Federal Courts and Nominations

Justice Kennedy is retiring. What happens now?

The deeply conservative 2017-18 term is just a taste of what the Supreme Court could become

LAST June, progressives breathed a sigh of relief when Anthony Kennedy (pictured) stuck around to serve a 30th term on the Supreme Court. But a year later, with Justice Kennedy announcing he is ending his tenure on July 31st 2018 and handing another high-court vacancy to President Donald Trump, the left is gasping for air. Abortion, environmental protections, gay and lesbian rights, racial equality and voting rights are all newly vulnerable.

As the court’s median justice for more than a decade, the 81-year-old Reagan appointee has sided with the liberals in certain key cases. He stood up for abortion rights and protected affirmative action at universities. He helped to save the anti-discrimination protections at the heart of the Fair Housing Act in 2015. Most famously, he wrote four gay-rights rulings, culminating in a 2015 decision opening marriage laws to gays and lesbians. Yet Justice Kennedy closed his third decade on the court in a decidedly rightward pose. This term the court issued 63 rulings, 18 of which were decided 5-4. Of those, only four rather piddling victories went the liberals’ way. And Justice Kennedy did not swing towards them in any of the tight decisions.

That should not come as a huge surprise, says Leah Litman, a law professor at the University of California at Irvine and former Kennedy clerk. Her old boss “has always been on the right”, she says. “The left just eked out a few wins along the way”. But liberals had high hopes that Justice Kennedy would see the law their way in three of the year’s most contentious cases.

The first disappointment for liberals came in Masterpiece Cakeshop v Colorado Civil Rights Commission, the tiff over whether Jack Phillips, a Christian baker, had the right to refuse to bake a cake celebrating the nuptials of two men. Justice Kennedy’s empathy for the baker won the day in Masterpiece. A civil-rights commissioner had spoken disrespectfully of Mr Phillips’s faith, Justice Kennedy wrote for a 7-2 majority, unconstitutionally impinging on his religious liberty.

Another case involving hostility towards religion—the wrangle over the third iteration of Mr Trump’s ban on travellers from certain Muslim countries—seemed different in the outgoing justice’s eyes. In Trump v Hawaii, Justice Kennedy voted to uphold Mr Trump’s proclamation despite presidential comments suggesting that “Islam hates us” and that Muslim terrorists should be shot with bullets dipped in pig’s blood. The Supreme Court’s job, Chief Justice John Roberts wrote for the five conservatives, is not to “denounce” presidential statements but to respect “the authority of the presidency itself”.

The decision drew a furious dissent from Justice Sonia Sotomayor. It inspired an almost plaintive concurring opinion from Justice Kennedy. While many statements and actions of government officials “are not subject to judicial scrutiny or intervention”, he wrote, “that does not mean those officials are free to disregard the constitution and the rights it proclaims and protects”. It is an “urgent necessity”, Justice Kennedy continued, “that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs”. With some evident trepidation about the hands in which he was about to place the responsibility of filling his seat, Justice Kennedy added this mild parting shot: “An anxious world must know that our government remains committed always to the liberties the constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”

Anthony and Caesar

A pair of partisan gerrymandering cases teed up just for Justice Kennedy might have reformed voting laws had the man Rick Hasen, an election-law expert, calls “Justice Hamlet” been a little less mercurial. In 2004, Justice Kennedy lamented election “rigging” but couldn’t find a workable standard for policing the practice of lawmakers drawing electoral districts to rope out the competition; 14 years later, he had little interest in new theories on how to define egregious gerrymandering in Gill v Whitford and Benisek v Lamone. What could have been a coalition to rein in partisan redistricting became unanimous decisions to put off the matter for another day. With Justice Kennedy on his way out, and the conservative justices unworried by gerrymandering, that day may never come.

Justice Kennedy and the court’s four liberal justices may not have waltzed together in a 5-4 decision this term, but Chief Justice Roberts did, twice, and the soon-to-be-second-newest justice, Neil Gorsuch, took one turn across the aisle. The chief departed from his conservative colleagues in Carpenter v United States, a Fourth Amendment ruling requiring authorities to get a search warrant before tracking individuals’ location through data beamed to cell-phone towers. Justice Gorsuch, who owes his seat to Senate Republicans’ refusal to consider Merrick Garland, Barack Obama’s choice for the court, joined the liberals in Sessions v Dimaya to curtail the government’s power to deport people convicted of certain crimes.

Yet in his first full term on the bench, says Elizabeth Wydra of the Constitutional Accountability Centre, Justice Gorsuch has largely lived up to his billing as a “legal vending machine” for the right. He helped form three 5-4 majorities in June to curb voting rights. In NIFLA v Becerra, he joined another 5-4, striking down a Californian regulation designed to inform pregnant women about where to go to get an abortion. After remaining silent in the oral argument for Janus v AFSCME, an important case on public-sector unions, Justice Gorsuch signed onto Justice Samuel Alito’s 5-4 opinion overturning a 41-year-old precedent that let unions charge non-members an “agency fee” for collective bargaining. In Justice Elena Kagan’s dissenting opinion, Janus is the result of the conservative justices’ “six-year crusade” to cripple the struggling labour movement.

The term ending this week offers a “preview of what the Supreme Court would be like if Chief Justice Roberts were to become the swing vote”, Ms Litman says—in other words, a court with a Gorsuch-like jurist in Justice Kennedy’s old seat. Except in some criminal cases, “progressives will lose, and they will lose a lot”. As bad a beating as the left took this year, losses may be starker and deeper in years to come. And areas of the law in which Justice Kennedy has stemmed the right-wing tide could soon be the wild west. No outright challenges to Roe v Wade, the 1973 decision establishing a right to abortion choice, have reached the court in recent years. That may change with Justice Kennedy’s departure, as cases involving state abortion bans as early as six weeks’ gestation—like a fetal-heartbeat bill Iowa legislators passed this spring—could make their way to the justices’ inbox. Challenges to gay rights—even Obergefell v Hodges, the same-sex marriage ruling—may get a fresh hearing, too.

This is an extraordinary moment in the life of America’s constitution which, though written down, has meanings that the justices find to be ever-changing. The president holds the keys to an appointment that could lock down a conservative majority for decades, while he is under investigation by a special counsel. The Senate must carefully scrutinise whoever Mr Trump taps to replace Justice Kennedy.

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