Replacing Justice Kennedy might be the American Left’s last fight.
A fifth hard-right Justice could mean a permanent Republican majority, and Democrats must do everything to prevent that.
When Supreme Court Justice Anthony Kennedy announced his retirement on June 27, the response from the American Left was appropriate alarm. Kennedy served as “swing vote” on a sharply divided court for more than a decade, and though many dispute his portrayal as a moderate, there is no question that his departure under President Donald Trump — combined with Mitch McConnell’s unprecedented gambit to block a Presidential appointment for more than a year — set the stage for a rightward swing on the court.
Among those (rightly) decrying the turn of events, many have focused on reproductive rights and Roe v Wade. These fears are founded: Whether the Court elects to reverse Roe or instead to slowly erode reproductive freedom, there is little hope abortion rights will survive a conservative Supreme Court. The problem is that these fears are too narrow. A closer look at the court’s right-leaning Justices, and the decades of conservative strategy that put them there, shows why the retirement of Anthony Kennedy might mean a complete victory for American conservatives, and a reversal of one hundred years of progressive achievement.
Since the early 1980s, the conservative movement has mounted a committed long-term strategy to reshape America’s judiciary. Gone are the days when Republican appointees like Earl Warren would reveal themselves, once appointed, to consider liberal arguments and advance social progress. Today’s conservative nominees are carefully vetted to ensure commitment. Many, like current Justices Alito and Gorsuch, tailor their entire career for a Supreme Court appointment, avoiding any controversial ruling or statement that might come back to bite them — a lesson conservatives learned with the defeat of Robert Bork in 1987. Many Americans might not realize the extent of the agenda advanced by today’s conservative Justices, or just how extreme the consequences of a conservative Supreme court might be.
Our current conservative Justices (and, of course, the conservative movement that put them on the court) have expressed hostility toward environmental regulation, nondiscrimination law, voting rights, criminal justice reform, labor regulations, and tax law. More importantly, they have at times expressed disinterest in stare decisis, which holds that opinions of the Supreme Court, once handed down, should be regarded as precedent and not reversed. When Susan Collins, for example, expresses that Roe v Wade is “settled law,” she is relying on stare decisis; there is, however, no law that requires the Supreme Court to uphold past precedent. Stare decisis is a norm, not a law, and we all know how political norms fare in our modern era —if you don’t, just ask Merrick Garland.
We on the Left should not only fear for Roe v Wade. We should imagine a future America in which the Supreme Court has eliminated the Endangered Species Act, Clean Air Act and Clean Water Act, tied the hands of the EPA (or erased it altogether), eradicated federal minimum wage, weakened or eliminated barriers to child labor and mandatory overtime, reversed same-sex marriage and reproductive rights protections, allowed private businesses to discriminate, and eradicated protections on the right to vote. That last point, in fact, seems almost a foregone conclusion: In an America where the electorate is increasingly out of step with the conservative agenda, the only way to protect Republican values is to keep people from the ballot box.
It is not entirely outside the realm of possibility that a court featuring five hard-right extremists in the mold of Sam Alito and Neil Gorsuch could fundamentally reshape the American legal framework. Much of current law, especially regarding federal regulations, relies on an interpretation of the Constitution’s Commerce Clause originating in a period between the late 1880s and the New Deal era of the 1940s. It’s an interpretation numerous Supreme Court Justices — Gorsuch and Thomas, in particular — have said they think was wrongly decided.
Certainly it seems extreme to imagine the Supreme Court reshaping American law in such a way, but that’s only because most of us haven’t seen it happen in our lifetimes — the truth is, such dramatic revisions have happened numerous times in the history of the United States. Many Americans don’t realize the very authority of the Supreme Court to review federal law doesn’t originate with the Constitution — it originates with a Supreme Court ruling.
Considering the current dynamics of the court and our politics at large — and the Constitutional Crisis currently raging around us — we should not regard this as a simple “shift to the right” that will otherwise look familiar. We should be asking how this shift plays into the stated conservative goal of a “Permanent Republican Majority,” and the consequences of a hard-right Court without regard for norms or precedent.
How would a five-conservative court respond to a potential impeachment of President Trump? How would they rule on the question of whether a President can pardon people accused or convicted of state crimes? How would they rule if President Trump challenged term limits, or announced his intention to suspend elections entirely?
These all sound extreme, almost unimaginable, but we do ourselves a disservice if we don’t imagine them — there is precedent, after all: Less than 20 years ago, a five-conservative majority on the Supreme Court agreed to overstep their power, halt a state election, and award the U.S. Presidency to the Republican candidate.
The potential consequences of a five-conservative Court are so dire, Democrats should do everything in their power to oppose the appointment of another extremist in the mold of Gorsuch or Alito — including halting Senate business, if things come to that. Instead, they should demand a centrist candidate, someone who pledges to uphold norms and precedents, even if they do bring a right-leaning philosophy to their rulings. This happens to be the very tactic employed by President Obama, after the unexpected and untimely death of Justice Antonin Scalia: Instead of appointing a liberal judicial activist, Obama brought forward a measured centrist in Merrick Garland, a man Republicans had previously praised as a potential nominee.
If I could choose the Democratic strategy, that’s the compromise I would offer: President Trump should nominate Merrick Garland. In many ways, he is the ideal candidate: Endorsed by Republicans, nominated by a Democrat, a centrist who leans toward neither extreme, and therefore well-suited to replace Anthony Kennedy as a likely swing vote. It would carry the added benefit of mending a political wound that will otherwise endure for decades.
Trump should nominate Merrick Garland, or someone in a similar mold. If he doesn’t, if he nominates another right-wing extremist, Democrats in the Senate should — must — do everything they can to block it.
It might be the last meaningful fight they get to mount.