’s small consolation that Roberts has proved he has some flexibility, intellectually speaking. He’s just a chief justice concerned with his legacy, not an intellectually principled moderate. Roberts knows that taking the court too far in one direction bodes poorly for the longevity of its decisions.
Kennedy’s retirement will affect all Americans, but it will not affect all Americans equally. We’ll all suffer when the Supreme Court eventually issues a carte blanche to courts—now riddled with Trump’s judges—to raze agencies’ efforts to implement law, as Kennedy suggested in an otherwise superfluous concurrence last week. But his vote is especially critical to certain groups, like people of color and LGBT Americans, and on specific issues, like voting rights, reproductive freedom, and affirmative action.
Executive Director of LeGal Eric Lesh put it plainly:
Then there’s NARAL head Ilyse Hogue:
To be clear, Kennedy wasn’t good for gay rights. He was just better than the hardline conservatives. Up until the case that legalized marriage equality: Obergefell. Initially, it seemed Kennedy might be practicing incrementalism. He authored all three of the Supreme Court’s landmark gay rights cases, which successively developed the notion of human dignity with respect to LGBT Americans. In actuality, Kennedy is the reason LGBT Americans don’t enjoy the types of constitutional protections that are extended on the basis of gender, race, nationality, and religion, among other categories.
Last fall, a storied professor, well-versed in Supreme Court politics, told me the story of Obergefell—the story of how the vote broke down. Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan wanted to find that gay Americans are part of a suspect or quasi-suspect class under the Equal Protection Clause. That would mean that laws targeting gay Americans would become presumptively unconstitutional, or at least subjected to significantly more scrutiny. Kennedy refused, including only vague references to equal protection. At that point it still seemed to many that he might get to equal protection. But he never did. Quite the opposite, actually, in Masterpiece.
Kennedy controlled the evolution of gay rights jurisprudence because he was the swing vote. Retiring now, he’s left this body of law unfinished. Worse, he’s written us gays into a corner. The majority opinions he wrote only established that the right to liberty guaranteed by the Due Process Clause protects lesbians’ and gays’ rights to intimacy and marriage.
In Masterpiece, Kennedy’s language (and reasoning) makes clear he doesn’t support constitutional protections on the basis of sexual orientation. Anti-discrimination laws are, at most, he suggests, optional—valid if enacted with proper respect for those who wish to discriminate on the basis of religion. The court’s decision to send a case involving a florist who denied service to a gay couple back to Washington state proves it’s going to keep privileging religion, at least over gay rights. And it seems Kennedy concurred in NIFLA this week, an opinion sinking California’s effort to crack down on predatory fake “crisis pregnancy centers,” just to double down on the far-right Christians-are-the-real-victims concept.
Trump told pool reporters that Kennedy has "been a great justice of the Supreme Court,” a claim Ian Millhiser disputes vehemently. He also claimed he didn’t know about Kennedy’s retirement until meeting with the justice around the time the news broke. But Trump also told reporters that Kennedy came to the White House to meet with him. What else was that meeting going to be about? (Hush with the mention of Clarence Thomas and the photo shoot.)
If true, Trump’s account rules out the possibility some optimists floated that Kennedy would attempt to make a deal: He’d retire if assured he’d not be succeeded by an extremist. To be clear, that was an unlikely and essentially unethical scenario to begin with. Of course, Trump did say that he asked Kennedy for recommendations during their 30-minute meeting. He wouldn’t say, though, what Kennedy’s reply was.
Trump’s just trying to replicate George W. Bush’s success with Alito. Another point from my May 2017 piece predicting a post-Kennedy Supreme Court’s alignment:
Justice Ruth Bader Ginsburg has never been the assigning justice in a five-justice majority. Puzzling out the significance of this factoid may take even the most devoted SCOTUSBlog reader a moment. She’s never been the assigning justice in such a scenario because Alito never, ever deviates from the conservative line in controversial cases. Ginsburg would only have been the senior-most justice — that is, the assigning justice — in a five-justice majority involving the four liberal justices if Alito were the fifth. If Kennedy’s replacement resembles these two most recent Republican picks, the results will be cataclysmic for civil rights.
Trump has announced that he intends to begin the replacement process immediately. Curiously, he used “we”: “Hopefully we will pick someone who is just as outstanding.” That seems to make sense, I suppose, given the large role the Federalist Society has played in Trump’s judicial nominations and
Mitch McConnell’s singular pride in stealing Judge Merrick Garland’s seat for Gorsuch.
The Senate GOP is already revving up, and their contributions are nauseating. That whole “advice and consent” and confirmation role they were supposed to honor when Garland was nominated? They’ve suddenly remembered it’s part of their job again.
And, echoing the civility rhetoric, while achieving peak hypocrisy, McConnell’s got this gem for us:
Now, it’s wait and see. Trump told reporters he had a 25-name list. That list is, in fact, posted on the White House website. It’s a lot of the same names, and a few new ones—judges that Trump installed on the appellate courts over the last 18 months. That’s even scarier than Trump picking from among the most conservative current federal judges.