Justice Kennedy's departure just raised the stakes even higher

Kennedy's Supreme Court departure just raised the stakes even higher
5 min read
28 Jun, 2018
Comment: Kennedy's departure renders many advances won through the courts vulnerable to reversal, writes Andrew Leber.
Trump now has a chance to cement a conservative majority on the Supreme Court [Getty]
The stakes keep getting higher for the 2018 midterm elections in the United States. 

Each churn of the news cycle heaps more liberal responsibilities on a would-be Democratic majority in the House and Senate - halting government handouts to corporations and the wealthy; salvaging at least the possibility of affordable healthcare as a right for much of the US population; slamming the brakes on cruel immigration policies and putting some constraints on the president's self-destructive trade policy and erratic approach to national security.

The list goes on.

Add one more task to the mix: Taking back the Senate to prevent the wholesale rout of most liberal Supreme Court victories of the past half-century.

A swing justice bows out

On Wednesday, Justice Anthony Kennedy compounded a series of narrow defeats for liberal legal causes by announcing his retirement, handing President Trump the second chance in two years to make a lifetime appointment to the Court.

Justice Kennedy cast the deciding vote in a number of 5-4 decisions by the court, which in theory provides apolitical review of whether US laws are in line with the US constitution, (much as this ultimately amounts to a convenient-yet-necessary fiction).

Swapping out Kennedy - often a swing vote - for a more hardline conservative judge would have done little to prevent the erosion of union strength, curtail the president's travel ban, safeguard voting rights, or empower workers to pursue legal claims against employers. 

Justice Kennedy cast the deciding vote in a number of 5-4 decisions by the court

Yet where Kennedy has swung "left" has typically been on social issues, authoring every court position advancing gay rights since 1996. His departure renders many advances won through the courts vulnerable to reversal, particularly given the flimsy legal reasoning in many of the opinions he authored.

There is little that can be done in the Senate at present to prevent a rapid replacement of Kennedy by a younger justice with solid conservative credentials.

Read more: Supreme Court blesses Trump's Muslim ban, undermines religious liberty

Senate Majority Leader Mitch McConnell refused to seat a nominee by President Obama in 2016, betting (correctly) that a President Trump would be able to make the appointment come 2017.

Democratic Senate leader Chuck Schumer can call McConnell's actions "the height of hypocrisy" - it matters not at all.     

Republicans still control a majority of votes in the Senate, and any hope of a 40-vote filibuster vanished last year with the majority-vote appointment of current Justice Neil Gorsuch.

Courting the evangelical vote

The only thing up for debate is whether the Trump administration will be able to ram through a nominee who offers a chance to continue catering to a rock-solid Republic constituency: White evangelical voters dead-set on reversing Roe v. Wade, the landmark court case that established abortion rights in the United States.

Opposition now hangs on two Republican Senators - Lisa Murkowski and Susan Collins - who outwardly oppose overturning Roe v. Wade.

Yet their continued opposition is far from assured, so long as a nominee can offer a shred of testimony that suggests he or she views the case as settled law, regardless of how their vote ultimately turns out.     

The Trump administration faces enormous incentives to find a candidate who can walk this rhetorical line, given the importance of white evangelical support at the polls.

To be sure, numerous commentators have offered plenty of other reasons for white evangelical voters to support President Trump: Economic anxieties, undercurrents of racism and misogyny, or psychological kinship between evangelical churchgoers and the president.

Yet who shows up to the polls can be just as decisive as voters' ultimate choice, as Doug Jones' improbable victory in deep-red Alabama showed this past December.

And the churches and political vehicles of white evangelical Christians run some of the most formidable turnout operations in the country, especially in midterm elections. Adding yet another conservative justice to the bench and racking up more Senate votes to confirm anti-Roe v. Wade candidates will be major rallying cries in the autumn.

Off-season success?

Democratic voters are quick to note that their presidential candidates have won six of the last seven popular votes - as they should.

Less commonly noted is the fact that Republican congressional candidates have garnered more votes in six of the last seven midterm elections.

Where Kennedy has swung 'left' has typically been on social issues

Crucially, the 2014 midterms handed the Republican Party the control of the Senate it needed to stymie President Obama's only chance to change the partisan composition of the Supreme Court.

In order to be enduring, liberal causes in the United States need to be advanced through electoral campaigns, representation, and legislation rather than Court decisions and executive orders.

Much as those on the American Left might hope that an ever-expanding view of rights might be enshrined in judicial precedent, Kennedy's retirement shows just how precarious this hope might be - as precarious as the hope that executive action from President Obama (and a President Clinton) could compensate for the decimation of the Democratic Party.

It is the kind of precarious hope that led aging Justice Ruth Bader Ginsburg - whose partisan loyalties are hardly a secret - to forgo a strategic retirement at the outset of Obama's second term, leaving liberals nationwide to pray that her health outlasts the current administration.

Liberal causes in the US need to be advanced through electoral campaigns, representation and legislation

The Democratic Party now needs to put in its best midterm performance since 2006, the beginning of the end of the Bush presidency.

It faces an extremely narrow path to 51 votes, the most likely scenario involving wins for Democrats in Nevada and Arizona (both of which went for Trump in 2017) all while defending 10 vulnerable seats in states that also went for Trump.

The party's leadership should absolutely leverage potential Court appointments in rallying would-be voters around the paramount goal of retaking Senate, playing up every liberal sense of loss, denial, grievance and desire for (political) revenge to the hilt.

The stakes could not be higher, as every passing day makes clear.

Andrew Leber is a PhD student in the department of government at Harvard University.

Follow him on Twitter: @AndrewMLeber

Opinions expressed in this article remain those of the authors and do not necessarily represent those of The New Arab, al-Araby al-Jadeed, its editorial board or staff.