The Trump presidency has been exhausting. Maybe that was the idea. It’s one outrageous thing after another. Everything is “big news” – but when everything is big news nothing is. Everyone goes numb. The United States now has concentration camps for children? Canada is now our enemy and North Korea is not? Yeah, well, what else is new? CNN gave up. Every single news story is “Breaking News” there – they have an all-purpose graphic for that. Wolf Blitzer is perpetually breathless. He may pass out live on camera one day – but everyone else is tired of this. That was the idea. Make America shrug. They won’t know what hit them. They just don’t care. They’ve had enough. They’ll worry about their own lives. Trump will be Trump. Life will go on.
No, it won’t. Now and then there is “big news” – something that really does change everything, something that’s worth more than a shrug – something like this:
Justice Anthony M. Kennedy announced on Wednesday that he would retire this summer, setting in motion a furious fight over the future of the Supreme Court and giving President Trump the chance to put a conservative stamp on the American legal system for generations.
Those concentration camps for children will be gone one day – perhaps soon. Canada never was our enemy and never will be, no matter how Trump sees the War of 1812 – and North Korea is now working hard on building more nukes and missiles even if Trump says he trusts Kim, they’ve given all that up. All of that is transitory. What the Supreme Court does isn’t:
Justice Kennedy, 81, has been a critical swing vote on the sharply polarized court for nearly three decades as he embraced liberal views on gay rights, abortion and the death penalty but helped conservatives trim voting rights, block gun control measures and unleash campaign spending by corporations.
His replacement by a conservative justice – something Mr. Trump has vowed to his supporters – could imperil a variety of landmark Supreme Court precedents on social issues where Justice Kennedy frequently sided with his liberal colleagues, particularly on abortion.
This is a big deal and people know it:
Mr. Trump and his Republican allies have hoped for months that Justice Kennedy might retire, clearing a way for a new, more conservative jurist before Democrats had an opportunity to capture the Senate and block future Republican nominees.
Their prayers were answered, or will be answered if they move quickly:
The Senate, which must confirm the president’s pick for the court, is under Republican control, which gives Mr. Trump the opportunity to win approval of his choice without any Democratic support. But the Senate’s makeup could change after congressional elections this fall, putting immense pressure on the president and his party to nominate and confirm a justice before November.
Senator Mitch McConnell of Kentucky, the majority leader, called on senators to make sure the president’s nominee would be “considered fairly” without being subjected to personal or character attacks.
“We will vote to confirm Justice Kennedy’s successor this fall,” Mr. McConnell vowed in brief remarks on Wednesday.
This Republican Senate has to do that because there may be no Republican Senate after the midterms, and everyone knows that too:
Senator Chuck Schumer of New York, the Democratic leader, demanded that the Senate wait to confirm Justice Kennedy’s replacement until after the midterm elections. Mr. Schumer noted that Republicans delayed consideration of President Barack Obama’s court nominee in 2016, Judge Merrick B. Garland, citing the presidential election that year.
The Republicans prevented even a hearing for Mr. Obama’s nominee, which effectively handed Mr. Trump the chance to fill the vacancy created by the death of Justice Scalia. The move infuriated Democrats, who accused Republicans of stealing Mr. Obama’s right to fill a seat on the court.
Mr. Schumer said senators should not “consider a Supreme Court justice in an election year,” saying that “anything but that would be the absolute height of hypocrisy.”
“People are just months away from determining the senators who should vote to confirm or reject the president’s nominee,” Mr. Schumer said on the floor of the Senate, “and their voices deserve to be heard now, as Senator McConnell thought that they deserved to be heard then.”
Schumer threw McConnell’s words back in McConnell’s face, for good reason:
Justice Kennedy, a Californian and graduate of Harvard Law School, was appointed to the Supreme Court by President Ronald Reagan in 1987. But he was never a reliable conservative and evolved into one of the court’s most unpredictable jurists.
He wrote some of the country’s most important gay rights decisions and helped to drastically shift the United States’ legal treatment of gays, lesbians and transgender people. In 2015, he wrote the court’s opinion that established the right for gay people to marry each other.
“Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions,” Justice Kennedy wrote of gay Americans. “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Justice Kennedy has also served as the linchpin of the judicial defense of abortion rights, frequently siding with the court’s liberals in turning back conservative challenges to Roe v. Wade, the landmark 1973 case that established a constitutional right to abortion.
No one Trump nominates would do anything like that ever again, but Schumer forgets this about Kennedy:
He wrote the opinion in Citizens United, which gave corporations the right to make unlimited campaign contributions. He joined the court’s conservatives in 2008 in declaring that the Constitution protects a person’s right to keep a loaded gun at home for self-defense.
After the 2000 election, Justice Kennedy also joined the majority in Bush v. Gore, handing the presidency to Mr. Bush and drawing the ire of Democrats who believed the election was stolen from Vice President Al Gore.
Justice Kennedy was only sometimes a hero, and he was a hero to each side at times, but Donald Trump knows this is still a big deal:
In his remarks to reporters shortly after meeting with Justice Kennedy, the president appeared to appreciate the gravity of the choice before him.
“In our country, the selection of a justice of the United States Supreme Court is considered, I think we can all say, one of the most important events – one of the most important things for our country,” he said. “I mean, you see the decisions that just came down, how big they are, how vital they are.”
“Some people think,” the president added, “outside of, obviously, war and peace, it’s the most important thing that you could have.”
Donald Trump was finally right about something. This is a big deal, and Jack Goldsmith, a professor at Harvard Law who clerked for Kennedy from 1990 to 1991, notes what will now be gone:
Kennedy made it to the highest court in the land after President Ronald Reagan’s failed selections first of Robert H. Bork and then Douglas H. Ginsburg. When the Reagan administration looked for a safer choice, it turned to the soft-spoken, bookish Californian who ran his father’s law practice and taught constitutional law before becoming a respected appellate judge on the U.S. Court of Appeals for the 9th Circuit. The Senate confirmed Kennedy 97 to 0 on Feb. 3, 1988.
Kennedy dominated the direction of the court in its most important decisions from the beginning, and especially in recent years. One proxy for an ideologically contested case is when the court splits 5 to 4. In his 31 terms on the court, Kennedy led or tied for the most 5-to-4 cases in the majority a remarkable 20 times, including every term but one since swing justice Sandra Day O’Connor retired in 2006. His vote was extraordinarily consequential.
There are many reasons Kennedy was the man in the middle. He struggled with all sides of a case and brooded more than most justices about the right answer. And though he possessed a latent libertarianism, he lacked rigid ideological commitments that would have placed him consistently on one side of the court.
Kennedy, then, was a man from the age before Trump:
Kennedy will be most remembered for his famous progressive opinions – establishing a constitutional right to same-sex marriage and other gay rights, refusing to overturn the abortion right declared in Roe, extending the constitutional right of habeas corpus to wartime detainees held at Guantanamo Bay despite congressional and presidential resistance, limiting prayer in school and striking down the death penalty for juvenile criminals.
Despite these notable opinions on the left, Kennedy usually voted with the right side of the court – for example, to invalidate Obamacare, revitalize the Second Amendment right to bear arms, disable public-sector unions and uphold business prerogatives. He also wrote influential conservative rulings. He penned the progressives’ bête noire, Citizens United, which interpreted the First Amendment to ban government restrictions on corporate and associational political expenditures. He was a defender of federalism who wrote opinions limiting Congress’s power to enforce the 14th Amendment against states and its power to abrogate state immunity from lawsuits. He also wrote many opinions that narrowed criminal defendants’ rights and an important opinion upholding restrictions on abortion.
Goldsmith, however, sees a singular consistency in the inconsistency:
While Kennedy lacked an overarching jurisprudential commitment, some combination of three principles informed most of his landmark rulings.
The first and most distinctive principle was “dignity” – the quality of proper worth and esteem. Kennedy’s articulation of a constitutional “dignity as free persons” was an ineffable meld of privacy, liberty and equality that guided his landmark decisions on gay rights and will long reverberate in U.S. constitutional law. For Kennedy, dignity was not limited to individuals…
The second and related principle was a capacious notion of liberty from government interference. This principle informed his progressive social opinions but also led him to be suspicious of burdensome regulations and to read the First Amendment broadly. It also inclined him to push freedom downward, so to speak, with a thumb on the scale for states over the federal government and for individuals over both.
The third principle was a robust conception of judicial power. Kennedy believed in his bones in the integrity of judging. He had great confidence that the court’s intervention in contentious issues was vital to the effectiveness of the constitutional scheme.
Okay, there’s dignity, and respect for individuals, and a sense that something should be done about both, and then there’s Donald Trump, and this too:
Kennedy’s jurisprudence will be debated for generations. But those who know him well understand that his activities off the court are just as important to him. He is a devoted mentor to his law clerks. And he is a gentleman who possesses an unfailing personal kindness toward everyone he meets. He and his beloved wife, Mary, add rare grace to official Washington.
Okay, there’s being a gentleman and unfailing personal kindness and grace, and then there’s Donald Trump, and this too:
He pushes himself incessantly to learn and think about U.S. and judicial history and traditions. And he is a mesmerizing speaker and devoted teacher. Two years ago, my students gaped in awe for 90 minutes as the now-81-year-old justice, without notes, brilliantly analyzed a recent opinion.
And then there’s Donald Trump who wings it and sneers.
There’s also Joshua Matz who clerked for Kennedy from 2014 to 2015 with this:
These are dark days in America. Tribalism, kleptocracy and intolerance stalk the land. The White House is besieged with credible accusations of criminality and corruption. Many have lost faith in their institutions of government. Democracy itself seems besieged.
Yet even in this cynical age, the court has maintained formidable public support. Kennedy is an essential part of that story.
For decades, as one of the court’s more influential members, he has worked to keep it on a (relatively) even keel. Whereas too many Americans demonize those with different views, he has placed civility, good faith and open discourse at the heart of his worldview. As bitter partisanship consumes Congress, he has stood firm in his devotion to judicial independence.
He was never Donald Trump:
Most importantly, Kennedy remained singularly open to a wide range of views on controversial issues. He recognized that the Constitution encompasses many values – some of them in tension with others – and that we must learn from experience. “The nature of injustice is that we may not always see it in our own times,” he once wrote.
Donald Trump would never say such a thing. Kennedy was humble, and that was actually a good thing:
With Kennedy as a frequent swing voter, Americans of all persuasions knew their voices and values would receive serious consideration by a key decision-maker – one who was not strongly inclined for or against them from the very outset. The outcome of many cases has been a mystery until the very end.
This can be maddening, no doubt. So can the fact that a single man wields so much power. But it is surely a good thing that on most issues, large swaths of the nation have not simply given up on the court as a forum in which their vision of the Constitution has a shot.
But now those days are gone:
His retirement will spark chaos. Keen to reshape American life on a startling scope and scale, conservatives will race to confirm a reliable vote. Things will get ugly – very ugly. Roe v. Wade hangs in the balance. So do many other famous precedents.
Accordingly, the court’s very legitimacy is now up for grabs. Signs suggest that President Trump aims to move the court so far to the right that half the nation will inevitably deem it an avowed enemy.
The confirmation battle ahead will place the court under crushing pressure. And if the result is a muscular, immodest conservative majority, the center will not hold.
Matz is arguing that Trump will destroy the Supreme Court, and Richard Hasen adds this:
Buckle up, folks. If you did not like what the Supreme Court has done in the last few weeks on voting rights, public-sector unions, and Trump’s travel ban, things are going to get a whole lot worse now that Justice Anthony Kennedy is retiring and with conservative Chief Justice John Roberts about to become the new swing justice. There’s precious little Democrats can do, at least in the short term, either to stop the nomination of another clone of Justice Antonin Scalia, or to stop the political benefit President Donald Trump is likely to get from such an appointment. Fixing the Supreme Court will be a long-term project.
There’s a reason for that:
Democrats have no cards to play here. You may remember that former Senate Majority Leader Harry Reid had killed the filibuster for all executive and judicial nominees except Supreme Court justices during Obama’s term. Then during the Gorsuch nomination fight, current Majority Leader Mitch McConnell extended that to Supreme Court nominees. This means it takes only a majority of votes to get a nominee through, and Republicans have such a 51–49 majority in the Senate.
This means even if all the Democrats voted no, there’s no filibuster and no stopping the nominee with their votes. And if you think that senators like Jeff Flake would buck Trump on a nominee like Kavanaugh, forget it. They may disagree with Trump about a lot of things, but not about hard-right judicial nominees.
The only political hope here is for massive street protests, like we saw with the initial Trump travel ban to try to convince senators like Susan Collins of Maine or Lisa Murkowski of Alaska to vote no. It’s a long shot because we’ve seen these senators fold time and again. But it is worth trying.
The problem is that the Supreme Court issue has been a tough one to get people to rally around.
That’s because people just shrug now:
On everything from abortion to same-sex marriage to immigration, labor unions, and voting, the court touches all aspects of our lives. But it does so in ways that are opaque to the average person. A political movement needs concrete indications of a problem, and it did not materialize before the 2016 election that this upcoming crisis was obvious. Maybe the court’s opinions this week on the travel ban and labor unions can provide some impetus…
What’s worse is that not only is political action unlikely to stop a nomination, that nominee could be on the court for generations. Arch-conservative Justice Clarence Thomas joined the Court at 43 and just turned 70.
Now add this:
The nomination will also offer a short-run advantage for Republicans. I expect a Trump Bump in the midterms when evangelicals come out to vote excited about the next Scalia that Trump and McConnell have delivered to them.
Eventually more people will realize how awful the court is going to be. When abortion becomes all but impossible in many states, when civil rights and voting rights can be curtailed easily, and the right to discriminate against LGBT folks becomes part of the Supreme Court’s set of cases, people will be angry and come out to vote.
But then it will be too late:
It is not a pretty picture. And it will likely have to get much worse before it gets better.
Slate’s Yascha Mounk paints that picture:
When he heard that Supreme Court Justice Anthony Kennedy was retiring on Wednesday, a friend in his twenties told me: “Today is the darkest political moment my generation has experienced.”
“What about the day Trump was elected?” I asked in surprise.
“This is worse,” he responded. “It’s the day Trump consolidates his power.”
My friend has a point.
That seems to be the case:
When Donald Trump was elected, “serious” social scientists argued that the institutions of the American Republic would constrain his power. The more historically literate among them even trotted out a quip Harry S. Truman reportedly made about Dwight D. Eisenhower: “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike – it won’t be a bit like the Army. He’ll find it very frustrating.”
As we now know, it hasn’t quite turned out like that. Though Trump’s White House certainly faced a steep learning curve in its first months – and remains deeply dysfunctional even now – the administration has gradually grown to be surprisingly effective at turning the president’s instincts into public policy. From immigration to trade, and from foreign policy to health care, the past months have brought big and worrying changes.
And don’t expect things to get better:
It is not just that the administration that is proving to be more effective than we might have hoped; it is also that the institutions meant to constrain it are proving far more pliant than we might have feared.
This is obviously true of the Republican Party. At the time of Trump’s election, smart observers debated whether party elites would continue to disdain and regularly oppose the president (as the optimists claimed) or whether Trump would prove capable of building a slate of his own candidates and gradually changing the nature of the party (as pessimists like me feared). The truth turned out to be much more radical than either the optimists or the pessimists predicted: Members of the conservative movement who had spent decades professing their commitment to balanced budgets and constitutional values proved willing to sell out their principles with astounding rapidity.
And now add this:
Even a year ago, institutions like the House Intelligence Committee still seemed to be animated by a sense of bipartisan mission; it was imaginable that, if only Special Counsel Robert Mueller found sufficiently compelling evidence of wrong-doing by the president, a large number of Republican representatives and senators might vote to impeach Trump. Today, the House Intelligence Committee is openly running interference for Trump; it is very hard to believe that 67 Senators would ever vote to impeach him.
Though the overall cast of characters has not changed all that much, the Republican Party – and the Congress it controls – has essentially become an agent of full-blown Trumpism.
And now add this:
What this week has brought into focus is that this institutional rot now also seems to be spreading to the last bastion on which defenders of democracy thought they could count: the Supreme Court.
And then subtract the Democrats:
The question that will likely consume us over the coming days and weeks is how the Democrats should respond to this latest political twist. Should they follow the precedent set by Mitch McConnell, and refuse to grant Trump’s nominee a hearing? Or should they take the high road, and assess the nominee by the kinds of standards – basically, a high degree of professionalism and some degree of ideological moderation – that both parties have applied as recently as a decade ago?
Both options are terrible. If Democrats follow McConnell’s precedent, they give up their claim to being consistent defenders of constitutional norms, and pave the way to an even more dysfunctional Congress. Given that Republicans have an inbuilt geographical advantage in the Senate, they would also undermine their ability to wrest back control of the Supreme Court in years to come.
But if Democrats allow Trump’s nominee to take his or her seat on the Supreme Court, this too is likely to do grave damage to liberal democracy. A year ago, Neil Gorsuch looked like the kind of justice who might protect our institutions: though he was deeply conservative, little in his record indicated that he might have sympathies for a populist assault on the rule of law or the separation of powers. And yet, he has participated in the court’s most recent assaults on religious liberties and free elections. There is no reason to assume that Trump’s next nominee, even if he or she should look reasonably sensible on paper, wouldn’t prove equally willing to follow the prevailing winds.
There’s no good choice here, only resigned quiet despair:
The longer I think about it, the more I agree with my friend: Trump has been consolidating his power for many months. As of now, it is no longer clear that any single institution in the United States will consistently prove willing to stand up to his assault on democratic institutions. Even by the horrific standards of the past two years, today is a very dark day for our country.
Get used to it. Shrug and move on. That’s what you’re supposed to do, but David French has a word of caution for gleeful conservatives:
We’ve been here before. We’ve had opportunities to remake the Court. President Reagan and the first President Bush together appointed a majority of the Supreme Court. Yet Roe endured, and the Court even moved left on key issues. Presidents don’t nominate robots. They nominate people who possess their own will.
There is that. Those concentration camps for children will be gone one day. Canada never was our enemy and never will be. Things work out. Trump’s new conservative justice probably won’t want to be a robot. Who would? Go ahead, shrug. That’s actually the only option now.