Courts

Why Justice Kennedy's Retirement From The Supreme Court Is Not The End Of The World

Yes, it's an important event -- but some of the reactions have been hyperbolic and over the top, and we all need to calm down.

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Justice Anthony M. Kennedy (Photo by David Paul Morris/Getty Images)

Yesterday, Justice Anthony M. Kennedy announced his retirement from the U.S. Supreme Court, effective July 31. He informed President Trump of his intentions in a short, two-paragraph letter, which he hand-delivered to the White House on Wednesday afternoon.

During his three decades on the Court, Justice Kennedy, 81, was the so-called “swing justice,” sometimes siding with conservatives and sometimes with liberals. He cast deciding votes and wrote landmark opinions on a whole host of important issues, including abortion, affirmative action, campaign finance, the death penalty, free speech, and LGBT rights. But now he’ll be replaced by a nominee from President Donald Trump — a justice who will surely be far more conservative than AMK, moving SCOTUS significantly to the right.

The news of Justice Kennedy’s retirement has been met with much weeping and gnashing of teeth. Based on my colleague Elie Mystal’s cri de cœur and the meltdowns people were having on Twitter, you’d think that AMK’s retirement marked the end of the Republic.

I’m here to tell you that’s not the case. Liberals should be less despondent — and conservatives should be less giddy — about Justice Kennedy’s retirement.

This time next year — or the year after that, or the year after that — things won’t be that different. We won’t be living in a nation where abortion, gay marriage, and affirmative action are all illegal by June 2019 — or June 2020, or June 2021. There might be some changes at the margins, but nothing fundamental.

The judiciary is simply one branch — the least dangerous branch, in the words of Yale law professor Alexander Bickel — in our democratic system of governance. As Alexander Hamilton famously wrote of the judicial branch, “It may truly be said to have neither FORCE nor WILL, but merely judgment.” The judiciary’s actions are cabined and frequently overruled by the other branches. And it moves very slowly, especially compared with the executive and legislative branches.

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The Supreme Court moves at an especially glacial pace. It can’t just reach out and decide whatever issues it likes; it must wait for the right cases to percolate up to it. When it does decide cases, because of the doctrine of stare decisis, or respect for precedent, it generally adheres to its prior decisions; it doesn’t overrule past decisions lightly. (Yes, I’m aware of Janus overruling Abood, and the travel ban opinion repudiating Korematsu — but how many other examples do you have from this Term? It’s fair to say that express overruling is both rare and carefully considered.)

Imagine that some conservative interest group wants to get SCOTUS to reverse itself on abortion or gay marriage. First, a case properly teeing up the issue must be filed in a lower court. Then the case has to make its way up through the appeals courts to the Supreme Court. The Court has to agree to hear the case — which it often doesn’t do immediately, preferring to wait for the issue to develop more in the lower courts. Finally, the Court has to decide the case — and the conservatives have to rustle up five votes for the dramatic step of overruling a past decision on a major, hot-button issue.

That’s not easy to do — especially if the overruling would go against public opinion or create a major firestorm. As political science professor Matthew Dickinson notes, “The high court is a fundamentally political institution, one whose members are deeply concerned about maintaining its independence and legitimacy…. [T]he court will rarely allow itself to get out in front, or fall very much behind, prevailing public opinion.”

Let’s look at two specific issues, gay marriage and abortion. Last year, during an earlier round of Kennedy retirement speculation, I wrote a post entitled 4 Reasons Why Gay Marriage Is Safe, Even After Justice Kennedy Retires. My reasons:

1. Chief Justice John G. Roberts will blink.
2. The reliance interests at stake could not be more powerful.
3. The shift in public opinion is overwhelming and irreversible.
4. There are other outlets for conservative qualms about gay marriage.

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Read my full post for more; I stand by its analysis. Obergefell v. Hodges, the 2015 ruling that made marriage quality a nationwide reality, is not getting overruled. Replacing Justice Kennedy with a staunch social conservative might mean incrementally more protections for religious objectors — like the plaintiff in the Masterpiece Cakeshop case, a baker who refused to make a cake for a gay wedding — and reasonable minds can disagree on where to strike the balance between religious freedom and LGBT equality. But Obergefell and marriage equality overall are safe.

Now consider abortion. Much of my reasoning on Obergefell applies to Roe v. Wade. Chief Justice Roberts is an institutionalist who guards the credibility and political capital of the Court closely; he would surely want to avoid the epic s**tstorm massive, unfathomably bitter, nationwide controversy that overruling Roe would create. This is why he blinked in NFIB v. Sebelius, knowing that striking down Obamacare would have caused huge political and economic disruption, putting the Court at the center of a raging national controversy — a controversy of its own creation.

Roe was decided in 1973, meaning that we’ve had almost a half-century of legalized abortion in the United States. We can argue about whether that’s a good or bad thing, but there’s no disputing that Roe implicates significant reliance interests. And it also enjoys significant public support (despite criticism from many quarters, including liberals like Justice Ruth Bader Ginsburg); almost 70 percent of Americans oppose overruling it. For better or worse, it’s not getting overruled.

This is not to say that Roe won’t get limited or cut back, or that the Court won’t start upholding more regulation of abortion. With Justice Kennedy replaced by a more conservative jurist, the Court probably will shift a bit to the right on abortion (and reasonable minds can disagree on how much regulation of abortion is appropriate). Such shifts in abortion jurisprudence are nothing new; just compare Stenberg v. Carhart (2000), striking down a Nebraska statute prohibiting what it referred to as “partial birth abortion,” with Gonzales v. Carhart (2007), upholding a very similar federal law. But Roe and the basic right to an abortion are safe.

Let’s say I’m wrong on both of these issues, and the Supreme Court somehow decides to create two gigantic national controversies by overruling Obergefell and Roe. It would take a long time — think the mid 2020s, at the earliest — and it would be ugly. Protesters would descend upon One First Street every day of the year, the Court would be vilified on op-ed pages and cable news, and the justices would be accosted in public and berated wherever they go. But let’s say it happens; what then?

The issues would revert to the states — and much would remain unchanged, for millions of Americans. Many states already have their own constitutional provisions, statutes, and high-court decisions that protect abortion, gay marriage, and all sorts of other rights — often more robustly than the federal constitution. See generally Judge Jeffrey Sutton’s important new book, 51 Imperfect Solutions: States and the Making of American Constitutional Law (affiliate link).

What about a state where a certain right isn’t protected? In that situation, citizens can persuade their state legislators, governors, or supreme court justices — and, let’s not forget, their fellow citizens — that the right in question should be protected.

Both progressives and conservatives cannot, and should not, rely on the courts to fight all their battles. If the departure of a single justice from the Supreme Court can put a right in jeopardy, whether it’s the right to an abortion or the right to carry a firearm, then the foundation of that right needs to be stronger.

We should all heed the advice of today’s New York Times editorial: With Kennedy Gone, Justice Must Be Won at the Ballot Box. Or ponder the words of Barack Obama, from his 2006 book, The Audacity of Hope: “In our reliance on the courts to vindicate not only our rights but also our values, [have we] progressives lost too much faith in democracy?”

UPDATE (12:45 p.m.): For an opposing, far more pessimistic view, see this post by Kathryn Rubino, John Roberts Will Not Save Us.

UPDATE (4:00 p.m.): One other point that I should have made in this piece, fairly high up, but forgot: remember that Justice Kennedy, at the end of the day, was a fundamentally conservative justice. This is the justice who wrote Citizens United, after all. So replacing an 80 percent conservative justice like AMK with a 90 or 95 percent conservative justice will not be as huge a shift as many think.

Sure, AMK had some high-profile defections, most prominently on LGBT rights. But over his long career, he voted with the conservatives far more than the liberals (especially in the Term just ended). In the words of Dahlia Lithwick, there’s a case to be made that Justice Kennedy was “was never anything but a staunch conservative who enjoyed occasional casual day trips to the left side of the bench.”

UPDATE (6/28/2018, 6:29 p.m.): For continued analysis, please see my new post, Justice Kennedy’s Retirement From The Supreme Court: Answers To Your FAQs.

Earlier: 4 Reasons Why Gay Marriage Is Safe, Even After Justice Kennedy Retires

DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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