Many people who weren’t too fond of Donald Trump held their noses and hoped that voting for him would at least mean that the Supreme Court of the United States would get an “originalist boost.” This week, their gambled proved to be exactly right. Presidents Bill Clinton, George Bush, and Barack Obama nominated only two justices in all eight years of their presidencies. With the announcement of Justice Anthony Kennedy’s retirement yesterday, President Trump will get to nominate that many in his first two years.
The ramifications are staggering.
Though Kennedy was appointed by conservative stalwart Ronald Reagan, he was considered unpredictable and moderate. Yes, he ruled conservatively on some core constitutional freedom cases that related to the First and Second Amendments, but he also helped advance and protect abortion rights and the sexual revolution. Slate‘s Mark Joseph Stern tweeted, “Justice Kennedy’s retirement is a catastrophe for liberals. Abortion access, same-sex marriage, voting rights, environmental regulations—they’re all on the line now. This is nothing short of a crisis for the left.”
That about sums it up.
But what leftists see as a crisis, Americans see as an opportunity. National Review described the prospects best:
I’ve long said that the unelected Supreme Court has way too much power over the lives of Americans, and have proposed a Convention of States to rein in the power of an overreaching federal government. However, within the context of our current government framework, I can’t help but be filled with hope.
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.
I know, I know. Conservatives have had the chance to populate the Supreme Court and have failed miserably. The majority of the current roster was appointed by — get this — Presidents Reagan and George Herbert Walker Bush. Even so, the Court even moved left on key issues. As David French wrote, “Presidents don’t nominate robots. They nominate people who possess their own will. It will be imperative that conservatives closely evaluate Trump’s potential picks, but that person — no matter his or her record — will not only possess immense power, they’ll face immense pressure. May he or she possess not just the right philosophy, but also the necessary character to do all the job requires.”
Image Credit: via Flickr
|Anthony Kennedy – The Oyez Project|