Hanging America Out to Dry: Justice Kennedy’s Most Notable Display of Conservatism
An announcement can unify, sicken, isolate, or inspire, fundamentally altering the way people live.
For Paul Revere and William Dawes’ midnight ride of 1775, in which they warned of the impending arrival of British soldiers, the announcement ushered in the colonial militia’s mobilization. Not unlike the Patriot forces that had coalesced that night, Justice Anthony Kennedy’s most recent statement to the American public prepared an already wary left to handle further peril.
On June 27, 2018, Kennedy, a U.S. Supreme Court Justice, announced his plan to retire by the end of July, setting aflame panic from the left, and rightfully so. Although appointed by President Ronald Reagan, Kennedy sided with liberals on the court for some of the most contentious cases, especially when concerned with individual liberty and the rights of marginalized communities. The absence of his crucial swing vote, and another conservative appointment by President Trump, will reshape the lives of women, the LGBT+ community, immigrants, and many more, for a generation’s time.
An advocate for individual freedom, the Stanford and Harvard Law alum Anthony Kennedy entered the realm of American jurisprudence as a worthy second-choice. Upon Supreme Court Justice Lewis Powell’s resignation in 1987, President Ronald Reagan nominated a strict and aloof conservative to replace the seat: Robert H. Bork. The Senate, to Reagan’s dismay, rejected the candidate, leading to Reagan’s nomination of the Ninth Circuit Court’s Anthony Kennedy.
Until 1992, when he championed against the obstruction of women’s rights to abortion in the Planned Parenthood of Southeastern Pennsylvania v. Casey majority opinion, Kennedy’s contribution to the court reflected his conservative bases. Yet, even when siding with the right, Kennedy resisted partisan rhetoric, lending to his unpredictability as a jurist. From cases concerning healthcare to same-sex marriage, Kennedy’s position has proven instrumental in securing rights for Americans threatened structurally.
Now, as Kennedy leaves the court to “spend more time with his family,” as noted by CNBC’s Jacob Pramuk, women and minorities across the United States are in great danger. With a more rigid-conservative majority, the court is likely to realize many facets of the Trump agenda, such as overturning Roe v. Wade, limiting the power of the Environmental Protection Agency, and promoting mass incarceration. The court may continue to abide by precedence, but the fate of the many social policy cases that once hung on a one-vote thread are now dangerously dangling without any clear sign of rescue.
In fact, with President Trump’s nomination of Brett Kavanaugh to replace Kennedy, the stakes are even higher. Last year alone, Kavanaugh, who serves on the U.S. Court of Appeals for the District of Columbia Circuit, expressed his dissent with his court’s decision that allowed for a pregnant teen in immigration custody the right to abortion.
Kavanaugh will not only serve as a voice that restricts the rights of women and minorities in America, but his role as a justice is just as consequential globally. As Stewart Patrick of the Council on Foreign Relations warns, “[Kavanaugh] will likely take a more conservative approach, setting up a potential confrontation between a sovereignty-obsessed America and the international rule of law.” While Kennedy urged the United States to respect international law, the application of these global, legal obligations will likely erode significantly with Kavanaugh’s entrance to the court.
With a majority in the Senate, the congressional chamber that must confirm the nomination, Republicans wield the power to place Kavanaugh in the nation’s highest court. Further, despite the Democrats’ call for the confirmation to wait until after midterm elections, Senate Majority Leader Mitch McConnell made explicit his intentions to ignore that request.
So, what now?
As David Cole of the American Civil Liberties Union recommends, “[we must] urge our senators to think about this replacement as somebody who could overturn [social policy] precedents if he chose to.” If Kavanaugh’s confirmation is to be tackled, if the rights of those disadvantaged and marginalized are to be preserved, then the public must remind Senators of their most essential purpose: serving, representing, and protecting the people.
Republicans currently hold 51 of 100 seats in the chamber, but Richard Hasen of Slate recommends liberals place tremendous pressure on two pro-choice, moderate Republican Senators: Susan Collins and Lisa Murkowski.
But what if the pressure fails and Kavanaugh is confirmed?
If the court is lost, then the pressure must turn to the people. To limit the effect of the court’s damage and restore a progressive citizenry, the American people must participate and engage through advocacy and elections; the people must rigorously fight to elect politicians who believe in their rights and will work to safeguard their civil liberties.
An announcement can yield several outcomes. However, for the case of Justice Kennedy’s resignation from the Supreme Court, there can be only one response from the left: inspiring strength. Like the Patriots in Lexington and Concord, the American people must remain diligently disposed, ensuring that their existence is not invalidated, endangered, at the whim of a conservative-controlled court.