Anthony Kennedy’s retirement has sparked a free-fall panic among progressives, Democrats, and others who for five decades have enjoyed the fruits of rule-by-judiciary on the nation’s most contested social issues. Left-of-center commentators have proclaimed that Roe is dead, that Kennedy’s famous gay rights opinions and saving fifth vote for affirmative action are on life support, and that we are on the verge of a radical conservative constitutional revolution. Many conservatives agree with these assessments but are measured in their glee so as not to lend credence to attacks on whomever President Trump nominates to replace Kennedy.
Both sides are too confident. There is little doubt that Kennedy’s replacement will be conservative and little doubt, too, that the Court will have a conservative bent for the next few years. Beyond that, it is too early to tell.
Kennedy’s progressive votes on social issues and the death penalty, and his rejection of constitutional originalism, camouflaged the reality that he usually voted with the right side of the Court. He was pro-business, a staunch defender of federalism, usually hard on criminals, and the Court’s most influential expositor of a libertarian conception of freedom of speech. On these issues, and scores of others off the front pages, where Kennedy voted right, his replacement will be younger but likely not appreciably more conservative.
The impact of Kennedy’s replacement will also depend on what type of conservative he or she is. Some judicial conservatives are originalists, others are inclined to libertarianism, and others emphasize judicial restraint. These philosophies combine in different ways to cut in different directions in different contexts—which is why conservatives don’t always vote as a bloc. Even originalism can lead to different outcomes, as we saw this term when the conservative justices splintered on three important questions of structural constitutional law that turned in part on analysis of originalist sources.
As many have noted, Kennedy’s retirement will likely move Chief Justice Roberts to the center of the Court. (This trend began this term, when Roberts for the first time bested Kennedy as leader in number of majority opinions joined in 5-4 cases.) Roberts embraces judicial restraint and judicial minimalism—a tendency reinforced by his position as Chief. He is also less wed to originalism and more pragmatic than his remaining conservative colleagues. And he cares openly about the Court’s institutional reputation in American society.
These commitments have led Roberts, an undeniably conservative jurist, to vote with liberals, and contrary to Kennedy in dissent, in decisions upholding Obamacare, validating state campaign finance laws, and expanding the Fair Housing Act and Fourth Amendment rights against government surveillance. As Roberts more often casts the deciding fifth vote, it is hard to predict where his conservatism will lead him. But it is unsound to say with confidence that he will move the Court sharply to the right compared to Kennedy.
Which brings us to the “June decisions”—the end-of-term 5-4 decisions where ideology dominates outcomes, by contrast to earlier decisions, where technical law and methodological commitment seem to matter more. The June decisions are what progressives most fear in Kennedy’s replacement—especially, as noted above, on abortion, gay rights, and affirmative action.
Affirmative action is most vulnerable. The cases were moving against the legality of the practice until Kennedy surprised everyone three years ago to join the liberals in upholding the University of Texas’ affirmative action plan. Roberts joined Justices Clarence Thomas and Samuel Alito in dissent in that case, and Justice Neil Gorsuch is expected to vote the same way. Since affirmative action remains socially and legally contested, and since conservatives of all stripes find legal arguments for affirmative action unpersuasive, it is reasonable to think the post-Kennedy Court may cut back on the practice.
Kennedy’s gay marriage opinions are less likely to be overturned. These decisions are of relatively recent vintage, but in contrast to affirmative action, they seem more secure because Kennedy’s “jurisprudence largely mirrors changes in society,” as University of Virginia law professor Saikrishna Prakash recently noted. Conservative justices in high-stakes constitutional cases pay more attention to the degree of underlying social settlement than is commonly appreciated. That social settlement does not extend to the reconciliation of gay marriage with religious liberty, and Kennedy’s replacement may well take the latter more seriously than Kennedy would have in this context.
The lack of social settlement on abortion is why so many people think Roe is now on the chopping block. The decision has been violently contested in politics and the culture since the Court invented the abortion right in 1973, and is more responsible than anything else for the degraded confirmation process. It has also (in narrowed form) been reaffirmed many times since 1973. The Court will face harsh institutional consequences no matter how it deals with Roe, but restraint-minded conservative justices will have a much easier time narrowing the decision steadily than casting the fifth vote to reverse it outright. And they might not often get the chance to overrule Roe anyway, since progressives will now bombard state supreme courts to convince them to protect abortion under state constitutions in ways immune from federal judicial review.
Two other considerations make confident predictions about a sharp right turn on the Court premature: First, since at least the Reagan administration, Republican presidents have nominated justices whom they thought would cast a reliable conservative vote in the June cases, only to be thwarted when some of the justices grew moderate on the high bench. The enormous responsibility of the fifth vote’s impact on American society made these conservative justices hesitate. Republican administrations have tried harder and harder to avoid this outcome, but one never knows until the justice actually starts voting.
The second reason is historical contingency. When President Obama nominated Merrick Garland to replace Justice Scalia two years ago, it seemed certain that the Court would make a significant left turn. But then the unthinkable happened: the Senate delayed the vote until the presidential election, which Trump won.
It is easy to imagine Republicans in 2018 losing the Senate, which would then stop all Supreme Court appointments—and in 2020 losing the presidency, which would give Democrats a shot at replacing aging liberal justices Ginsburg and Breyer and possibly a retiring or dying conservative justice, thus reversing the Court’s rightward movement.
On the other hand, it is also easy to imagine the Republicans keeping the Senate in 2018 and Trump having a chance to replace Ginsburg and possibly Breyer, if not in 2019 or 2020, then possibly after his re-election. A sixth or seventh conservative justice on the Court would herald a conservative revolution in a way that Kennedy’s replacement does not.
