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A Premature Burst Of Hyperbole

Anthony Kennedy and Neil Gorsuch
Justices Anthony Kennedy and Neil Gorsuch in April 2017. Photo courtesy the Supreme Court of the United States.

In the wake of Justice Anthony Kennedy’s announcement that he plans to retire at the end of July, many scribes and talking heads immediately reached for hyperbole.

The level varied, ranging from the Miami Herald characterizing President Trump’s next court pick as “pivotal” to U.K. publication the Independent’s headline: “Justice Anthony Kennedy retires: Why this could change the face of America and what Trump will do now.” Both those who are elated at the prospect of another Trump Supreme Court pick and those who are horrified by it have discussed Kennedy’s departure as a seismic shift in the status quo. Trump, the theory goes, now has a chance to reshape the Supreme Court for decades to come.

This is overstated. Trump may eventually get the opportunity to profoundly reshape the court, but Kennedy’s retirement is not that opportunity.

Kennedy long filled the role of the “swing” justice, sometimes siding with the four reliably liberal justices to give them a majority. But history suggests that Chief Justice John Roberts is already poised to step into that role in certain situations. Roberts saved the Affordable Care Act more than once, earning the ire of conservative legislators into the bargain. Even if he is still generally conservative overall, his track record has drifted slightly left since his 2005 appointment.

In addition, while Kennedy sided with the liberal justices in plenty of situations, many of those represented largely subtle areas of the law, or areas that have now been effectively decided. For example, despite the worries of LGBTQ advocates, it is hard to picture the court revisiting the matter of same-sex marriage, no matter who Kennedy’s replacement is; it is here to stay, especially given the continually growing support for it among the American public.

It is true that Kennedy was a core vote to preserve Roe v. Wade, a point many of those distressed by his retirement have made. But Kennedy was willing to compromise around the edges of Roe’s reach. While he famously preserved Roe in 1992, he also voted to uphold a variety of state-level restrictions on abortion during his tenure. As I recently observed in this space, Roe v. Wade was already in trouble, even before Kennedy decided to step down. In some ways, Roberts’ commitment to precedent may prove to be as solid a defensive wall around Roe as Kennedy’s swing vote.

Apart from abortion and a few other issues, the court has effectively had a 5-4 conservative majority during much of Kennedy’s 30-year tenure. It will remain a 5-4 conservative majority after Trump selects, and the Senate confirms, his replacement. The real question is what will happen with the court’s liberals going forward.

Justice Ruth Bader Ginsburg is 85 years old. By the time the Supreme Court returns to session in October, Justice Stephen Breyer will be 80. The departure of either one, voluntary or otherwise, at a time when Trump is president and the Republicans hold a Senate majority would truly reshape the court for many years to come.

Though Justice Clarence Thomas will be the most senior justice by tenure once Kennedy departs, he is only 70 years old. President George H.W. Bush was so determined to replace Justice Thurgood Marshall with another African-American justice who was Marshall’s political opposite that he picked Thomas despite the fact he was underqualified, though some would argue that Thomas has grown into his role over time. Should Thomas choose to retire in the near term, Trump could replace him with a conservative justice with more tread life. But there is no sign Thomas is contemplating a departure, and he is only two years older than Justice Samuel Alito, a conservative appointee of President George W. Bush.

Of course there will be an enormous political fight over a new Trump appointee, regardless of how much Kennedy’s departure actually matters in real terms. But there is every reason to believe Senate Majority Leader Mitch McConnell will shepherd the next justice onto the court as quickly and efficiently as he did Justice Neil Gorsuch. It is not unlikely that the Senate could confirm a new justice by the beginning of the October term, especially as current rules mean Republicans don’t need any Democratic support at all as long as their own party members hold the line.

With a 51-49 GOP majority in the Senate and Arizona’s Sen. John McCain ailing, the person potentially holding the balance of power is Sen. Susan Collins, R-Maine, who many characterize as a RINO – “Republican in name only.” If the Democrats were unified against a particular Trump nominee, Collins is who they would most likely lobby. But unity for Senate Democrats at the moment is unlikely. Three Democrats defected to confirm Gorsuch; those three, plus a couple more in red-leaning states, will be under significant pressure to support the next conservative pick going into this fall’s midterms.

During his 30 years on the Supreme Court, Kennedy was pivotal to both liberal and conservative victories. He has made the most of some opportunities and squandered others. But while his tenure undoubtedly holds historical significance, observers on both sides of the aisle should resist giving his departure more weight than it deserves.

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