Politics, SCOTUS, Supreme Court

Replacing Justice Kennedy: A Legacy-Defining Achievement For President Trump

The ramifications of a Gorsuch-like conservative replacing a Kennedy swing vote would reverberate for a lifetime.

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Justice Neil Gorsuch and his boss turned colleague, Justice Anthony M. Kennedy (photo by Eric Thayer/Getty Images)

Will Justice Anthony Kennedy retire? The rumors have been swirling for months, and they resurfaced again last week. Just before the July 4th holiday, NPR reported that Kennedy is telling clerkship applicants that he might retire, raising suspicions once more.

While much has been made of the bogus Russia collusion allegations, the firing of Jim Comey, and Trump’s Twitter feed, none of these sexy, salacious headline grabbers will define the way history views a Trump presidency. An Anthony Kennedy retirement would.

The ramifications of a Gorsuch-like conservative textualist replacing a Kennedy swing vote would reverberate for a lifetime, potentially reversing the decisions on some of the biggest issues of our time.

On abortion, Roberts, Alito, Thomas, and now (the Scalia-esque) Gorsuch provide four solid pro-life-oriented views. With four liberal justices in opposition, Kennedy is the key, and he usually sides with the liberal wing.

Kennedy, a Reagan-appointed judge, joined the plurality opinion in Planned Parenthood v. Casey, reaffirming the holding of Roe v. Wade, which legalized abortion nationwide.  Four conservative justices dissented; one more would have made the difference in potentially overturning Roe. More recently, in Whole Women’s Health v. Hellerstedt, a 5-3 decision in Scalia’s absence, Kennedy’s vote was the key to striking down Texas’ abortion restrictions, which mandated that providers have admitting privileges at local hospitals. Again, one less Kennedy vote and one more textualist one would redefine history.

Likewise, on the issue of same-sex marriage, Kennedy’s vote was defining. He authored the 5-4 United States v. Windsor decision, which struck down President Bill Clinton’s federal ban on same-sex marriage.   In Obergefell v. Hodges, which essentially barred states from deciding the meaning of marriage, Kennedy’s vote was crucial.

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On executive power, as George Washington Law Professor Jeffrey Rosen wrote in 2008, “The views of Justice Kennedy on executive power in the domestic and foreign spheres are indeed defining the direction of the Roberts Court.” For example, in Boumediene v. Bush, Kennedy’s one swing vote decided that terrorists detained at Guantanamo have a constitutional habeas-corpus right to challenge detention.

The implications of a fifth vote for an expansive view of executive power are far-reaching. Though the Court decided unanimously that the temporary and total injunction on Trump’s travel ban was not merited, the decision might be a closer one when the Court decides the full merits of the case.

This is not to say that all of the Court’s jurisprudence would change; some would remain constant – like decisions on religious liberty.  On religious liberty or Establishment Clause cases, Kennedy’s views are in line with conservative justices. In County of Allegheny v. ACLU, Kennedy sided with Scalia and the conservative wing in deciding that it is constitutional to display both a Nativity scene in a courthouse stairwell and a Menorah outside of a city building. And in Town of Greece v. Galloway, he wrote, “The town of Greece does not violate the First Amendment’s Establishment Clause by opening its meetings with sectarian prayer that comports with America’s tradition and doesn’t coerce participation by nonadherents.”

Nevertheless, the Court would undergo radical ideological change if President Trump replaced Kennedy’s swing vote with a more predictable textualist, orginalist justice, like Gorsuch. A successful nomination and confirmation of a Scalia-like figure no doubt would be an uphill battle, but with Republicans eliminating the nuclear option and paving the way for majority vote confirmations, it is a feasible one.

Shaping the Supreme Court for a generation would be a legacy-defining achievement for President Trump.  It would force the small but loud cohort of so-called “Never Trumpers” to show whether they prize conservatism over personal disdain for the president.

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Earlier:

kayleigh-mcenany-2017Kayleigh McEnany is a CNN political commentator. She is a graduate of Harvard Law School and Georgetown University’s School of Foreign Service, and she also studied politics at Oxford University. In addition to writing a column for Above the Law, she is a contributor for The Hill. She can be found on Twitter at @KayleighMcEnany.

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