I planned to write about the McConnell Court after the appalling decision in the Muslim ban case, which featured an off-hand reversal of the infamous Korematsu ruling. I hadn’t planned to write about Anthony Kennedy but then the news cycle went berserk and my plans changed.
Liberal twitter was on suicide watch after Kennedy’s announcement. There was fear in the virtual air. Kennedy *was* a swing vote on some issues that matter to liberals: abortion, guns, and gay rights. BUT he was also a conservative Reagan appointee who voted with right-wing justices in 13 out of 13 5-4 decisions this term.
It was always more fan fiction than reality that Justice Anthony Kennedy was a moderate centrist. Democrats liked to soothe themselves with the story that Kennedy was a moderate because he’d provided the fifth vote to support continued affirmative action, reproductive rights, and gay rights and had strung the left along with the tantalizing promise of someday finding an unconstitutional political gerrymander. But we always knew that Kennedy was a conservative, indeed a very conservative conservative. Recall that in the famous study done in 2008 by Richard Posner and William Landes, “Four of the five most conservative justices to serve on the Supreme Court since the time of Franklin Roosevelt, including [John] Roberts and [Samuel] Alito, are currently sitting on the bench today.” And Kennedy? He was ranked in that study as the 10th most conservative justice in the past century.
To the extent we wrote paeans to Kennedy, it was for his occasional defections in areas that materially affect the lives of millions of people—women, minorities, LGBTQ couples, voters, Guantanamo detainees. And to be sure, each of those votes was well worth it. But we knew that for each such vote, there was a Bush v. Gore, a Citizens United, a Shelby County.
Kennedy’s opinions this term reflected an exhaustion with the law and the court that shouldn’t surprise anyone. He’s 81 years old and ready to sit back and do whatever retired Supremes do. We should have never regarded him as a legal savior of sorts. We’re on our own now.
I am not optimistic about the chances of defeating Trump’s next nominee BUT it’s a battle well-worth waging. The filibuster was nuked for SCOTUS nominees during the Gorsuch confirmation process BUT the GOP majority is nominally 51-49 but actually 50-49 because of John McCain’s illness. I am not optimistic about rhetorically pro-choice Senators Collins and Murkowski voting NO since Republican moderates almost always cave. Jeff Flake has made noises about holding up judicial nominees until McConnell allows a vote on tariffs but it’s unclear if that would apply to Kennedy’s soon-to-be vacated seat. Besides, Flake has been all hat and no cattle in his opposition to the Orange menace. We’re on our own now.
Having said that, Senate Democrats owe their base a fierce fight over this nomination. The future of Roe v. Wade is at stake. Overruling that 45 year-old precedent will NOT automatically render abortion illegal nationally, BUT it would allow states to do so. I expect the Gret Stet of Louisiana to be one of the early entrants in the odious race to abolish abortion. Louisiana Republicans have been working over-time to make Democrat John Bel Edwards a one-term Governor and a Roe reversal would hand them a cudgel. Edwards is rhetorically pro-life and, like Justice Kennedy, has supported restrictions. But Governor Edwards would have to deal with an enraged Democratic base if he signed a bill banning all abortions. I somehow doubt he views that prospect with anything but foreboding. He needs Gret Stet liberals if he is to be re-elected. It will be a major test of coalition politics here in my backyard. Stay tuned.
Kennedy’s exit-stage right-is a reminder to liberals that we should stop looking for saviors. There’s no deus ex machina that’s going to drop from the sky and save us from the Trumper horde. We have to do it ourselves at the ballot box. There remains an excellent chance to flip the House but control of the Senate is up in the air despite the GOP’s narrow margin. It’s a tough map for Democrats, which is why everyone needs to forget about 2020 and focus on state and congressional elections. We on our own now.
Like many, I had hoped that Anthony Kennedy’s personal qualities would make him loath to allow the loathsome Insult Comedian to appoint his successor. Kennedy is famous for using words like dignity and respect in his opinions. Ain’t nobody less dignified or more disrespectful than Donald Trump who has already made the Kennedy retirement about himself. Dahlia Lithwick, once again, summed up my feelings on this point:
Many of us predicted that Kennedy would not allow Trump to replace him with someone who would dismantle his legacy. We were wrong. Many of us believed that a lifelong devotee of dignity, civility, and the rule of law would not want his work tarnished by a president who routinely attacks individual judges and the very notion of an independent judiciary. We were wrong. That two of Anthony Kennedy’s last judicial acts included a letter that opened “My dear Mr. President” and a vote to grant that same president a virtual blank check on the national security front certainly suggests that nothing about a president who lies, bullies, and destabilizes the rule of law was any kind of real impediment to Kennedy’s departure.
2018 is the most important off-year election in the history of the Republic. It’s a chance to check the wild excesses of the executive and legislative branches. Organize and vote like your life depends on it.
We’re on our own now.
INSTANT UPDATE: In the least surprising development ever, Jeff Flake has announced that he won’t put a hold on a Supreme Court nominee.
We’re still on our own.