After a Supreme Court term that saw one conservative victory after another, the final blow fell on Wednesday afternoon: Justice Anthony Kennedy (who has been the median vote on the Supreme Court since the retirement of Sandra Day O’Connor in 2006) announced his retirement. It is almost impossible to overstate the significance of this.
Anthony Kennedy’s legacy could have been as a conservative respected for providing key votes to uphold a woman’s right to choose and the right to same-sex marriage. Instead, he shall be remembered as one of the most important allies of President Donald Trump’s pro-business white nationalism.
Trump’s party will now be firmly in control of the Supreme Court and, as this term’s (in)decisions indicate, it will be determined to make the democratic defects of the American system all the worse for partisan gain.
The most obvious result of Kennedy's retirement is that Roe v. Wade will die, perhaps as soon as next year. It may not happen in one fell swoop with an immediate decision explicitly announcing that Roe v. Wade is overruled; the court may choose to take a case that, say, bans abortion after 10 weeks from a woman’s last period and uphold it without explicitly overturning Roe. But a Supreme Court with a second Trump vote will not vote to strike down any restriction on abortion, no matter how rooted in pseudoscience, false concerns for women’s welfare or the religious beliefs of the policymakers. The only question is whether a woman’s right to choose will be slowly tortured to death or is given a quick execution and buried in an unmarked grave.
And make no mistake: The end of the federal acknowledgement of a woman’s right to choose will have a major and negative impact on American women. Women in liberal states and women who can afford to travel there will have access to safe abortions. In many states, however, women — especially poor and rural women — will not. Kennedy’s retirement will put countless women in the position of carrying an unwanted pregnancy to term and/or trying to obtain a black market abortion; the most vulnerable women will be the hardest-hit.
The legacy of Kennedy’s opinion announcing a right to same-sex marriage in Obergefell v. Hodges is less clear. Republican elites in 2018 are less hostile to same-sex marriage than they are to abortion rights. But it shouldn’t be considered safe, either: All three of the Republican nominees still on the court dissented in that case, and it is highly unlikely that Trump’s ultrareactionary nominee Neil Gorsuch would vote to uphold it. Marriage rights, like reproductive rights, may hinge on your state of residence.
And this just scratches the surface of what Kennedy’s retirement will mean. Kennedy, for example, was the sole Republican nominee who believed that affirmative action by public institutions was permissible in some circumstances; his replacement almost certainly won’t. So, we will have a Supreme Court that, on the one hand, ignores the overwhelming evidence of anti-religious animus in Trump’s travel ban and discriminatory intent when states disenfranchise minority voters but will, on the other hand, find attempts to make schools more racially integrated uniformly unconstitutional, standing the purpose of the 14th Amendment on its head.
More broadly, since early in the Nixon administration, the court’s swing vote — and thus its control — has been a country-club Republican who was liberal on at least some issues, like Kennedy, O’Connor and Lewis Powell. Those days are gone — they’re basically an extinct species and, if any still existed, Trump wouldn’t nominate them and a Republican Senate wouldn’t confirm them. The best chance for a liberal-leaning median vote for the foreseeable future was lost when Mitch McConnell prevented a Senate vote on Barack Obama's replacement for Antonin Scalia. The median vote on the Supreme Court will now be either a liberal like Elena Kagan or a true conservative like John Roberts or Samuel Alito.
Of course, as Kennedy demonstrated particularly forcefully this term, his liberal votes have always been an aberration; he’s a reliable conservative vote on most issues. The even larger significance of Kennedy’s retirement is the extent to which it entrenches a conservative majority on the court, which will have far-reaching effects on both American politics and the future of the court.
Justice Clarence Thomas, still only 70, is the oldest Republican remaining on the court. The other four will be on the court for a long time yet barring force majeure. And should Trump be able to replace the 79-year-old Stephen Breyer or 85-year-old Ruth Bader Ginsburg, Republicans would have a hammerlock on the Supreme Court for at least a generation, even though the coming generations are more liberal on issues like same-sex marriage and abortion than the ones currently in control.
What’s particularly disturbing about this is that Republicans have gotten its firm hold on the court despite lacking a popular mandate. The Republican Party has lost the popular vote in six out of seven presidential elections, and is relying more and more on the race-baiting of Trump and his allies to bring supporters to the polls because its domestic agenda is highly unpopular. The party is also relying increasingly on vote suppression of nonconservative racial minority groups rather than attracting voters to stay in power, most recently with the assistance of a Supreme Court that is at war with the Voting Rights Act and unwilling to overrule even the most egregious partisan gerrymanders.
This has the possibility to create a constitutional crisis. If the next Democratic Congress is prevented from enacting much of its agenda by a partisan Supreme Court, this may lead to court-packing or other serious retaliation against the judicial branch. By handing a president not chosen by the people a second Supreme Court nomination, Anthony Kennedy’s ultimate legacy may be the destruction of the court as we know it.
Scott Lemieux is a lecturer in the Department of Political Science at the University of Washington. He is the co-author of Judicial Review and Democratic Theory and contributes regularly to The Week, Reuters and the New Republic.
