The following article by Joseph P. Williams was posted on the U.S. News and World Report website June 29, 2018:
Justice Kennedy’s retirement cements the high court’s shift to the right – perhaps for generations.
Carlos Barria/Reuters
AS USUAL, THIS YEAR’S Supreme Court term had a slow start, with liberals and conservatives reaching consensus on controversial issues, if not avoiding them entirely. But in a dead sprint to the finish line, the high court’s conservative majority triggered a series of unexpected shock waves and gave the nation a glimpse of the future.
The bloc led by Chief Justice John Roberts, and anchored by Justice Neil Gorsuch, the court’s newest, most conservative member, swept aside progressive arguments (and its own precedents) to defang public-sector labor unions, support “pregnancy crisis centers” that steer women from abortions and uphold what opponents call politically-rigged voting districts.
In approving President Donald Trump’s ban on immigrants from Muslim-majority countries, the majority even walked past the high court’s own ugly history< of giving the thumbs-up to Japanese internment camps during World War II.
The result is indisputable: The nation’s highest court has apologetically defined itself as a highly conservative institution. And the court’s four liberals — several of whom signaled their displeasure at the rightward shift by reading scathing dissents out loud from the bench — can do nothing about it.
Yet if the last fortnight of the court’s spring 2018 term had conservatives collectively making a statement, Justice Anthony Kennedy, a center-right jurist and counterweight to the majority’s power, added a bold-type exclamation point.
His decision to retire, announced Wednesday, gives Trump the opportunity to nominate another staunch conservative to replace him, shoving the court even further to the right and anchoring it there for generations. While progressive activists vow to storm the streets in protest, Senate Democrats, disarmed by majority Republicans during the fight to confirm Gorsuch, don’t have the power to stop or even slow down the move.
“We don’t have the power,” Sen. Dick Durbin, an Illinois Democrat, said on MSNBC Thursday morning. “Under the rules with Justice Gorsuch, in a matter of three months or so, he went from being nominated by the White House to being approved by the United States Senate. In the meantime, there was vetting, investigation, hearing, questions, votes in the committee, consideration on the floor. But it was on a path where the majority controlled the outcome, and at this point, we don’t have the majority.”
Put another way: It’s a lock that the court will become more conservative in the near future. That means questions on high-stakes issues that had been settled, if nominally, in liberals’ favor – affirmative action, access to polls, civil rights, same-sex marriage, immigration, workplace discrimination, government surveillance, a woman’s right to an abortion – are likely back in play.
“Some of us might say the court saved the worst for last,” Caroline Fredrickson, president of the liberal American Constitution Society, said Thursday at a National Press Club seminar reviewing the Supreme Court’s completed term. “After rather terrible rulings on the Muslim ban, worker’s rights and women’s reproductive health, and after punting on redistricting and claims of religious exemptions to anti-discrimination laws, the bomb went off.”
“We are now at a pivotal moment for this country,” she said.
But Rick Hasen, a University of California-Irvine law professor, curator of the Election Law Blog and a longtime Supreme Court analyst, believes the new conservative order has already started, and hasn’t come close to reaching its peak.
“If you did not like what the Supreme Court has done in the last few weeks on voting rights, public-sector unions, and Trump’s travel ban, things are going to get a whole lot worse,” Hasen wrote Thursday in an essay published on Slate.com.
Kennedy’s retirement means Roberts “is about to become the new swing justice,” and it’s highly unlikely Trump will be swayed by any arguments from the left, Hasen wrote. “There’s precious little Democrats can do, at least in the short term, either to stop the nomination of another clone of Justice Antonin Scalia, or to stop the political benefit [Trump] is likely to get from such an appointment.”
Republicans, meanwhile, are going all-in, promising swift confirmation of another far-right conservative justice who interprets the Constitution as an imperfect but rigid document. Gorsuch, who was plucked from the ranks of federal appellate judges, is their model: a youthful jurist with glittering academic credentials, unquestionable conservative bona fides and a scant paper trail that doesn’t betray it.
“The Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump’s nominee to fill this vacancy,” McConnell said on the Senate floor Wednesday. “We will vote to confirm Justice Kennedy’s successor this
McConnell did not say if “this fall” meant before or after the election. A new Senate would not be sworn in until January.
But progressive activists vow the seat won’t be filled by a Gorsuch clone without a fight.
“This is a different ballgame than Gorsuch,” says Faiz Shakir, national political director of the American Civil Liberties Union, referring to the pitched but ultimately losing Senate battle over Trump’s first Supreme Court nominee. Though the stakes were high, he said, Gorsuch was replacing the late Justice Antonin Scalia, an arch conservative; replacing him with another conservative didn’t move Kennedy from being the court’s flexible ideological center.
But Kennedy’s departure ups the ante because “he has shown independence of thought and has not been a solid vote in either camp” and is willing to side with the liberals, Shakir says. “He was someone in the middle, a swing vote who has power.”
Replacing him with a far-right conservative “will jeopardize [many of] our basic rights and freedom, the most obvious being Roe v. Wade,” the Supreme Court’s 1973 decision guaranteeing a woman’s right to an abortion, Shakir says. “Anthony Kennedy staked his name on expanding rights and freedom,” and those precedents “would be in jeopardy.”
Even before Kennedy called it quits, however, the Supreme Court’s 2018 spring term was something of a beatdown for progressives. The swing justice, who was nominated by President Ronald Reagan, returned to his conservative roots, siding with the four conservatives in several major cases.
In the final nine days of the spring term, the right scored big wins on Trump’s travel ban, union fees, antitrust liability, Texas voting districts opponents say are gerrymandered and a California law ordering anti-abortion pregnancy centers to inform women about abortion. Those rulings were on top of earlier decisions that curbed workers’ class-action lawsuits and gave states more power to purge inactive voters from registration databases.
“This may go down as the most conservative, ideologically divided Supreme Court term in the nation’s history,” Tom Goldstein, a Washington appellate lawyer who founded the Scotusblog.com website, told Bloomberg News. “The ideological blocs lined up on a huge number of large and small issues, and the left got routed.”
“On a lot of the core issues this time around, [liberals hoped] that Kennedy would break from the ideological right on some of those core issues — voting rights, equality,” Shakir says. “He didn’t do so. That was disappointing for sure.”
Kristine Lucius, executive vice president for Policy, The Leadership Conference on Civil and Human Rights, says Kennedy relinquished his position as a swing justice even before he decided to hang up his robe.
“This was an incredibly devastating term that just wrapped up,” she says. “There were 14 [major] decisions this term that were decided on a 5-4 margin, and Justice Kennedy was on the side of the majority on every one of them. He was not a swing justice in any sense of the word, this term.”
And the court majority, Lucius says, was anything but small-c conservatives: “They overturned precedents,” particularly in Janus v. AFSCME – a ruling which banned public-sector labor unions from charging “fair share” fees of non-members. The court, she says, went out of its way to scrap a 40-year-old precedent, Abood v. Detroit Board of Education, to make the ruling.
“They overturned a very long-standing precedent and they didn’t even account for why they needed to do it,” she says.
Despite the odds stacked against them, Fredrickson, Shakir and Lucius each insist their side can force Trump and Senate Republicans to nominate a moderate for Kennedy’s spot through public pressure, including mass demonstrations on the street.
While Trump has insisted he will only nominate justices who will vote to overturn Roe v. Wade, it goes against recent public-opinion polls. A survey sponsored by Fix the Court, a nonpartisan legal-affairs advocacy group, found 71 percent of the public want Roe to remain the law of the land, and clear majorities favor upholding same-sex marriage and anti-discrimination protections for gays and lesbians.
“I think that we are in the fight of my lifetime for constitutional rights,” says Lucius. “I’ve been working on judicial nominations for over 14 years, and I can’t remember more hanging in the balance on a given vacancy.”
Still, Norman Ornstein, a senior scholar at the right-leaning American Enterprise Institute, believes the fix is in. Trump, he wrote on Twitter, will choose his nominee from a list of candidates already vetted by far-right activists and will instruct them, with a wink and a nod, to avoid ideology during Senate confirmation hearings.
“Remember this: every judge on Trump’s Supreme Court list has been vetted by the [conservative] Federalist Society,” he wrote on Twitter Thursday afternoon. “There is 100 percent certainty about how they will vote, on Roe, gay rights, voter suppression, campaign finance and labor/corporate issues.”
Like Gorsuch, “all are skillful enough to deflect the questions about their positions,” Ornstein wrote. “I laughed out loud when [during confirmation hearings] Gorsuch said he would walk out of the Oval Office if Trump had asked him