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SCOTUS Showdown: Kennedy Retires, Gives Trump Opportunity to Dramatically Reshape the Supreme Court

Today, U.S. Supreme Court Justice Anthony Kennedy announced his retirement from the bench. For the past 13 years, he’s been the key swing vote on a number of issues, from LGBTQ+ civil rights to environmental protection. But now that he’s leaving, Kennedy is giving Trump the ultimate opportunity to leave a lasting mark on this nation by cementing in place a right-wing majority on the nation’s highest court.

Who is Anthony Kennedy, and why does he matter?
Photo courtesy of the Oyez Project, licensed under Creative Commons, and made available by Wikimedia

After then President Ronald Reagan launched excruciating confirmation fight for Robert Bork that he ultimately lost, Reagan nominated Anthony Kennedy to the Supreme Court and scored unanimous approval from the Senate in 1987. Since then, Kennedy has generally managed to maintain a conservative majority on the court while simultaneously fending off a full far-right coup of the court.

In the years since, Kennedy has cast the deciding vote to protect LGBTQ+ civil rights, maintain some kind of legal right to abortion, declare that the EPA has the legal authority and responsibility to act on climate change, and place some limits on capital punishment and police authority. Going into this last term, progressives were hopeful Kennedy would maintain this delicate balance on the high court. They’ve been largely disappointed with his repeated siding with the court’s other conservatives to rule in favor of a business that openly discriminates against LGBTQ+ customers, rubber-stamp Donald Trump’s discriminatory immigration policies, and make it more difficult for public sector unions to remain financially viable. And now, Kennedy is leaving the Supreme Court in the hands of Trump and Chief Justice John Roberts.

With Kennedy leaving, Supreme Court may take a sharp right turn

With Kennedy departing, Roberts will probably become the new swing vote on the court. This alone likely moves the court’s balance of power further to the right, as Roberts has generally ruled in favor of business over consumers and government. In addition, Roberts’ consistent stance on minority rights makes for a bleaker future for LGBTQ+ civil rights, women’s rights, and racial justice.

And yet, Roberts is probably the only hope left for progressives. After all, Trump now gets to pick Kennedy’s replacement. And considering Trump’s promise to his right-wing base to select judges like Neil Gorsuch, it’s unlikely he’ll nominate a Justice more in the mold of Kennedy.

The political game and the legal danger ahead

Against this backdrop, expect a knock-down, drag-out U.S. Senate brawl over Kennedy’s successor. Thanks to recent rules changes that limit use of the filibuster, Senate Democrats face long odds in blocking anyone Trump nominates. Still, this is their one chance to exert any kind of influence over the future of the court… And really, the future of America. It just remains to be seen whether any Senate Republicans who’ve occasionally been critical of Trump make any objection to Trump’s pick.

Ultimately, U.S. Senator Dean Heller (R) was right about something. In April, he spread a rumor that Kennedy may retire. He then expressed hope that a new supreme fight over the Supreme Court will “get our base motivated”. His opponent, Rep. Jacky Rosen (D-Henderson), took to Twitter today to remind Nevadans of Heller’s supreme political gamesmanship.

In the coming days, we’ll see who gets more motivated. Anthony Kennedy just triggered a major shakeup of the American legal system and a massive political earthquake by announcing his retirement. Heller and other Senators are already trying to figure out how to use it to their political advantage. And now, millions of vulnerable Americans are left to wonder what will become of their civil rights in this strange new world.

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