How Trump's Supreme Court Pick Could Undo Kennedy's Legacy
By Jeffrey Toobin, The New Yorker
03 July 18
Upon Justice Kennedys retirement, the President is unlikely to nominate a
moderate. What rulings would a brazen conservative majority produce?
There is no mystery about Supreme Court Justice Anthony Kennedys favorite
word. It is dignity, which he invoked repeatedly in his opinions. The word
appears three times in his 2003 decision in Lawrence v. Texas, which
established the principle that gay people could not be thrown in jail for
having consensual sex. He mentions it nine times in his most famous opinion,
Obergefell v. Hodges, from 2015, which guaranteed the right to same-sex
marriage in all fifty states. Lawyers, hoping to appeal to the Courts swing
vote, sprinkled their briefs and arguments with dignity, even as critics
on both the left and the right found Kennedys infatuation with the word
(which does not appear in the Constitution) maddening, because it was never
quite clear what he meant by it. Still, the word seemed fitting for the
mana tall, sombre Californian who appeared ever aware of the burdens
imposed by his station.
So there is some irony in Kennedys decision, last week, to turn over his
precious seat on the Supreme Court to the least dignified man ever to serve
as President. Though Donald Trump was a frequent litigant when he was in the
private sector, he displayed no discernible views on the judiciary. But,
once he became a Republican candidate for President, he fully embraced the
contemporary conservative dogma regarding the courts. He recognized that
evangelicals and their political allies would overlook his vulgar demeanor
if he pledged to give them the judges they wantedand he has, and he will.
Kennedy is no liberal. He provided the fifth vote to deliver the Presidency
to George W. Bush in Bush v. Gore; he was the author of the majority opinion
in Citizens United v. Federal Election Commission, which hastened the
deregulation of American politics; he upheld Trumps travel ban this term;
and his votes on the day-to-day grist of the Supreme Courts docketon labor
law, the environment, and health carehewed closely to those of his fellow
Republican nominees. But, to the dismay of conservatives, he departed from
their orthodoxy on some key issues in addition to gay rights, among them
affirmative action, the death penalty, and, most notably, abortion rights.
In the 1992 case of Planned Parenthood v. Casey, Kennedy voted to uphold Roe
v. Wade, and he remained a reluctant but steady advocate for maintaining the
precedent.
The whole purpose of Trumps Supreme Court selection process has been to
eliminate the possibility of nominating someone who might commit Kennedys
perfidies of moderation. The activists from the Federalist Society and the
Heritage Foundation who supplied the Presidents list of twenty-five
prospective nominees are determined to tear down the monuments, on select
issues, that Kennedy has built. Their labors have already produced one
soaring success, in the confirmation, last year, of Neil Gorsuch. His
extremism has exceeded that of his predecessor Antonin Scalia and equalled
that of his colleague Clarence Thomas, the Justice with whom he has voted
most often.
Yet its far from certain that the public wants the kinds of rulings that a
brazen conservative majority would produce. So the nominee and his or her
supporters will avoid spelling out the implications of this judicial
philosophy. As with Gorsuch, the nominee will be supported with meaningless
buzz phrases: he or she will be opposed to legislating from the bench and
in favor of judicial restraint. Like Gorsuch, the nominee will rely on
airy generalities rather than on specific examples. Its all the more
important, then, to articulate in plain English what, if such a nominee is
confirmed, a new majority will do.
It will overrule Roe v. Wade, allowing states to ban abortions and to
criminally prosecute any physicians and nurses who perform them. It will
allow shopkeepers, restaurateurs, and hotel owners to refuse service to gay
customers on religious grounds. It will guarantee that fewer
African-American and Latino students attend élite universities. It will
approve laws designed to hinder voting rights. It will sanction execution by
grotesque means. It will invoke the Second Amendment to prohibit states from
engaging in gun control, including the regulation of machine guns and bump
stocks.
And these are just the issues that draw the most attention. In many
respects, the most important right-wing agenda item for the judiciary is the
undermining of the regulatory state. In the rush of conservative rulings at
the end of this term, one of the most important received relatively little
notice. In Janus v. afscme, a 54 majority (including Kennedy) said that
public employees who receive the benefits of union-negotiated contracts can
excuse themselves from paying union dues. In doing so, the Justices
overruled a Supreme Court precedent that, as it happens, was nearly as old
as Roe v. Wade. (Chief Justice John Roberts, who has made much of his
reverence for stare decisis, joined in the trashing of this precedent, and
will likely join his colleagues in rejecting more of them.) The decision not
only cripples public-sector unionsitself a cherished conservative goalbut
does so, oddly enough, on First Amendment grounds. The majority said that
forcing government workers to pay dues violates their right to free speech.
But, as Justice Elena Kagan wrote in a dissent, this is weaponizing the
First Amendment, in a way that unleashes judges, now and in the future, to
intervene in economic and regulatory policy. She added, Speech is
everywherea part of every human activity (employment, health care,
securities trading, you name it). For that reason, almost all economic and
regulatory policy affects or touches speech. So the majoritys road runs
long.
Anthony Kennedy didnt spend his entire career on that road, and there is,
in his best opinions, the kind of decency and empathy that characterized
many of the moderate Republicans who once dominated the Court, such as
Justices Potter Stewart, Harry Blackmun, and Sandra Day OConnor. Kennedys
words at the conclusion of the Obergefell opinion deserve to be his judicial
epitaph. It would misunderstand these men and women to say they disrespect
the idea of marriage, he wrote. Their plea is that they do respect it,
respect it so deeply that they seek to find its fulfillment for themselves.
Their hope is not to be condemned to live in loneliness, excluded from one
of civilizations oldest institutions. They ask for equal dignity in the
eyes of the law. The Constitution grants them that right. But the
Constitution grants only those rights that the Supreme Court says it grants,
and a new majority can and will bestow those rights, and take them away, in
chilling new ways.
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