So, you might have heard Justice Kennedy is retiring. The news was hard to miss, given the gnashing of teeth on the left and the gleeful anticipation on the right. For the most part, this isn’t really much to worry about, and the people claiming it’s the end of the Republic are being petty and disingenuous.
Let’s all take a deep breath here. In. Out. In. Hold it. Out. Now jazz hands. OK. Let’s talk this through like grown-ups.
This should come as a surprise to absolutely nobody. Kennedy has been making noises about retirement for at least three years. The idea that this blindsided the DNC leadership means that they’ve hidden their heads in the sand under the impression he’d wait out Trump’s first term. That was beyond stupid. The fact they’re unprepared for this means they’re still laboring under the same smug complacency that has bled the party dry at the state level over the last decade, and the same one that led them to nominate an awful, untrusted Presidential candidate who couldn’t beat Donald J. Trump in a general election.
The Democratic party lost, and more badly than they’ve been willing to acknowledge. Now they lack the power to stop President Trump from nominating pretty much anyone he wants to take Kennedy’s seat.
In 2013, Senate Majority Leader Harry Reid chose to repeal the filibuster for judicial appointments. The Democrats were warned that would come back to bite them. They didn’t seem deterred. They didn’t seem to demonstrate any foresight whatsoever. In fact, the strongest admonition came from Senator Mitch McConnell. They don’t get to cry foul now; McConnell is just gaming the system they set up.
President Trump only needs 51 votes to seat a new Justice. Republicans hold 51 Senate seats. Thank the Democrats for that.
Does this mean gay rights are out the window and legal abortion is a thing of the past? Absolutely not, and anyone who tells you that is either lying or woefully misinformed about basic civics. Watching cable news lately, I can’t tell which factor it is, but a change of one Justice isn’t enough to do that.
The Supreme Court’s very authority as arbiter and interpreter of the law rests on the concept of stare decisis. When they make a rulilng, it is expected to be the defining, permanent interpretation. A court that overrules its own decisions in accordance with political winds or personnel changes stands to lose that credibility. In short, there’s no scenario in which Roe v. Wade or Obergefell v. Hodges or DC v. Heller simply get thrown out.
What this may do is shift the court’s judicial philosophy a bit to the right in future cases. Then again, it might not. Recommending Justice Souter for the court, Chief of Staff John Sununu presented him to President Bush as a “home run for conservatism.” He turned out to be quite the moderate, even going against the conservative bloc in the Heller and McDonald decisions. We could get a centrist. We could get a conservative who agrees with the liberal bloc on some issues.
And that’s exactly what Kennedy was. He ruled in favor of gun rights and supported gay marriage. He ruled against capital punishment but in favor of corporate campaign donations.
Nobody can make any realistic predictions at this point, and it could be years before a new Justice makes any significant waves.