The Conservative U.S. Supreme Court


Justice Anthony Kennedy, the senior Associate Justice of the Supreme Court of the United States, announced his retirement, which will become effective on July 31. The announcement, on Wednesday June 27 2018, resulted in immediate and widespread attention. The 81-year-old decided that this was the time to retire. He stated in a letter to President Donald Trump, which signaled his decision, that “it has been the greatest honor and privilege to serve our nation in the federal judiciary for 43 years, 30 of those years on the Supreme Court.” The Associate Justice, who has been on the Supreme Court since his appointment by the late former President Ronald Reagan in 1987. The retirement, which comes after a period of time where it was widely rumored that he would be retiring, has created a significant opportunity for Republicans to shape the makeup and direction of the Supreme Court. Despite being appointed by a Republican administration, he had a more centrist record, which includes instances such as him writing the ruling that legalized same-sex marriage in the U.S. in 2015. He had, amongst other things, also upheld Roe v. Wade, the ruling on abortion, which has been a major target for many Republican figures. On the other hand, he had also provided the deciding vote for Conservative measures, such as his deciding vote on June 26 which upheld a travel ban on 7 countries, including 5 Muslim majority countries. Clarence Thomas is the oldest conservative justice at age 70, while two of the four liberal justices, Ruth Bader Ginsburg and Stephen Breyer, are 85 and 79. The Republicans can appoint another younger justice alongside Neil Gorsuch, while the age of the Democratic appointed judges could lead to further Republican appointees in the future, depending on future election results.

There are wide reaching implications of the retirement of Kennedy, which coincides with the Republicans having control of both chambers of congress, including the upper Senate and the lower House of Representatives, and the presidency. On April 7 2017, Neil Gorsuch was confirmed as an Associate Justice of the Supreme Court by the Senate, filling the vacancy left by the death of Antonin Scalia. The unveiling of Trump’s pick to fill the upcoming vacancy is expected to occur by July 9 2018. After the unveiling the Republican Senate Majority Leader Mitch McConnell has stated that the confirmation vote will happen in the fall, prior to the 2018 midterm elections. This stands in contrast to what occurred in 2016, where he waited until after 2016 to hold the confirmation vote for the vacancy left by Scalia’s death. McConnell said that “these aren’t the final months of a second-term constitutionally lame duck presidency with a presidential election fast approaching.” The current makeup of the Senate, which is 51 Republican senators, 47 Democratic senators, and 2 Independent senators caucusing with the Democrats, is favourable for the Republican Party. Additionally, the filibuster was eliminated for Supreme Court nominees, during the Gorsuch nomination, which means they do not need 60 votes to avoid a filibuster.

The announcement of the retiring of Anthony Kennedy represents a significant challenge for a variety of causes, where he tended to play the role of the swing vote. His future replacement is already being touted as someone who will be more consistently conservative, unlike the move towards the centre that Kennedy took on a range of matters. His power came largely from his role as the swing vote, given the 5-4 rulings on decisions that included legalization of same-sex marriage, elimination of various campaign finance restrictions, and weakening of the Voting Rights Act. The impacts may not be as resonant on matters where Kennedy showed a more conservative side, including campaign finance, voting, and gun rights. However, the social implications may be more significant, as those issues are the ones where his vote has played a deciding role that stands in contrast with many typically conservative goals. Movements including those fighting for abortion rights, as well as movements against mass incarceration, are some of the ones that face the greatest upcoming Supreme Court barriers in the aftermath of Kennedy’s impending retirement and replacement. The current makeup of the Supreme Court is something like 4-4-1, while it may soon end up as a clearer 5-4. On Roe v. Wade, the ground is very uncertain, given that there is a possibility that Chief Justice John Roberts may decline to form an anti-Roe majority on the basis of precedent. But he has history at times of breaking the precedence, including his support of Citizens United, raises uncertainty about his vote. Abortion rights instead facing a slower, more measured decline at the state level is the more poignant danger. Guttmacher Institute, which is pro-abortion rights, has classified 29 U.S. states as hostile or extremely hostile to abortion rights. 27 of these are states that voted for Trump. Only 12 states were rated as supportive, which includes 1 Trump voting state, Montana. On some other issues, including criminal justice reform and LGBTQ rights, there are also concerns about what the future holds, in a more decidedly conservative supreme court.

The extensive control that the Republican Party holds over all three levels of the federal government of the U.S. means that they hold considerable transformative power over the Supreme Court. The agenda that is being clearly presented represents a considerable attack on different institutions, rights, and societal advancements, on different fronts. There have been a range of potential solutions that have been discussed, including the possibility of a future Democratic presidential administration packing the Supreme Court with additional justices. However, the history of such a plan is highly controversial. President Franklin Roosevelt had tried to enact legislation in 1937 to pack the courts but found vehement opposition and criticism towards the idea. A law was never enacted. Instead of this idea, which failed despite the great political power of Roosevelt, others yet point to more incremental activism at the local level, to shape and influence the legal system for the long term. Regardless, the issues that are posed by an increasingly conservative supreme court, at a time where the Republican Party is keen to express its conservative bonafides, are such that the discussion of mechanisms to address them is highly vital to the process of protecting and expanding rights on various socioeconomic fronts.