The retirement of Justice Anthony Kennedy from the Supreme Court, and the imminent nomination of his replacement by Donald Trump, confirm that the United States has entered a new era. Or rather, it has left an old one.
We might or might not be seeing the birth of an institutionalised, twenty-first century populism; we’ll have to wait and see who Trump nominates and how he or she acts. But we are seeing the judicial demise of big-state liberalism.
On the face of it, the change is almost invisible. With Kennedy on the bench, five of the nine Supreme Court judges were nominated by Republican presidents, and four were nominated by Democratic presidents. With Kennedy replaced by a nominee congenial to Donald Trump and tolerable to the Republican majority in the Senate, five of the nine judges will still be Republicans nominees and four will still be Democrats.
The difference is one of ideology and context. Anthony Kennedy was nominated by Ronald Reagan, but he sided with the ‘liberal’ members of the court on crucial decisions on abortion rights, the death penalty, detainees in Guantanamo Bay, and gay rights, including the 2015 ruling that established the right to same-sex marriage in federal law.
Kennedy also wrote the 2016 decision that upheld the use of race as a criteria in college admissions. Has the polarisation of American politics caused Republican-nominated judges to become more “conservative” in their findings, and Democratic-nominated ones more “liberal” since Reagan’s day?
The judges nominated by the first President Bush, David Souter and Clarence Thomas, are less predictable than one of those nominated by the second President Bush, the self-described “practical originalist” Samuel Alito. The opinions of the judges nominated by Bill Clinton, Ruth Bader Ginsburg and Stephen Breyer, are less predictable than those nominated by Barack Obama, Sonia Sotomayor and Elena Kagan. Yet George W. Bush’s other nominee, the generally conservative John Roberts, often joined Anthony Kennedy in aligning with the “liberal” judges.
All Supreme Court judges are conscious of the dignity of the court, and the responsibility that comes with the notorious nylon robes. A few months ago, I attended a dinner at which the speakers were the Clinton-era veteran Samuel Breyer and the Trump nominee Neil Gorsuch. They were congenial in each other’s company, modest about the constitutional weight they bore, and vocally committed to their common responsibility, maintaining the independence and standards of the court. The media image of the Supreme Court as a judicial civil war doesn’t reflect the reality of its decision-making. Nor do theories of judicial interpretation always align with party politics.
The alignment of party politics can, however affect which judicial interpretation makes it to the bench. The Republicans want to use their tight Senate majority—51-49, narrowed to 50-49 due to John McCain’s illness—to secure an appointment before the midterms in November. The Democrats haven’t forgiven the Republicans for blocking Obama’s nomination of Merrick Garland, and are hoping to undo the Republican majority entirely in the midterms. On current polling, that’s a long shot. So Donald Trump’s second nominee for the Supreme Court will probably make it through the Senate confirmation process.
Who will it be? Trump, assisted by the Heritage Foundation and the Federalist Society, prepared a list of twenty-one possibilities when it came to replacing Antonin Scalia. With Gorsuch now on the bench, twenty remain. The front-runners include mainstream conservatives like Brett Kavanagh, who clerked for Anthony Kennedy, and played a significant role in drafting the Starr report, which recommended the impeachment of Bill Clinton; and Thomas Hardiman, the runner-up to Gorsuch in the 2017 nomination process, whose recent verdicts on gun rights and religious freedom have been predictably conservative, but who recently issued a “liberal” verdict on an immigration asylum case.
Other candidates would bring an even more unpredictable element onto the bench. Amy Comey Barrett, nominated by Trump to the Court of Appeals for the Seventh Circuit, is strongly anti-abortion. William Pryor of the Court of Appeals for the Eleventh Circuit, has described Roe v. Wade as the “worst abomination” in the history of constitutional law. Don Willett of the Texas Supreme Court is a libertarian. And if Trump wishes to cultivate ethnic alliances as Obama did with the nomination of Sonia Sotomayhor, then Amul Thapar, appointed by Trump to the Court of Appeals for the Sixth Circuit, would become the first judge of South Asian descent.
Nancy Pelosi is right to say that “the future of our democracy is at stake” with Trump’s next nomination to the Supreme Court. It is at stake with every nomination—because of the Court’s constitutional powers, and because Americans, as Tocqueville observed, turn moral dilemmas into legal precedents. But the predictions of the imminent and complete annulment of gay marriage, the right to abortion, and affirmative action programs are scaremongering.
What is more likely to happen is a more limited process—call it refinement, or retrenchment—in which the composition of the court leads to limited reconsideration of flagship liberal decisions, and to verdicts reflecting current public opinion. There can be little doubt, though, that such verdicts will begin a long-term trend, driven not just by electoral results, but also by accidents of demography. That trend leads away from the Democrats and towards the Republicans.
Consider the ages of the front-runners for Kennedy’s seat. Pryor is fifty-six years’ old, Kavanagh is fifty-three, Hardiman is fifty-two, Thapar is forty-nine, and Comey Barrett is a sprightly forty-six. Then remember that Ruth Bader Ginsburg, though clearly in possession of all of her marbles, is now a less than sprightly eighty-five years’ old, and that Stephen Breyer is seventy-nine, two years’ younger than Anthony Kennedy. The next-youngest judge, Clarence Thomas, is seventy. Trump’s second appointee could push the court towards the Republicans for at least a decade.
Not since the 1930s has the composition of the Supreme Court tended so heavily towards the Republicans. On Thursday, the retirement of Anthony Kennedy was described by more than one analyst as the biggest moment in the history of the Supreme Court since Bush v. Gore (2000) and Roe v. Wade (1973). That moment, however, isn’t quite with us. It is possible—likely, even, should he win a second term—that Donald Trump will get to nominate three judges, and tip the balance even further.
In the short term, a court with five Republican nominees and four Democratic ones can still produce surprise decisions. In the medium term, a court with six Republican nominees, three of them from a president determined to erase the infamy of Obama and the tradition of big-state liberalism on which he drew, really might transform the legal landscape. The rulings the Supreme Court will issue over the next decade may be the final verdict on twenty-century liberalism.
