In the span of four hours of Anthony Kennedy retiring I have seen multiple articles on the midterms of 2010 and 2014 being the reasons for Democrats current dilemma, how cynical Mitch McConnell was in 2016, and how a new conservative majority will reign for a generation on the court (never-mind Justices Thomas is in his eighties). On social media, conservatives are jumping for joy and liberals are acting like the second coming of the apocalypse is upon us.
But beyond my immediate circle of acquaintances and the left leaning media going all doom-saying Kennedy’s retirement is undeniably a massive lift for the GOP in a touch election year. On several levels, Kennedy’s retirement is a win for the GOP beyond judicial circles.
But, the impact this will have on the Court cannot be understated. Kennedy, was a swing justice, but he also leaned rightward. Recently he has alternated between being more moderate and more conservative. Take for instance his 2015/2016 term where he sided with the court’s liberals to legalize gay marriage, support affirmative action in higher education, ensure “disparate impact rules” in housing are enforced and strike down Texas’s abortion law. Merely a year later for this term he gave conservatives victories on gerrymandering, the VRA, union dues, the travel ban and more.
As Slate put it, “It was always more fan fiction than reality that Justice Anthony Kennedy was a moderate centrist. Democrats liked to soothe themselves with the story that Kennedy was a moderate because he’d provided the fifth vote to support continued affirmative action, reproductive rights, and gay rights and had strung the left along with the tantalizing promise of someday finding an unconstitutional political gerrymander. But we always knew that Kennedy was a conservative, indeed a very conservative conservative. Recall that in the famous study done in 2008 by Richard Posner and William Landes, “Four of the five most conservative justices to serve on the Supreme Court since the time of Franklin Roosevelt, including [John] Roberts and [Samuel] Alito, are currently sitting on the bench today.” And Kennedy? He was ranked in that study as the 10th most conservative justice in the past century.
This fits Kennedy’s pattern. He has alternated between more moderate and conservative years but he is a conservative all the same. Think Citizens United in 2009 but the ACA in 2013. As a writer once described Kennedy, he is a fiscal libertarian but a social moderate. Hence, it makes sense on abortion, housing issues and gay marriage he might be squeemish but on economic, voting rights and union dues he is a rock solid conservative.
Regardless, Kennedy had somewhat telegraphed he might retire. On a spate of high-profile issues, the more conservative leaning jurist seemed to be shoring up his legacy in preparation for stepping off the High Court. Turns out the rumors he was retiring turned out to be true.
Conservatives have a reason to cheer. It is likely they will be able to push through a more conservative jurist before or after November. The odds are good this justice resembles the former Scalia and current Gorusch in they are not a bomb-thrower but legally conservative and good at hiding how conservative they are. Short of a Democratic wave come November that saves enough red-state Democrats to give them a majority in the Senate, odds are good moderates in the GOP Caucus would fall in line with supporting a staunchly conservative nominee. I bet, right now, dreams of overturning Roe vs. Wade, repealing the ACA, etc. are dancing through their heads.
Beyond the judicial and policy impact of Kennedy’s retirement though is the boon it will be to Senate Republicans decent but not great hopes of retaining the Senate. Only due to the map so favoring Republicans do they stand a chance of holding the upper chamber.
For Republicans, Kennedy’s retirement is a win-win. The party wins on policy but electorally they also win. Polls have shown Democrats are more excited to vote this November and short of Trump the GOP needs something else to excite their voters. They have it in an open Supreme Court seat. Indeed, exit polls from 2016 found conservatives and Republicans were far more likely to say they voted for Trump over the Supreme Court than Democrats for Hillary.
In states such as Arizona, Tennessee and Nevada, one deeply red, one light blue and one purple the GOP needs something to gin up their base. They have it. In Tennessee, they also now have an issue to bludgeon former Governor Phil Brederson with who will not be able to say he would support a Trump nominee due to losing liberals in the cities and in turn highlight how much more liberal he is than the average Tennessean.
Expect Brederson to not be an aberration. In West Virginia, Montana, North Dakota, Indiana and Missouri, Democratic incumbents will be forced to either voice opposition/support or vote for or against a conservative jurist to the Supreme Court. If Trump and McConnell are smart, they will pick a young, impeccable conservative jurist who mimics Gorusch and is hard to vote against in a red state.
Republicans cannot lose in such a scenario. Either a Jon Manchin or Joe Donnelly votes for a Kennedy replacement just to try to survive November or they do not and are passed for opposing the President and being out of step with their states. This, by the way, would be occurring right at time when voters would just be tuning into the midterm.
Hence, on all levels, Republicans win. That is unless Trump nominates either a fire-breather who not even Susan Collins or Lisa Murkowksi can get behind or a moderate who divides the GOP Caucus. Neither is likely with Trump already stating he will select a nominee from a list he developed during the 2016 campaign or a second list announced in 2017 from which Neil Gorusch was selected. There are very few names on the list conservatives lose with and with an entire right-wing apparatus in place to push the nominee it is even less likely anybody in the GOP Caucus dissents.
Of course, I would be remiss if I did not advise caution is in order on both fronts. The electorate, despite its partisan loyalties, is unsettled. Trump could overreach with his replacement. Maybe Democrats somehow block Trump’s replacement and win the majority in November. Neither is likely but the wild swings we have seen in politics of late suggest anything is possible.
It’s likely that while the move benefits Republicans electorally their wildest dreams won’t come true. Sure, the Roberts Court has removed limits on campaign finance, overturned parts of the VRA and made mandatory union dues illegal. But, on dozens of other cases, the Court has taken a more measured, limited approach. Especially on issues such as abortion, healthcare and religious liberties which have social impacts as much as anything else. Conservatives surely will win on many of these types of cases going forward but their victory is unlikely to ever be total. Gay marriage is likely to stay the law of the land but religious liberty will also be more balanced regarding it. Roe might be limited but likely not negated. Ditto on other hot button social issues.
Still, Kennedy gave the GOP a major gift. This cannot be denied.