Every day’s developments produce plenty of cause for hysterics, but I’m afraid the retirement of Supreme Court Justice Anthony M. Kennedy will not prove to be much cause for either the woe or jubilation of the past week.
In its immediate post-Kennedy incarnation, the Supreme Court will continue along the path it has trod for 30 years, which is to solidify and expand the power of corporations and concentrated wealth in all matters both civil and governmental, which is to say that it will nearly always take the Republican position if there is one, whatever it may be at the time.
It must be remembered that Anthony Kennedy, while laudably the occasional protector of the speech and privacy rights of flag burners, women and sexual minorities, authored one of the worst decisions of the past two decades: Citizens United v. FEC (2009), which declared that the deep coffers of corporations and other monied interests were a form of corporate speech and that the owners could not be restrained from using their bounty limitlessly to elect or defeat politicians of their choosing.
Kennedy joined the court’s other Republicans last week in sanctifying President Trump’s travel ban on Muslims. Most courts had found that it was a ban on Muslims — which violated the Constitution’s establishment clause — because the president repeatedly said it was. But Kennedy and his confederates ruled that just because Trump said banning Muslims was his purpose didn’t make it so. Besides, they said, because Trump said he was protecting national security, that concern overrode the establishment clause.
What the president’s travel order does is allow travel to the U.S. from Muslim countries (Saudi Arabia, Egypt and United Arab Emirates) that had sent terrorist assassins to the United States and where he had business interests, but ban travel from Muslim countries that had not sent terrorists and where he had no commercial ties.
We are supposed to miss a justice who follows such reasoning?
On labor relations and arbitration, voting rights, consumer interests and antitrust matters, Kennedy was a reliable ally of power and money.
Of course, there are the fields of abortion and gay rights, where Kennedy’s loss and Trump’s promises raise fanatical hopes and fears that Roe v. Wade and equality for sexual minorities will be reversed. To be sure, nothing helpful for the rights of women, gays, lesbians or transgendered people will come out of any Trump-suffused court, but neither will the court outlaw abortion or rescind the protection of homosexuals, including same-sex marriage.
They are settled law now, supported by most Americans, and most Republicans in power, including Trump, will not want the law summarily reversed. All that Trump wants on abortion and gay rights, as well as on matters like North Korea, is just to be seen as doing something his base wants. As soon as he appoints his justice, he will proclaim abortion finished and that will suffice.
That is not to say that the Trump court will not embroider on the edges of the law, perhaps by allowing some state-imposed restrictions that do not flagrantly deny a woman’s right to an abortion. That is to say, the legal war will continue, with some encouragement to the handful of Arkansas legislators whose reason for existence is to make it a crime for women to get an abortion.
Trump was the first candidate for president — briefly, for the Reform Party nomination in 1999 — to vow eternal opposition to outlawing even partial-birth abortions. “I am very pro-choice,” he declared. He had no problem with homosexuality or gay marriage.
Although Trump had promised that he would appoint only justices who were committed to overturning Roe v. Wade, he promised Sen. Susan Collins (R-Maine) last week that he would not ask any candidate how they felt about it. (There were no promises about his aides’ conduct.) Then he proffered his own solution for the court— leave abortion to the states. Then women who could afford it could visit a state where abortion was legal and only the poor would have to endure unwanted pregnancies. That, of course, would require the reversal of Roe v. Wade.
Remember that, like Trumpism, Republicanism is a shifting target. Roe v. Wade is Republican jurisprudence. Five of the seven justices who decreed in 1973 that the Constitution gave women the right to have a medical procedure they needed for their physical and mental health were Republican appointees. One Democrat and one Republican voted no.
Before Reagan, the liberal and libertarian quotient in the Republican congressional branch was about as strong as Democratic progressivism. The party only recently adopted abortion and homosexuality as wedge issues to pry religion-motivated voters away from Democrats. Every candidate for justice knows that with Trump the posturing is all that counts and that, like the chief justice, they had better not flout the will of a majority of voting Americans.
I view my job in these parlous times as tamping down both unreasoning fears and expectations. This is the best that I can do.