The retirement of Justice Anthony Kennedy from the Supreme Court has had the effect of a grenade tossed into our already chaos-ridden public discourse.
The Daily Beast’s Michael Tomasky has written that Kennedy’s name will “live in infamy” for stepping down before the November election, which may make it harder for President Donald Trump to get a Supreme Court nominee confirmed. There are even bizarre conspiracy theories about Kennedy’s collusion with Trump, somehow linked to the fact that Kennedy’s son Justin used to work for a bank that gave Trump a loan (even though there’s no evidence that Justin Kennedy had a connection to that loan). But beyond the panic and the wild speculation, what will Kennedy’s decision mean for the high court and for America?
Kennedy has been viewed as an especially pivotal figure because, on a divided court, he was the swing vote in several key cases on important issues: on abortion rights, same-sex marriage, and affirmative action, where he voted with the liberals, and on gun rights, where he voted with the conservatives. As such, he was seen as the guardian of a fragile balance between the right and the left. Is there anyone else prepared to take over such a role?
While many have dismissed Chief Justice John Roberts as a possible candidate for such a role because of his strong conservative views, to rule out the possibility of a centrist Roberts is to have a short memory. Only a few years ago, after Roberts provided the swing vote in the 2012 decision that saved the Affordable Care Act, the conservative media repeatedly denounced him as “wobbly” and castigated him for siding with liberals (not only on Obamacare but on other issues including a death penalty case). In 2015, National Review columnist Kevin Williamson lumped Roberts and Kennedy together as two faux conservatives always inclined to uphold a Washington, D.C.-area “Starbuck-customer consensus.”
Will Roberts, who refused to kill Obamacare, be willing to rule against Roe v. Wade (which even many pro-choice legal scholars concede is bad constitutional law)? Writing in The New Yorker, noted legal analyst Jeffrey Toobin argues that Roberts’ recent vote against compulsory public-sector union dues, which overrules a precedent almost as old as Roe, indicates his readiness to throw out settled law. But the comparison is a stretch. Union dues don’t generate high passions; abortion does. Currently, two-thirds of Americans oppose overturning Roe. If constitutional protections for abortion rights are struck down and the issue goes back to the states, we can expect 50 political war zones — and a massive backlash against the Republican Party. That prospect will certainly be on Roberts’ mind if a challenge to Roe comes before the court.
In a tweet linking to his article, Toobin listed other horrors a post-Kennedy Supreme Court could inflict: “Gay people barred from restaurants, hotels, stores; African-Americans out of elite schools; gun control banned in 50 states.” It’s an absurdly apocalyptic vision that lacks only witch-burnings in city squares. Currently, gay people are not getting thrown out of restaurants or hotels even in states that don’t ban discrimination based on sexual orientation, and state bans on race-based affirmative action have not caused African-Americans to disappear from elite schools.
There are excellent reasons to be concerned about the direction of the high court and to scrutinize the soon-to-be-revealed nominee closely. But no one is helped by over-the-top fearmongering and warnings that women, minorities, and gays are one Supreme Court seat away from losing their civil rights.
Cathy Young is a contributing editor to Reason magazine.