This is going to be like the Battle of Minas Tirith. You know that, right? Wonder where she is today:
I thought about writing a little piece assessing Justice Kennedy’s legacy. If you favor gay marriage, you owe it to him, starting with his majority opinion in Casey (1992). That is what he will be most remembered for. Love it or hate it, you can’t deny that it was a massive deed.
But nobody cares to look back on Kennedy’s tenure on the Court. All eyes turn to the coming confirmation hearing. Whoever accepts President Trump’s call for the nomination will be one of the bravest men or women in public life, because he or she is going to be attacked with unrelenting fury from the Left. This, from a constitutional law prof at Princeton:
Just the other day, a student asked “When you say ‘political Armageddon’, what exactly does that look like in a democracy?” And here we are–right on cue.
— Robert P. George (@McCormickProf) June 27, 2018
There is already wailing and gnashing of teeth among the left. Here’s one of the printable examples:
For a lot of white evangelicals, this moment was worth every migrant child forever traumatized, every refugee family denied safety, every sexual assault victim betrayed, every white nationalist emboldened, every lie told. These are the ends that justified the means.
— Rachel Held Evans (@rachelheldevans) June 27, 2018
I will say that Gorsuch, plus whoever is coming next, is, are two facts that Trump-voting social conservatives can and ought to use to beat Trump-skeptical conservatives like me over the head, in a we-told-you-so fit of vindication. I find it harder to justify my sitting out the presidential election in light of the facts of this tweet (and I would imagine that leftists who despised Hillary so much that they sat out the 2016 election would feel the same way):
Bears repeating: Had Clinton won, she’d likely have replaced Scalia, Kennedy, and eventually Ginsburg (85) and Breyer (79).
-That’d make six relatively young liberal justices and a lasting majority.
-Now, it’ll be five conservatives, all 70 and under.
— Dave Lawler (@DavidLawler10) June 27, 2018
Mitch McConnell said today that the Senate would confirm a nominee this fall. Given the fact that the Senate might flip to the Democrats after November, the GOP won’t waste time here.
(Chuck Schumer quite understandably called on McConnell to follow the same policy he did to deny Merrick Garland a hearing in an election year. McConnell, a hardballer if ever there was one, quite understandably didn’t take this seriously.)
After the next justice is seated, there will be a 5-4 conservative majority on the Court — Kennedy, of course, having been the swing vote for years. Justice Ginsburg is 85 years old. Justice Breyer is 79. If Trump is re-elected in 2020, and he still has a Republican Senate, there is a decent chance that he could leave office with a 7-2 conservative majority.
Let me temper the conservative elation — which, believe me, I share — with a couple of Debbie Downer points.
First, the hearings could well be a catalyst for real violence, given the hysteria that’s already afoot in the country, and that, given the stakes of this nomination, will be ramped up to levels we may not have seen since 1968. Let’s revisit this January piece from National Review’s Michael Brendan Dougherty:
I’ve started to think that Supreme Court Justice Anthony Kennedy may be the one man preventing the United States from political breakdown.
MBD does not like Kennedy or respect his jurisprudence. But he said that SCOTUS, in the Kennedy era, has played an important political role:
And both sides have reason to pity themselves as the losers of the [political] system. Partisan Democrats, with some justification, feel that the constitutional system favors dirt (geography), so it rewards Republicans with too many senators and even electoral votes than they would otherwise win. Many partisan Republicans also feel that their votes go for naught, and that elites in the media, donor class, and social scene of Washington, D.C., constantly make Republicans under-deliver on their promises. The mass democratic character has also been seeping into other institutions, with federal courts issuing boldly partisan decisions whose logic would embarrass them if their partisan character didn’t overwhelm all other considerations.
The Supreme Court’s role in this scene, with Kennedy as the swing justice, has been to moderate and restrain the ambitions of each party. Kennedy deals out victories and defeats to each side — giving slightly more defeats to social conservatives. In effect, he constrains what each side can do to the other. His mercurial jurisprudence replicates and even gives the savor of legitimacy to a closely divided country.
So I’ve started to worry that if the Court soon consolidates to the left or the right, partisans on the losing end of that bargain will swiftly lose faith in democracy itself. A non-swinging Supreme Court would give the impression of super-charging the ability of one party to act, and restraining its competitor. A consolidated Supreme Court could open up whole new fields of legislation for one side to act against the other. At that point, what would happen?
We are going to find out.
Along those lines, this:
Courts are a bad vehicle for policymaking. Courts are a bad vehicle for policymaking. Courts are a bad vehicle for policymaking.
I tell you three times, and what I tell you three times is true.
— Megan McArdle (@asymmetricinfo) June 27, 2018
Third, I see that liberals are freaking out over the prospect that Roe could be overturned. I think they’re right to be worried, obviously, and us pro-lifers are right to be excited. But let’s not get ahead of ourselves. Overturning Roe would only mean that regulating abortion returns to the states. If you live in a socially liberal state now, you don’t have anything to worry about. That’s not going to make you happy, but it’s not Armageddon. And there is no realistic chance that Obergefell will be overturned. But even if it were, again, that only means that the gay marriage question devolves to the states. Gay marriage is overwhelmingly popular. There might be a handful of Southern states (plus Utah) that might vote against it, in a popular referendum. But even they would fall eventually. Same-sex marriage isn’t an issue for younger voters, who support it by a wide margin.
Anyway, take a look at this point:
Kennedy retiring is where the Roy Moore own goal really, really hurts. We now only have 51 votes, but two of those are Murkowski and Susan Collins, who will likely be reluctant to support a 5th pro-life justice. Mitch will have to put the screws on to get to 50.
— James Hasson (@JamesHasson20) June 27, 2018
For all that, this is a great day for conservatives. Following Michael Brendan Dougherty, though, I’m not at all sure it’s a great day for America’s future. However, had Hillary Clinton won, conservatives would be in the same miserable position today as liberals are.
It is not at all healthy for the republic that the Supreme Court matters so much. But we are where we are.