Ruger - American justice 2018: the shifting Supreme Court

American Justice 2018

Garrett Epps, Consulting Editor

Todd Ruger

Copyright 2018 University of Pennsylvania Press

All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher.

Published by
University of Pennsylvania Press
Philadelphia, Pennsylvania 19104-4112
www.upenn.edu/pennpress

Printed in the United States of America

A Cataloging-in-Publication record is available from the Library of Congress

Cover design by John Hubbard

ISBN 978-0-8122-5085-5

The most important moment in the U.S. Supreme Courts most recent term came on its final day, June 27, 2018, with the revelation of one of the most closely guarded secrets in American politics.

The clues were all around. Justice Anthony M. Kennedy was about to turn eighty-two years old. His wife, Mary, attended the last oral arguments of the term. His writing in one of the terms final cases sounded notes of resignation that he had done all he could with his time on the court. His grandchildren showed up in the courtroom on the last day of the term to watch the justices announce the courts decisions.

But few knew Kennedys plans. Some court watchers had connected the dots and speculated that the longest-serving justice was leaving the court. Similar predictions of Kennedys retirement had proved false a year earlier, but as the Washington, D.C. summer heated up, so again did the rumors. Hadnt Kennedy appeared chummy at public events with President Donald Trump, the man who would pick his successor? Wouldnt Kennedy be concerned about what that choice would mean for his legacy on womens access to abortion and gay rights? Would he really want such a divisive president to name a second Supreme Court justice?

The nine months of the 2017 October Term had tested the justices on numerous high-profile and controversial social issues: Trumps travel ban that appeared to target Muslims, Christian businesses that turned away gay customers, and even a fight over political districts in which one side contended the very future of the countrys representative democracy was at stake. Justice Neil Gorsuch, diving into his first full term, helped deliver a stream of conservative decisions that exposed discord among the justices and fueled criticism that the court continued to favor Republican interests.

But on that last day before the summer break, Kennedy would upend the court and thrust it even further into the political fray.

Kennedy stepped down from the court in a style lawyers might call de minimisa term generally meaning an insignificant amount. He passed on a chance to make a grand retirement announcement from the bench. Instead, he sent the White House an unadorned two-paragraph letter addressed to My dear Mr. President. He directed the Supreme Courts press office to send out a news release with only one quote from him: It has been the greatest privilege to serve our nation in the federal judiciary for 43 years, 30 of those years on the Supreme Court. He met with news reporters who cover the Supreme Courtbut only if they agreed not to publish anything he said.

The fallout for the Supreme Court and the nation, however, is anything but de minimis. Kennedy spent the previous decade as the deciding vote in the courts most contentious casesthose dealing with the countrys most polarizing political and social issues. Over the years, he had backed access to abortion, led the way on gay rights, and cut down campaign finance laws. In many cases, the nine-member court would split ideologically between four reliably liberal justices and four typically conservative justices. That left Kennedy as a so-called swing vote who could join either side. Usually, he sided with the conservative wing, but sometimes he joined the liberals.

That spot in the middle meant Kennedys views played an outsized role in shaping the court, and by extension, he held great sway over how the nations court system altered the cultural and political landscape. Entire cases were constructed around winning him over. His words during oral arguments were analyzed, and overanalyzed. That was particularly true during the 2017 October Term in cases about LGBT rights, the future of online commerce, and the drawing of political maps. It might have been hard to predict his retirement, but it was easy for court watchers to foresee his departure as a momentous change for the institution and the nation.

This Supreme Court vacancy is among the most consequential of my lifetime, Delaware Democrat Senator Chris Coons, a member of the Senate Judiciary Committee, told reporters. In just the past few weeks, as the Supreme Court has issued decisions on voting rights, taxes, privacy, labor rights, executive power, and police searches, weve seen as clearly as ever that our courts matter in the lives of every American.

Those decisions served not just as the final word on major legal issues but as a window into the balance of power within the court itselfone upended by Kennedys announcement on the final day. The cases revealed how major issues arrive at the court, how the justices view the role of the court in shaping American society, and how much politics in turn shapes what happens in the courtroom.

But the 2017 October Term will be remembered as Kennedys last.

The vacancy Kennedy left behind threw the Supreme Court headfirst into the political fray at an overheated moment in American history. Trump would get to name Kennedys successor, ensuring that this person would be reliably conservative. The effort to confirm that pick would thrust the Senate into a high-pitched battle at a time when Republicans and Democrats in Washington, D.C. were already in an all-out war over just about every other aspect of political life.

Throughout the courts 2017 October Term, Trump proved to be an unpredictable president who charted a far different course in decorum and statecraft than his predecessors. He displayed a loose relationship with the truth and the details of governmental policies, and he often attacked the legal system and the judges in it. A special counsel investigation dug into connections between his campaign and Russian operatives who interfered in the presidential election that delivered Trump to the presidency. His immigration policies drew protests. The divide was cultural as well: even title-winning professional sports teams didnt make traditional visits to the White House amid objections from players and coaches about the presidents racially tinged rhetoric and policies.

At the same time, a hyperpartisan Congress, controlled by the Republicans and in a near constant state of gridlock, appeared unable or unwilling to respond to Trump and his passionate base of supporters. George F. Will, a longtime conservative columnist, described it all as a carnage of Republican misrule in Washington and urged the country to vote for Democrats in the November 2018 elections. Democrats escalated their opposition to almost anything Trump did. A middle ground among everyday Americans appeared to be rapidly disappearing, fueled by cultural divisions and an exhausting around-the-clock news cycle that featured an endless series of scandals and crises.

Trumps Supreme Court pick would have to navigate through this partisan obstacle course. With Republicans controlling the Senate, conservatives anticipated replacing the justice in the center with a justice well to his right. It would tip the courts ideological center of gravity in a conservative direction. Democrats and their allies were apoplectic, warning that any Trump pick would erase Kennedys middle-ground positions, that abortion rights in the country were doomed, and that progress for LGBT rights was set for reversal.