Thoughts on the Retirement of Anthony Kennedy

Anthony Kennedy’s retirement this week is the worst possible thing that could happen to the Supreme Court if you are a liberal.  Though he was certainly a conservative justice Kennedy was, since the retirement of Sandra Day O’Connor, the key vote in a number of decisions on the Roberts court that went the way progressives would have wanted.  On abortion, gay rights, environmental regulations, and any number of other topics, Kennedy was able to join with the Court’s four liberal justices.  Here are some sort-of-random thoughts on Kennedy’s retirement.

1.  He will be replaced before the elections this November.  McConnell’s declaration about not confirming Supreme Court justices before elections was just hot air to begin with.  Unless two Republicans grow a conscience, and nothing about this Senate GOP class inspires any confidence of this, Trump will nominate and the Senator will rubber-stamp.  Democrats can complain.  They can refuse to participate.  But the reality is that they have NO power in this situation and voters need to realize this.
2. The new justice will be young.  A lot of people are talking about Mike Lee, Senator of Indiana.  At 47, he could potentially serve as justice 40 years, influencing American life in ways that will surely run counter to the desires of a majority of American citizens.
3. Kennedy’s replacement means a solid 5-4 conservative majority.  As we’ve seen in recent weeks, Kennedy was able to join the conservatives on “religious liberty” (anti-gay) issues, anti-union issues, and affirming the president’s travel ban.  The new justice will likely be an ideologue in a way that Kennedy is not.
4.  Roe v. Wade is dead.  Abortion will return exclusively to the control of the states.  In many states, there are trigger laws on the books that will make abortion illegal in the event Roe is overturned.
5. State elections in the next few years are more important than ever.  Republicans have been playing the long game, controlling 28 state legislatures entirely.  If the right to choose, among other rights, is to be kept alive in the states, Democrats have to contest every seat and, more importantly, find a way to win.
6. Winning state elections in red states means overcoming gerrymandering.  Republicans have been very good at drawing seats to partisan advantage.  Even with Kennedy, the Supreme Court hasn’t been much help and I can’t imagine a Trump nominee having any sympathy at all for those effectively disenfranchised by gerrymandering.  The Census is coming up, and this means shifts in the number of representatives by state.  But reapportionment (as we here in North Carolina can attest) doesn’t just have to happen following enumeration.  Democratic loss at state levels will probably lead to a greater emphasis on drawing districts to partisan advantage, with zero chance for relief at the High Court.
7. Equal representation is not in the Constitution.  All Article One states is that representatives are apportioned to the States based on population; it does not provide guidance on how districts should be drawn.  There is a body of case law, most famously Baker v. Carr and Reynolds v. Sims that establish the principle of “one person, one vote” in drawing up districts for the House and for state legislatures.  These cases arose to challenge districts drawn to maximize rural (read: white) voting power against urban (read: minority) voting power.  Any court decision can be overturned; all that’s needed is five justices willing to overturn it and we can add uneven districts to the undemocratic advantages of rural voters.
8. Eliminating “one person, one vote” will probably seem attractive.  Republicans have effectively given up on courting African American and Hispanic voters, tying their destiny to white people, who are in demographic decline, embracing white supremacy as a guiding principle.  Redrawing districts, eliminating the requirement of equal representation, voter ID laws, voter roll purges, and removing felons from the voting rolls are all tools that can be used to dilute the power of urban and minority voters.  Got a problem with it? Take it to the Supreme Court.  Oh, wait, you won’t be able to, because the conservative majority won’t give a damn.
9. While we’re at it, let’s talk about your rights as a citizen in general.  There are really no such things as “rights.”  There are only courtesies we extend as citizens to one another that have the force of law.  The Constitution doesn’t determine what those are, much though we might like to believe the contrary.  Our rights exist only inasmuch as five justices on the Supreme Court are willing to say they exist.  Everything is up for grabs.
10. Did I mention state elections?  They are now more important than ever.  A Trump appointee means that the federal government can no longer be counted on to be the bulwark of individual liberty.  That burden now falls to the states and history does not inspire optimism. 

Of course, everything could change if Trump were impeached.  But Trump isn’t going to be impeached, for reasons I’ve laid out elsewhere.  In short impeachment is a political process; “high crimes and misdemeanors” are exactly what a majority of the House and two-thirds of the Senate say they are.  Even if Democrats capture both houses in the fall, the best they can do is bring charges against Trump.  They cannot get enough seats in the Senate to remove him from office.  So if you’re waiting for Robert Mueller to ride to our rescue, cut it out.  The only way we pull back from the abyss is to vote for Democrats, even Democrats you’re not totally on board with.  Because Trump could get more appointments, and Ruth Bader Ginsburg is 85 years old.