Justice Kennedy’s Retirement Hands More Supreme Court Power To Conservatives

Photo by Tim Sloan/AFP/Getty Images.

The Supreme Court is about to become much more conservative.

On June 27, conservative Supreme Court Justice Anthony Kennedy announced his retirement. He is likely to be replaced with another conservative judge who will maintain the court’s current partisan makeup. Yet, the moderately conservative Kennedy’s retirement does open the possibility of the nomination of an even more rightward leaning judge.

Earlier that day and the day before, though, the Supreme Court dealt serious blows to progressive causes.

Labor unions were attacked by the Supreme Court in a June 27 ruling that public employees cannot be forced to pay union dues.

And on June 26, the Court upheld the Trump administration’s travel ban that blocks people from Iran, North Korea, Syria, Libya, Yemen, Somalia, and Venezuela from coming to the U.S. The same day, it reversed a lower court decision upholding a California law requiring anti-abortion crisis pregnancy centers to fully disclose which services they provide.

All three rulings were 5-4, straight down partisan lines.

Now as Kennedy steps down, surely to be replaced by another conservative justice, the Court’s ideological foundation will be solidified for years to come.

Photo by brownpau/Flickr.

How did we get here?

The narrow, partisan victories would likely have gone the other way if the Supreme Court majority wasn’t secured by an unprecedented Republican blockade.

In February 2016, the Supreme Court’s leading conservative voice, Antonin Scalia, died. After his passing, the Supreme Court had a 4 to 4 balance of conservative- and liberal-leaning justices. To break the tie, President Barack Obama nominated Merrick Garland, a moderate liberal, to take Scalia’s seat.

Photo by Gage Skidmore/Flickr.

In the heat of the contentious 2016 election, Republican Majority Leader Mitch McConnell announced there would be no action whatsoever on any Supreme Court nomination until the American people elected a new president.

“My view, and I can now confidently say the view shared by virtually everybody in my conference, is that the nomination should be made by the president that the people elect in the election that's now underway,” McConnell told the Capitol Hill press corps.

McConnell rationalized this decision by making the argument that it was somehow a tradition not to confirm a new Supreme Court justice in an election year. But, since 1912, six justices have been confirmed in presidential election years — the most recent being Justice Kennedy nominated by Ronald Reagan in 1988.

For eight and a half months, the Republican-controlled Congress did absolutely nothing and let the Garland nomination die on the vine.

In 2016, Trump was elected president, and in April 2017, conservative Neil Gorsuch was confirmed to the Supreme Court, giving the Republicans a 5-to-4 majority.

Low midterm turnout

Only 36.3% of Americans voted in the 2014 midterms, making it the lowest turnout in 70 years. Voter apathy favored Republicans as they picked up nine seats in the Senate, taking control of the chamber for the first time since 2006.

The new Senate majority allowed McConnell to block the Garland nomination, giving conservatives a Supreme Court majority.

The 2018 midterms matter. All elections matter.

But Democrats shouldn’t run to the polls in November just to put more Congressional checks on Trump; the Supreme Court is always in play as well.

Liberal justices Ruth Bader Ginsburg, 85, and Stephen Breyer, 79, haven’t announced they are retiring but are surely entering the twilight of their careers. If either were replaced by a conservative, it could change the makeup of the court for a generation.

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