Justice Anthony Kennedy announced his long-awaited retirement from the Supreme Court on Wednesday, leaving conservatives to gush with joy and liberals to wring their hands. The vacancy sets off what will be a very interesting summer.
What does the vacancy mean? Who wins and loses? What are the legal and political implications?
To begin, Chief Justice Roberts is now slated to become the most powerful chief justice in recent history. Assuming President Trump nominates a conservative in the vein of Neil Gorsuch—and we have every reason to believe he will—the new court lineup will place Chief Justice Roberts in the court’s middle. He will become the median justice, the swing vote. Because of the court’s majority vote requirement to set precedent, the median justice has considerable power and tends to set the broad limits of its decisions. Consider the court’s recent affirmative action and abortion decisions: It moved to the right only as far as Justice Kennedy, the median at the time, allowed it. After the new justice joins the court, John Roberts will sit ideologically (and literally) in the middle position. The bottom line: it’s now truly the Roberts Court.
With any luck, the Kennedy replacement might also lead to more consistent jurisprudential decisions. Reading a Kennedy opinion was often like looking into the Mirror of Erised. In the Harry Potter books, the Mirror of Erised showed people what they most wanted to see. Kennedy’s opinions sometimes lacked grounding in jurisprudential values and often left the door open to competing interpretations. His recent opinion in the Masterpiece Cakeshop case was such an opinion: “on the one hand …; on the other hand …” With a new justice, perhaps the court will write clearer opinions that provide better guidance to the public and to lower courts.
Then there is the politics of it all. The vacancy improves Republicans’ political position going into the midterms in three ways:
First, coverage of the confirmation will dominate the news cycle. Talk about the Supreme Court vacancy will cast aside discussion of the Russia investigation, or children at the border. The hearings will capture our news cycles.
Second, the vacancy allows President Trump to reconnect with the voters that largely made his election possible: people concerned about the court. Many conservatives and Republicans came out to vote for Trump, with their noses plugged, because they cared about the direction of the courts. Trump will once again be able to court (no pun intended) those voters right before the midterms.
Third, red state Democrat senators up for reelection will likely be forced to vote for or against the nominee. How will Tammy Baldwin (D-Wisconsin), Joe Donnelly (D-Indiana), Heidi Heitkamp (D-North Dakota), Joe Manchin (D-West Virginia ), Claire McCaskill (D-Missouri), Bill Nelson (D-Florida), and John Tester (D-Montana) vote? They all will face complex decisions. If they oppose the president’s nominee, they will be labeled Nancy Pelosi obstructionists. If they support the nominee, they will lose support from their bases. The president and Senate Republicans benefit politically.
Democrats have put themselves in a tough position for this nomination. They forced Republicans to kill the filibuster during the Gorsuch nomination. That move required some time on the GOP’s part, time they had then but do not have now, in order to get this done before the midterms. Democrats have little power to slow or stop the nomination. Barring a huge scandal involving the nominee (or the president), the nomination is likely to go through.
In terms of potential nominees, keep an eye on a handful of people, including: Amy Coney Barret, Brett Kavanaugh, Raymond Kethledge, and Joan Larsen.
Amy Coney Barrett is a judge on the 7th Circuit Court of Appeals. A former Scalia clerk, she is well-credentialed and a strong legal scholar. She’s a female Catholic who could help Trump make inroads with both constituencies. And Republicans might welcome a conservative female to sit on the court, where all the females are Democrat appointees.
Brett Kavanaugh is also at the top of the list. He is currently a circuit court judge for the D.C. Circuit Court of Appeals, the second-highest court in the land. Kavanaugh clerked for Justice Kennedy, which would make his nomination an interesting one. Only one other justice has taken the seat of his former justice, when Roberts took the place of Chief Justice Rehnquist. Kavanaugh previously worked as counsel to President George W. Bush. He has wide support from conservatives.
Raymond Kethledge is a circuit court of appeals judge for the 6th Circuit. He clerked for Justice Kennedy as well. He is well-known for writing solid legal opinions. The Wall Street Journal once called one of his opinions the “opinion of the year.” At this point he seems to be a sleeper candidate, but he would instantly become a conservative favorite if selected.
Finally, Joan Larsen, too, is a strong contender. A former Scalia clerk, she was a professor at the University of Michigan law school until 2015, when she became a state supreme court justice. Recently, Trump elevated her to the 6th Circuit Court of Appeals. She, too, could help Trump reach out to female voters, just as President Reagan tried to reach them with his selection of Sandra Day O’Connor. And her status as a professor could help make the case that she is “learned in the law.”
Other strong possibilities include Judge David Stras of the 8th Circuit Court of Appeals, Allison Eid of the Tenth Circuit, and Raymond Gruender of the 8th Circuit.
While it’s unclear who will get the nod, one thing is crystal clear: John Roberts just acquired more influence, and Republicans and conservatives stand to gain.
