The U.S. Supreme Court, which has been trending conservative for the last couple of decades, is about to become firmly so with the pending retirement of Anthony Kennedy.
Overall, that should be a good thing.
When the court was more activist, as it was in the 1970s and 1980s, it was more inclined to make law than interpret it. That created decisions that were heavily based on producing outcomes that the justices felt were best for society, rather than following what the Constitution or existing federal laws called for.
The 1973 Roe v. Wade decision is the most obvious example. By fabricating a right to privacy that doesn’t exist in the Constitution, the court legalized abortion on demand everywhere in the United States — a decision that still 45 years later has not gained legitimacy with a good portion of this nation.
Kennedy, 81, has been the unpredictable swing vote on the court for decades. Sometimes he has sided with the liberals, as he has done on abortion rights and gay rights; sometimes he has sided with the conservatives, as he has on gun rights and campaign finance.
Most recently, he has been more in the conservative camp than the liberal one. In decisions released during the same week as his retirement announcement, Kennedy cast the swing votes in upholding President Trump’s travel ban on several mostly Muslim countries and in preventing labor unions from forcing workers to contribute to them.
In what may be the biggest gift to conservatives of all, Kennedy apparently timed his departure so that President Donald Trump could get his nominee through the Senate while it still has a razor-thin Republican majority rather than risking a Democratic takeover in November that could block Trump’s nominee.
One reason that Trump, an unconventional GOP choice if there ever was one, won the 2016 election is because traditional Republicans knew there was a vacancy on the high court and they had more confidence in Trump’s possible choice than Hillary Clinton’s.
Trump justified their faith with his first nominee, Neil Gorsuch, an erudite jurist who reads the Constitution literally rather than how he or anyone else might like it to read.
If the president does as well with his second nominee, it could figure significantly in the 2020 elections.
Most of the older judges on the court are Democratic in philosophy. While they are trying to outlast Trump, there’s only so long they can defy the creep of time. The president could again persuade voters who are uncomfortable with him to hold their nose and give him a second term.
If Trump wound up with three of four appointments over the course of a two-term presidency, he could assure conservative control of the court for a generation or more.
— Tim Kalich
