Good Friday Morning! Associate Justice Anthony Kennedy is retiring from the Supreme Court. As far as retirements go, this is the most significant retirement from the Supreme Court since the liberal Thurgood Marshall was forced step down during George H. W. Bush’s administration due to poor health. Marshall was reliable liberal vote who was replaced by Clarence Thomas, one of the most conservative justices the Supreme Court has ever seen.
I’ll go into the Kennedy nomination process below. I’m also going to cover several high profile Supreme Court cases that I’ve meant to write about the last two weeks. Other news stories, most notably immigration last week, have stolen the spotlight. Links to follow.
New this week at the Conservative Institute
A shorter version of what I wrote last week in this newsletter.
George Will wrote a column saying conservatives needed to vote against the GOP in the upcoming midterms. I don’t think that’s right at all. And with the Kennedy vacancy, I believe doubly Will is wrong.
The Retirement of Anthony Kennedy
As I said in the intro, Kennedy’s retirement is a seismic change to the Supreme Court. Kennedy was a swing vote on the court, who for the last 30 years has been the most consequential man in all of Washington. Nominating someone who holds a more conservative jurisprudence will solidify a conservative wing of the court, and effectively moves the swing vote to Chief Justice John Roberts.
Kennedy’s legacy will be one of expanding free speech, gay marriage, and abortion rights. Since he so often was the swing vote, that allowed him to write some of the essential opinions on those fronts.
Where we go from here is uncertain. Jeffrey Toobin went on CNN and declared that Abortion rights would get overturned in 18 months with Kennedy gone. Abortion is always the most contentious issue, but I don’t think the court is close to having a majority on that front. More specifically, John Roberts won’t vote to overrule any of the recent rights expansion cases unless he has a clear majority (think 7-2) in favor of overriding precedent.
Roberts isn’t a moderate or swing-vote so much as he is a minimalist when it comes the Supreme Court’s impact on US politics. He firmly believes in judicial restraint, where the court refrains from mucking up significant issues in US politics. That has led him to seek more unanimous opinions from all justices, seeking fewer 5-4 decision and less controversial rulings (the Roberts court has had more unanimous opinions than any previous court).
In other words, politically speaking, the major issues like abortion won’t get overturned until conservatives can muster an unimpeachable majority opinion that the Chief Justice can join. That doesn’t make Roberts a moderate or liberal, as some pundits castigate him for being, just that he’s solidly in the judicial restraint camp and wants strong consensus to overturn precedent.
And, frankly, the closer to 9-0 you can get the court to rule on something divisive like abortion, the stronger that precedent will be in the future. Overruling precedent in a 5-4 decision can happen and happened on the last day of the SCOTUS term this week, but it’s weaker precedent than a stronger consensus case.
Whoever takes Kennedy’s spot isn’t likely to be the swing vote for abortion or some other contentious issue. That will come if Trump gets a shot to replace a liberal on the court. That’s important because the most likely people to retire or die on the bench are progressives, as David French astutely notes:
If Trump holds firm to his promise to choose his next justice from the list he put forward last November, the Supreme Court will be dominated by a core of five largely originalist justices, and the next two oldest judges are both progressive. Justice Ginsburg is 85, and Justice Breyer turns 80 in August. It may be quite some time before a president will have the opportunity to so clearly and decisively impact the judicial philosophy of the Court. In the meantime, that means that originalists may well have a golden opportunity to reset our jurisprudence to align more with the words and meaning of the Constitution. It’s too much (perhaps) to argue that Roe could fall, but one can easily imagine the Court granting greater autonomy to state governments to regulate abortion providers. One can also imagine more robust protections for free speech and religious liberty, greater protection for the right to keep and bear arms, and further inroads against the unconstitutional administrative state.
And therein lies the key. If Trump can replace Ginsberg and Breyer, that leaves Sotomayor and Kagan on the liberal wing, both Obama appointees. The conservative majority would balloon to seven votes, which would provide the voting power to end something like abortion. 7-2 is the vote number it would take to convince Roberts to overrule Roe v. Wade and Planned Parenthood v. Casey. With Kennedy retiring, this becomes a stronger possibility.
If Kagan or Sotomayor get changed by Trump, that would be the most seismic changes of all because it would cut off progressive jurisprudence from the bench. It’s also the pipe dream of everything in here. Sotomayor is effectively a Ginsberg clone with less cogent arguments. Kagan is the best writer of the liberal wing, but she’s not as far left as Ginsberg and Sotomayor.
Right now, with Kennedy retiring, what you can count on is a steady flow of cases defending the first amendment, including the religious clauses. My hope for this new 5-4 majority would be an end to the Employment Division v. Smith line of cases that have struck religious groups hard. Other areas where the court could work would be expanding 2nd Amendment rights, 4th Amendment protections, and reversing the administrative law state.
These may seem like boring issues compared to abortion, but the legal ramifications are incredibly exciting to me as a conservative lawyer.
Trump has said he’s sticking to his list of names for a Supreme Court nominee. It’s a great list, something liberal legal scholars like Akhil Amar told viewers on MSNBC. The Daily Caller put together a list of all the rumored frontrunners for the spot. It’s a solid list, and I agree with some of the analysis. But I’d rely more heavily on Josh Blackman’s FantasySCOTUS, which correctly predicted Gorsuch.
At the time I write this, the leading candidates to replace Kennedy on FantasySCOTUS are:
- Amy Barret, US Circuit Judge of the US Court of Appeals for the Seventh Circuit
- Raymond Kethledge, US Circuit Judge of the US Court of Appeals for the Sixth Circuit
- Don Willett, US Circuit Judge of the US Court of Appeals for the Fifth Circuit
- Brett Kavanaugh, US Circuit Judge of the US Court of Appeals for the DC Circuit
- Amul Thapar, US Circuit Judge of the US Court of Appeals for the Sixth Circuit
- Mike Lee, US Senator for Utah
I think Trump will choose someone from that top-three spots. The Fantasy crowd loves Barret right now, and given that she’s a staunch conservative and a woman, that would make her difficult to oppose for red state Democrats. Kethledge would probably be my guess of the group, but I have no insider knowledge.
Ed Whelan over at National Review, who is as plugged into decision makers for this nomination process as anyone, says the following:
I’d guess that President Trump will announce his nominee in mid- or late July. The Senate Judiciary Committee hearing could take place in late August (the Senate is set to remain in session in August), with a final Senate vote in early or mid-September. That would enable the new Justice to be on board in plenty of time for the Court’s next term, which opens on October 1.
I don’t have any doubts of that timeline, and Mitch McConnell echoed the same thoughts. Democrats are claiming they’ll stop the nomination, but I have no clue what they think they can do. They have Harry Reid to blame for changing the rules of the game and ending the judicial filibuster. Trump’s nominee only requires a majority vote, and any of the candidates listed above would get a majority vote, including support from red state Democrats.
How this impacts the midterms
Short term, this helps Republicans. It reminds most of them of why they voted for Trump, and keeping Congress in Republican control allows Trump to continue to reshape the judiciary.
Trump has mostly allowed the Federalist Society crowd to control the nomination process for the federal judiciary and the results are nothing short of astounding. I have issues with the fact that the lower court nominations have slowed down, I’d like McConnell to speed that process up, but otherwise, the work getting done on the judiciary is nothing short of astounding.
Democrats still hold every conceivable advantage going into the midterms, and it’d be crazy to think otherwise. However, Trump nominating a new judge to the bench who would start on October 1st would provide a compelling point for Republican voters to get to the polls.
The reaction from the left was universally apocalyptic. You can hear the meltdown over a DNC call, as recorded by a Politico reporter. Or Chris Matthews meltdown on live air. But in other places, I’ve seen the “#AbolishSCOTUS” hashtag. There are also the fever-dream hot takes that imagine a scenario where Trump gets impeached, and then they somehow remove Gorsuch and install Merrick Garland.
But outside the idiocy space, the two most prominent ideas floating around in liberal punditry is 1) Term limits for SCOTUS appointees or 2) Packing the Court during the next liberal Presidency to overcome a conservative voting block.
The first idea for term limits is mostly a pipe dream that envisions 18-year term limits for SCOTUS terms. I don’t foresee this happening because there is ample evidence term limits in the political sphere are abject failures, and I don’t expect any better results in the legal field. It also subjects the Supreme Court to more political swings, which is, in my opinion, a bad thing.
The second idea, court packing, is getting traction from the progressive blogosphere like ThinkProgress and Slate. Court-packing was first proposed by FDR when his New Deal legislation was losing before the Supreme Court.
Technically speaking, there’s no Constitutional requirement that the Supreme Court operates with nine justices. That’s just developed into a norm over the years. FDR threatened to increase that number to pack the court with judges sympathetic towards his politics to ram through his agenda. The Supreme Court backed down by allowing his legislation to go through. But the idea has bounced around progressive circles for years any time their agenda gets thwarted.
But there’s a reason we’ve kept nine justices. If each administration were merely allowed to add judges to the bench to get the desired result, you’d destroy the judicial branch as a check or balance on the other two branches. So when people call for court packing, that’s what they’re calling for, the wholesale destruction of the judicial branch to defeat their enemies.
If Republicans gain an effective supermajority on the Supreme Court, expect the calls for term limits and court packing to get louder.
Supreme Court Decisions
The Travel Ban survives
Unsurprisingly, to me, the Supreme Court upheld Trump’s travel ban, colloquially referred to as the Muslim ban in the media. In a nutshell, the Court ruled that the President has the inherent authority in the INA statutes to do something like the travel ban. You can read the full opinion here. The money-shot paragraph from the majority opinion was on page 24:
The Proclamation is squarely within the scope of Presidential authority under the INA. Indeed, neither dissent even attempts any serious argument to the contrary, despite the fact that plaintiffs’ primary contention below and in their briefing before this Court was that the Proclamation violated the statute.
Most people called it a 5-4 decision, which is partially correct. It’s more accurate to call it a 5-2-2 ruling because the liberal wing split on how they read it. Only Ginsburg and Sotomayor would have struck the travel ban down. Kagan and Breyer would have sent the case back down for further fact-finding.
The broad problem with both dissents from the liberal wing is that they never have an adequate answer for why a law that’s constitutional and grants the executive branch authority that’s apparently within its bounds is suddenly wrong. The majority opinion thoroughly debunks the dissents on those grounds.
NIFLA v. California
This case was big for pro-life advocates in California. The California legislature targeted Crisis Pregnancy Centers, which are typically run by pro-life groups to convince women not to have abortions, and told those centers that they had to post information on where to get abortions in their buildings.
The Supreme Court ruled this was unconstitutional because it was compulsory speech. An essential paragraph from that case made a telling point:
The licensed notice at issue here is not an informed consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed. If a covered facility does provide medical procedures, the notice provides no information about the risks or benefits of those procedures. Tellingly, many facilities that provide the exact same services as covered facilities—such as general practice clinics, see §123471(a)—are not required to provide the licensed notice. The licensed notice regulates speech as speech.
California wasn’t making the requirement just for health reasons, they specifically targeted certain groups over others. Meaning they were forcing compelled speech on certain groups, and not others.
It’s a big win for pro-life groups.
Janus v. AFSCM
The last big case was another win for the first amendment. Janus v. AFSCM struck down forced union dues for government employees on the grounds that it amounted to compelled speech and forced association with a group.
Union dues don’t just raise the problem of compelled speech, it raises the issue of subsidizing compelled speech. If you’re forced to give union dues to a union you don’t like, and whose politics don’t align with your own, that’s going to make you feel like your free speech rights are violated.
For these reasons, States and public-sector unions may no longer extract agency fees from nonconsenting employees. Under Illinois law, if a public-sector collective-bargaining agreement includes an agency-fee provision and the union certifies to the employer the amount of the fee, that amount is automatically deducted from the non member’s wages. §315/6(e). No form of employee consent is required.
This procedure violates the First Amendment and can not continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed.
The other massive issue out of this case is that the court overturned a 40-year-old case to reach its conclusion.
Links of the week
The Democratic Establishment Takes a Beating – David Byler, The Weekly Standard
This Business Will Get Out of Control – Johnathan V. Last, The Weekly Standard
Democrats Are Wrong About Republicans. Republicans Are Wrong About Democrats. – Perry Bacon Jr., FiveThirtyEight
If We Want to End the Border Crisis, It’s Time to Give Trump His Wall – Andrew Sullivan, New York Magazine
Stop cheapening the Holocaust to score political points – John Podhoretz, The New York Post
The Liberal Contribution to Trump’s Reelection Campaign: Civility is not generosity. – John Podhoretz, Commentary Magazine
The Janus Dissent’s Odd Underreading of Government Employee Speech Rights: “If an employee’s speech is about, in, and directed to the workplace, she has no ‘possibility of a First Amendment claim,'” say the dissenters — but that’s not what the First Amendment caselaw says. – Eugene Volokh, The Volokh Conspiracy
Krauthammer’s Take on Life – Jonah Goldberg, National Review
Satire piece of the week
U.S.—After Justice Kennedy announced his retirement Wednesday, the nation took a brief moment to thank the Lord that Hillary Clinton lost the 2016 election, and thus would not be able to select his replacement for the Supreme Court.
The nation acknowledged that it didn’t deserve God’s blessings but thanked Him anyway for sparing them a Clinton presidency.
“Father God, we just want to thank You that Hillary Clinton didn’t win the presidency. We know, Lord, that Trump isn’t ideal either, but hoo boy. That was a close one,” one man said in a special emergency prayer and thanksgiving service held at his church in Kentucky. “You truly are wise and sovereign.”
Thanks for reading!