If the last few days hadn’t been dispiriting enough for those who believed the Supreme Court could still stand for reproductive freedom, equal rights for all Americans, a check on presidential power, a more humane criminal justice system and so much more, Wednesday afternoon brought the coup de grâce.
Everyone knew it was coming sooner than later, but Justice Anthony Kennedy’s retirement, which he announced in a letter released hours after the court had issued its final rulings of the term, is still crushing. It sends a stark message to the tens of millions of Americans who have long turned to the court for the vindication of many of their most cherished rights and protections: Look somewhere else.
That place is the ballot box. So show up and vote. In the absence of a Supreme Court majority that will reliably protect human dignity, universal equality and women’s right to control their own bodies, it is up to Americans who cherish these values to elect politicians at every level of government who share them.
Justice Kennedy, who was nominated to the court by President Ronald Reagan and confirmed in 1988, defended these values, however imperfectly. He was the last in a line of Republican-appointed justices who moderated some of the reactionary tendencies on the court, which has now had a majority of Republican appointees for nearly half a century. All of those justices were confirmed in the days before ultraconservative activists hijacked the nomination process and ensured that only faithful right-wing ideologues would get a nod. With Justice Kennedy’s departure, the court is very likely to lock in an unmoderated, hard-right majority for the rest of most of our lives.
It is a dark moment in the history of the court and the nation, and it’s about to get a lot darker. Once President Trump names his second pick and the Senate confirms that person, you can forget about new or enhanced protections for gays and lesbians, or saving the last shreds of affirmative action at public universities. Longstanding precedents are now at extreme risk. Foremost among these is a woman’s right to choose to have an abortion under Roe v. Wade, which was preserved solely on the strength of Justice Kennedy’s vote.
Meanwhile, count on more rulings that, like Monday’s decision upholding racial gerrymandering in Texas, give states the green light to cut back on voting rights, promote the rights of corporations over individuals, further erode the wall between church and state and look the other way when states cut corners and evade constitutional requirements in order to execute their citizens.
Even this scenario, of course, assumes the continued longevity of Justices Stephen Breyer and Ruth Bader Ginsburg, who provide an essential counterweight to the court’s conservative wing, but who are 79 and 85, respectively, and have endured their share of health problems. If either leaves in the next few years and is replaced by President Trump, the court will easily become the most conservative in American history.
The Supreme Court is designed as a countermajoritarian institution, and operates as a crucial check in a democracy based on majority rule. Still it is hard to swallow that this court is about to solidify a deeply conservative majority, despite the fact that in six of the last seven presidential elections, more Americans have voted for a Democrat than for a
Under the arrangement that sustained the legitimacy of the court for generations, until last year, the replacement of a swing justice would trigger a battle in the Senate, as the minority party wielded the threat of a filibuster to head off any ideologically extreme nominee. That won’t be happening this time. Senate Republicans killed the filibuster for Supreme Court justices last spring on their way to installing Neil Gorsuch, the ideologue for whom they had already stolen a seat that rightly should have been filled by President Barack Obama, and who could sit on the court for 40 years.
Mitch McConnell, the Senate majority leader, who put up that blockade despite the damage it inflicted on two branches of government, is celebrating now. He knows he has an open road to confirming whomever he and the Federalist Society want on the bench. Of course, it would take only a couple of Republican senators — say, Bob Corker and Jeff Flake, both of whom are retiring and have been very critical of Mr. Trump, or Susan Collins and Lisa Murkowski, who have supported abortion rights — to force the president to pick someone who at least approximates a moderate.
That person should be at least partly in the mold of Justice Kennedy, who, while far from an ideal justice — his opinions could be vague and confusing, his jurisprudential commitments often unpredictable — emphasized the basic principles of equality and dignity to a degree not in evidence among the court’s four other conservatives.
Consider a few of Justice Kennedy’s most significant majority opinions and votes: He protected reproductive rights and saved Roe v. Wade from being effectively overturned. He led the way in recognizing the equality and dignity of gays and lesbians and, in 2015, granting same-sex couples the constitutional right to marry. He preserved the use of affirmative-action policies at public universities. He spoke out forcefully on the need to fix the nation’s broken criminal justice system, voting to strike down excessive sentences for juveniles and the intellectually disabled and to force states to shrink their overcrowded prisons. He gave prisoners held at the Guantánamo Bay detention center the right to habeas corpus, rejecting the executive branch’s attempt to create a legal black hole beyond the reach of any court.
On the other hand, he wrote the majority opinion in one of the most damaging decisions in the court’s modern history, Citizens United, which opened the floodgates to unlimited spending in political races by corporations and labor unions. And he provided the key fifth vote to the court’s 2013 gutting of the Voting Rights Act, which has allowed states across the country to make it harder for people, especially minorities, to vote. In the last few weeks alone, he voted to protect a Christian baker who refused to bake a wedding cake for a gay couple, he voted to uphold President Trump’s travel ban and he declined to rein in partisan gerrymandering, one of the most corrosive and anti-democratic practices in modern America.
Still, Justice Kennedy played a critical tempering role on a court that has become, like the nation as a whole, increasingly entrenched along political lines. Even with him on the bench, the most liberal conservative voted to the right of the most conservative liberal. Without him, and thanks to Mr. McConnell’s nakedly cynical ploy, any remaining sense that the court can exist apart from partisan politics is gone.
For those who face the future in fear after Wednesday, there are no easy answers — but there is a clear duty. Do not for a moment underestimate the importance of getting out and voting in November. Four years ago, only 36 percent of Americans cast ballots in the midterm elections. Had more people showed up, the Senate may well have remained in Democratic control, Mitch McConnell would not be the majority leader and Judge Merrick Garland would now be Justice Garland. In the days and months ahead, remember this.