My thanks to Craig Fahle of the Craig Fahle Show and to Devin Scillian, host of Flashpoint on NBC 4 in Detroit. Both invited me to discuss Justice Kennedy’s retirement (Craig Fahle Show here; Flashpoint here) Craig and Devin are both intelligent and skilled interviewers, and I enjoyed being on their programs this past week.
Now that we have had a few days to digest the news, here are a few initial thoughts on Kennedy’s retirement, some of which overlap with my media appearances and some of which go farther.
First, conservatives are rightly excited about this opportunity, and Liberals rightly concerned. But whether this vacancy causes truly seismic shifts in constitutional law will depend upon several factors, some of which may be unforeseeable at this moment.
Justice Kennedy confounded labels, but he voted with conservatives in numerous cases that are important to the Legal Right (see, e.g., United States v. Lopez, the dissent in NFIB v. Sebelius, Citizens United v. FEC). In cases where Kennedy stayed to the Right, it is unlikely that his departure will result in much change to those areas of constitutional law. As others have duly noted, the more dramatic shifts will have to occur in areas of individual rights where Kennedy took positions at odds with the Court’s conservatives (e.g., abortion, LGBT rights, the Eighth Amendment, etc.).
But even here, Kennedy confounds. Compare and contrast, for example, his vote in Casey with his vote in Gonzales v. Carhart; or his votes in Atkins, Simmons, and Kennedy with his refusal to join the new movement against the death penalty’s constitutionality per se; or his votes in Gratz and Grutter with his vote in Fisher II. He’s no darling of conservatives, but he also was no perpetual villain.
Moreover, cases do not magically appear at the Supreme Court for resolution. These issues often take years to wind through, and percolate in, the lower court systems. And even then, the Supreme Court may not be ready to address the issue, or it may come to the Court in a form that makes it undesirable as a vehicle for resolving a particular issue.
So, how strongly that the Earth quakes this Fall may depend very much upon the subject matter under consideration, whether and how the issue arrives at the Court, and whether the Court is prepared to take up an issue that may have enormous social and political consequences.
Second, whether the ground quakes in these areas of law may, as some of the public conversation is describing, also depend upon whether the need to placate Senators Collins and Murkowski (or others) will result in the nomination of someone who will commit to respecting the Court’s precedents on abortion rights or some other matter. But it may also depend upon whether Chief Justice Roberts emerges as a Kennedy-esque swing vote, a matter that is often overlooked in the public debate over the next nomination. The Chief may not be nearly so confounding as Justice Kennedy, but I question whether he is as predictable as, say, Justices Thomas or Gorsuch.
As I have suggested, I think that the Chief cares deeply about the Court’s integrity and institutional legitimacy. In some cases, that may mean upending bad precedents (his opinion in Trump v. Hawaii, for example, expressly disavowed the notoriously wrong Korematsu decision). But in other cases, it may mean looking at the broader political and social consequences of the Court’s decisions. Recall that Chief Justice William Rehnquist repeatedly questioned the status of Miranda v. Arizona as a constitutional rule. Then, when the question was put squarely before the Court in Dickerson v. United States, Rehnquist wrote the opinion for six other justices that said Miranda was a constitutional rule.
So while it is likely that Chief Justice Roberts remains a solid conservative vote, it is also likely that Roberts—who clerked for and then succeeded Rehnquist — has a sense of the political times in which we live, and the role of the Court in those times. If Roberts carries the mantle of judicial statesmanship, it may be he — not the latest Trump appointee — who holds the Court’s future in his hands.
Third, Republicans may be celebrating, but they should view this moment with some trepidation. In recent elections, voter energy with respect to the Supreme Court has generally favored Republicans. All of that energy was leading to this moment, which should be gratifying to those who have voted Republican because of this issue (including those Republicans who despise Donald Trump but voted for him solely on the basis of potential Supreme Court picks). But once the moment passes, what then? If the President fills Kennedy’s seat with a reliable conservative, and that happens in, say, September, where does the energy on that issue go when the midterms arrive in November?
One plausible scenario is that Republican intensity on this issue will be diminished once conservatives have amassed five reliably conservative votes on the Court. Voter intensity with respect to the Court, then, will naturally shift to the Left, so the argument runs. And if the Left can mobilize voters on this issue in much the same way that the Right did for so many years, the political effect of the Kennedy retirement could be that it helps Democrats, at least in the short run. Republicans could counter this with a narrative that continues to make the Court important to their voters — to say that, among the Court’s conservatives, one of these is not like the others, so future reinforcements are necessary. Problem is, that messaging would contradict the other messaging that says the Court is now firmly in reliable conservative hands.
So although this is a proud and important moment for legal conservatism in America, it could actually be a galvanizing moment for Liberalism and the Democratic Party, if the Left can follow the Right’s playbook effectively.
Finally, Justice Kennedy was known as a good and decent man who valued civility in public life. In that sense, the contrast with the man who will appoint his successor could not be more stark. As someone who worked on many cases at the Court — and who now teaches students about the Court and its role in American law and life — I join others in expressing my gratitude to Justice Kennedy for his distinguished service, and for his commitment to civil discourse about the Constitution and the rule of law.