The one Supreme Court justice who could be relied upon to weigh the issues objectively, instead of through an overtly partisan lens, announced his retirement Wednesday. Justice Anthony Kennedy, 81, had an admirable record of centrism that made it hard to predict court decisions on major questions such as same-sex marriage and abortion rights.
President Donald Trump now has a stronger hand to shape the court in his image, particularly after the unexpected gift he received of naming Justice Neil Gorsuch to replace the late conservative Justice Antonin Scalia. Our call upon Scalia’s death in February 2016 was for then-President Barack Obama to nominate a centrist in Kennedy’s mold to the bench.
Other justices’ decisions were largely predictable based on their known political leanings. Kennedy, nominated by President Ronald Reagan, seemed to relish unpredictability and emerged the swing vote that made same-sex marriage the law of the land in 2015.
His 1992 flip vote solidified the court’s affirmation of women’s right to choose on abortions. “At the heart of liberty is the right to define one’s own concept of existence, of the universe, and of the mystery of human life,” he stated.
Polls consistently indicate that the vast majority of Americans adhere to middling political tendencies, and the balance of the court should reflect that.
Senate Minority Leader Chuck Schumer, D-N.Y., called Kennedy’s retirement “the most important vacancy on the Supreme Court in at least a generation.” He appeared to recommend delaying Senate confirmation of Trump’s nominee until after the November elections, in which control of both houses of Congress is up for grabs.
In other words, he wants the same unfair process to occur now that occurred in 2016 when Republicans stalled confirmation of Obama’s Supreme Court nominee and handed the appointment to Trump. The delay wasn’t fair then, and it wouldn’t be fair now.
The president, a former abortion-rights supporter, promised religious conservatives during the campaign that he would seek to overturn the landmark 1973 Roe v. Wade decision. It’s because of this specific issue that religious conservatives have consistently excused Trump’s other foibles and sins, such as his serial lying and allegedly adulterous affair with a porn star. As long as Trump never veered on abortion, they backed him.
Now comes the test. Even before confirmation hearings begin on Trump’s nominee, we should expect hardline conservative state legislatures to start passing harsh anti-abortion laws — perhaps even an outright ban — in hopes of prompting a challenge that will wind up at the Supreme Court.
In so many ways, the consequences of the 2016 presidential election have reverberated across the land. But on Wednesday, those reverberations registered as an 8.0 political earthquake.
— St. Louis Post-Dispatch