Rage at the End of Justice Kennedy’s Camelot

Which is why progressives are having a rough week. Just two years ago, they assumed that President Hillary Clinton would be replacing the late Justice Scalia and possibly, they hoped, two, or even three other justices. (One particularly enthusiastic law professor bragged in mid-2016 that the imminently liberal court would be well positioned to help the left deal with social conservatives—“the losers in the culture wars”—like vanquished Confederates after the Civil War, or Japanese soldiers after World War II.)

Now the left realizes that this tantalizing future is almost certainly forgone. Perhaps a current or future justice appointed to the Court by a Republican president will shift leftward—it has happened before, and recently—but the more likely outcome, at least by the world as it is now, is one in which Republican appointees lead the Court for a generation.

What does that mean? No matter what activists are shouting, Roe and Obergefell are not in imminent danger of being “overturned.” But Roe and Obergefell are now unlikely to enjoy the persistent expansions that many progressives hoped the Court would be undertaking over the next two decades—expansion that would have come at the further expense of the Constitution’s protection for religious liberty. And at the expense of nonprofit status for pro-life or pro-traditional-marriage organizations. And at the expense of the federal and state governments’ remaining authority to legislate on matters involving abortion or same-sex marriage in any ways contrary to progressive cultural dogma.

It’s the loss of that judicial Camelot that has many on the Left distraught and grieving. And as with the grief of any major loss, the initial moments have been marked by astonishing outbursts of rage and denial.

The Center for American Progress’s president, for example, issued a flurry of tweets asserting that Justice Kennedy’s involvement in recent Court decisions siding with the Trump administration was connected to Kennedy’s son’s employment at a bank that made loans to Trump—and that these are the sorts of things for which a president and justice might be impeached. One is tempted to mock that sort of thing, but again this is a moment of deep trauma for these folks, and we ought to be kind as they work through their grief.

Meanwhile, on a popular Supreme Court podcast, two legal scholars who previously clerked for Kennedy theorized that the justice had retired due to sheer exhaustion at the prospect of having to save the country from Trump and the right—and that Kennedy’s concurring opinion in Trump v. Hawaii (which concurred with the Court’s 5-4 decision allowing the latest iteration of the “travel ban” order to stand) was actually Kennedy’s announcement of surrender. One of the two podcasters translated Kennedy’s opinion into: “I’m done. I can’t stop this to the extent that this bothers me or strikes me as constitutionally problematic, and I’m done policing it.”

Here’s a simpler explanation for Kennedy’s concurrence in Trump v. Hawaii: it was a straightforward and eloquent opinion, respecting the practical limits of judicial power while also calling (as in Masterpiece Cakeshop) for public respect for the First Amendment religious liberty in all parts of government. Still, if story-telling is the form that progressives’ grief has taken, one can hardly blame them.

But when partisans for a permanently liberal Court move beyond Kubler-Ross and start calling for specific actions, we ought to take them more seriously. And we already are seeing two rather startling demands.

First, some legal scholars, are calling on Democrats to commit to “pack the Court” by adding new seats to the Court as soon as Democrats recapture the presidency and Congress—and filling those seats with extra Democratic-appointed justices. These calls preceded Kennedys’ retirement (they began shortly after President Trump was inaugurated, as Josh Blackman observed at the time). But they seem to be taking on new urgency now: Fordham’s Jed Shugerman, for example, announced on Twitter that if President Trump succeeds in appointing a replacement for Kennedy, then the next Democratic president and Congress should add six(!) new seats to the Supreme Court in 2021. (And abolish the filibuster for legislation, if it’s necessary to get the six bonus seats.) Ian Samuel, a Harvard Law fellow, staked out a similar position immediately upon Kennedy’s retirement.

It’s hard to think of a better way to galvanize Trump-skeptical Republicans for the 2020 vote than to preemptively announce a Democratic court-packing agenda for 2021. If law professors hadn’t started vowing that the next Democratic president would “pack the court,” then a pro-MAGA Super PAC would have made it up.

In this case, Shugerman’s court-packing agenda is particularly ironic given his vocal denunciation, just months ago, of a conservative professor’s harebrained proposal to pack the lower courts with new judicial seats—which was, as Shugerman noted, a transparent move toward “undoing President Obama’s judicial legacy.”

But irony aside, everyone should pause at the notion of overhauling the Supreme Court’s structure in a fit of partisan pique. The Court has had nine seats since the mid-19^th Century; next April marks the 150^th anniversary of the Judiciary Act of 1869, which fixed the Court at that number.

Nine isn’t a magic number, and the Court can function perfectly well for extended periods of time with fewer justices, as I noted in 2016. But to legislate partisan changes to the Court’s structure will simply inaugurate a new era of further escalations. Shugerman’s 15-justice court under the next Democratic president would become an 18-justice court under the next Republican president.

And on and on with each turn of the partisan wheel. It would do to the Court’s structure what Ted Kennedy did to Supreme Court confirmation fights with his unprecedented attacks on Robert Bork and Clarence Thomas. Or, for that matter, what Harry Reid did in changing the Senate’s rules for voting on judicial nominees in 2013. For all the left’s complaints about Senate Republicans’ decision not to vote on the Garland nomination to fill a presidential-election-year vacancy, it violated neither constitutional text nor any well-established tradition to the contrary—indeed, it was itself precedented.

And, more immediately, for all the talk of President Trump’s harm to institutions, legislating changes to the Supreme Court’s structure for mere partisan advantage would be institutionally ruinous for the judicial branch. Our politics will have a hard enough time repairing President Trump’s own reckless norm violations. For the Constitution’s judicial branch, there would be no way back from court-packing.

Meanwhile, Prof. Paul Schiff Berman writes in the New York Times that the Senate should refuse to vote on Trump’s nominee for the Court so long as Trump himself is being investigated. “People under a cloud of investigation do not get to pick the judges who may preside under their cases,” Berman writes (although Alyssa Milano may have come up with the idea first). “By this logic, President Trump should not be permitted to appoint a new Supreme Court justice until after the special counsel investigation is over, and we know for sure whether there is evidence of wrongdoing.”

Berman offers no authority for his assertion that presidents under “a cloud of investigation” don’t get to appoint judges who may eventually hear their cases. And, in fact, it requires only a passing awareness of the last several decades’ history to see that Berman is plainly wrong about this.

Start with the very same justice whom Berman does not want Trump to replace: Anthony Kennedy was appointed to the Supreme Court (with the consent of a Democratic-majority Senate) in February 1988, more than a year after both Independent Counsel Lawrence Walsh and Congress began investigating the Reagan White House’s Iran-Contra affair. In fact, at Kennedy’s confirmation hearing, Senator Arlen Specter specifically asked Kennedy about the Supreme Court’s power to decide cases arising from disputes between the president and Congress over covert operations related to Iran-Contra.

Next, President Clinton appointed Justice Stephen Breyer in August 1994, eight months after Attorney General Reno appointed Robert Fiske as special prosecutor to investigate the Clintons’ Whitewater scandal. Breyer was appointed months after the president and others began receiving Fiske’s grand jury subpoenas. The investigation ultimately led to President Clinton’s impeachment and Senate trial, after Independent Counsel Ken Starr was appointed to succeed Fiske.

Next, President Bush appointed Chief Justice Roberts and Justice Alito in 2005 and 2006, while the White House was being investigated by special counsel Patrick Fitzgerald (who was appointed by a deputy attorney general named James Comey).

Finally, just last year, President Trump appointed Neil Gorsuch to the court despite the FBI investigation into the Trump campaign’s possible collusion with Russia.

The factual predicate for Berman’s actual argument doesn’t survive any scrutiny. But that may not be Berman’s real point. Instead, Berman seems focused on preemptively delegitimizing whatever justice Trump eventually appoints to succeed Kennedy:

One wonders whether Berman would say there was a similar stain on the legacies of all the aforementioned justices appointed by under-investigation Presidents: Kennedy, Roberts, Alito, and Breyer. Would Berman delegitimize Breyer for his role in Clinton v. Jones (1997)? There the Court unanimously held that President Clinton was not immune to Paula Jones’ lawsuit—but Breyer alone wrote a separate opinion spelling out a more Clinton-friendly view of presidential immunity. Applying Berman’s new standard to Justice Breyer would be utterly damning, especially in light of Breyer’s role in Clinton v. Jones. Luckily for Breyer, Berman’s standard is a new invention for this particular president and this particular vacancy.

Let’s be candid: No matter when this particular Supreme Court vacancy happened to occur, it was destined to be the most hotly contested confirmation fight of our lifetimes—even more than the Thomas and Bork nominations—because it has the potential to cause a major shift in the ideological balance of the Court.

All confirmation battles will be ugly so long as the Court asserts so much power over our politics, as Justice Scalia warned in Planned Parenthood v. Casey (when Justice Kennedy first stepped to the forefront of our national politics). And they will be all the more so whenever the seat in question has the potential to flip ideologically.

But Justice Kennedy’s retirement happens to occur in the most poisonous political year of the last half-century. Which means that we are about to face a political and cultural storm of the century.

These radical proposals—to utterly overhaul the Court’s structure and preemptively delegitimize the next justice—are just the start.