Justice Kennedy’s Retirement Spells An Uncertain Future

Much of the nation fears erosion of rights for women, immigrants, and LGBTQ people. But all is not lost. There is work we can do, starting at the voting booth.

Yesterday, Justice Anthony Kennedy announced his retirement, and it felt like the bottom completely dropped out from under us. In some ways, it felt worse than Election Night 2016, when we realized the country had elected a rage-fueled bigot kleptocratic dictator-wannabe for president. The loss of Kennedy feels worse because it really is the death knell for the Supreme Court. It’s no exaggeration to say we’re going to see Roe v. Wade utterly eviscerated or overturned within the next couple of years. But there’s so, so much more that is just as bad.

At first glance, it doesn’t seem like it would be such a blow to lose Kennedy. He’s a conservative appointed by Ronald Reagan and, as the swing vote, he swings right pretty often. Indeed, for the 2017-2018 term, Kennedy voted with the conservative wing of the court in every case this term when there was a split 5-4 along conservative versus liberal wings. But Kennedy has also been an unlikely champion of liberal goals at times. He cast the deciding vote—and wrote the opinion—in Obergefell v. Hodges, the decision that legalized same-sex marriage. He also joined the liberal justices for United States v. Windsor, the decision that struck down the Defense of Marriage Act. Back in 1992, he even authored an opinion in Planned Parenthood v. Casey, which reaffirmed the constitutionality of abortion rights.

In other words, at least on some key social issues, Kennedy at least gave us a shot at a favorable ruling. There’s no way that his replacement, appointed by Trump and sure to be driven by the hyper-conservative Federalist Society, will ever swing left, especially on things like same-sex marriage and abortion.

Roe will likely be first on the chopping block if the Court can quickly take a case that is a suitable vehicle to overturn it or to undercut it so much that it becomes functionally non-existent. Conservatives have wanted to get rid of it forever, and at in any given year, there are at literally hundreds of proposed laws trying to do just that. The Court may choose not to entirely get rid of Roe, because that decision has been the law of the land for so long (although this is now not a Court that is concerned with adhering to past case law), but they could allow enough restrictions that it becomes impossible for all but the rich and well-connected to get abortions. And once Roe falls, it isn’t far-fetched to think that laws restricting access to birth control might be next.

Affirmative action in college admission is likely done for as well. Kennedy cast the deciding vote in 2016’s Fisher v. University of Texas, which upheld the principle that universities could take race into account as a factor in the admissions process. Chief Justice John Roberts has made no secret of the fact that he wants affirmative action gone. Couple that with the fact that, under Attorney General Jeff Sessions, the Department of Justice is aggressively going after universities with affirmative action plans, arguing that they discriminate against white students, and an anti-affirmative action case seems inevitable.

Justice Kennedy’s replacement is likely to fetishize “law and order” and being “tough on crime” as much as Trump does. Kennedy was far from a consistent death penalty opponent, but he did on occasion vote with the liberal wing. He voted to overturn a Louisiana law that imposed the death penalty for rape. He also wrote an opinion passionately decrying solitary confinement as cruel and unusual, a position he consistently held. Any Trump nominee is sure to be someone who backs all the things this administration now backs: private prisons, detaining immigrant children, aggressive nationwide stop-and-frisk, and the death penalty for drug dealers.

Although Kennedy disappointed all of us with his decision in Masterpiece Cakeshop, prior to that he’d been a reliable vote for same-sex marriage rights. Many of Trump’s lower court picks have been hostile to LGBTQ rights, and there’s no reason to think his Supreme Court nominee would be any different. Indeed, Trump is in thrall to the Federalist Society and the Family Research Council, both of which deeply oppose LGBTQ rights of any sort.

As with Roe, there are always a number of anti-LGBTQ laws making their way through state legislatures. In 2016, Alabama tried to pass a law that would have allowed officiants to refuse to perform ceremonies for a same-sex couple. Arizona tried to prohibit insurance coverage for gender confirmation surgery. Georgia wants to allow adoption and foster placement agencies to refuse to work with LGBTQ individuals who wish to adopt or foster a child. Conservative states know that the way to get a case to the Supreme Court is to pass a virulently anti-LGBTQ law at the state level, have it challenged, get a conservative Supreme Court to take the case, and get a ruling that upholds that law. This is a stark reminder that getting same-sex marriage was great, but it barely scratched the surface of providing the protections LBGTQ people need.

Gun control? You can worry about that too. Adam Winkler, author of Gunfight and an expert on gun control and gun rights cases, makes a credible assertion that a conservative, gun-loving Trump nominee will likely consistently vote to take Second Amendment cases. With Kennedy on the bench, the Court generally shied away from taking those cases, perhaps because no one knew how Kennedy would vote and the conservative justices didn’t want to accidentally end up with a pro-gun control decision.

Justice Kennedy has gone back and forth on environmental issues. He was the crucial swing vote in Massachusetts v. EPA, which affirmed the right of the EPA to regulate carbon dioxide emissions. On the other hand, he voted with the conservatives to restrict the EPA from enforcing those same emissions on smaller businesses. Any Trump nominee is sure to scorn the EPA, given that the head of the EPA, Scott Pruitt, opposes most of the mission of the EPA already.

One of the things underpinning cases like those EPA decisions is something called the Chevron doctrine, named for the decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council. It’s a doctrine that requires federal courts—including the Supreme Court—to defer to a federal agency’s interpretation of a law when that law is unclear. The reason for this is that agencies are the real experts in understanding and implementing complex laws. Take, for example, carbon dioxide emissions. Congress passes laws that impose broad requirements, but it isn’t as if the members of Congress understand things like how to calculate parts per million measurements of pollutants or what goes into inspecting and licensing a coal plant. But agencies employ experts that know exactly how to do that.

Many conservatives—particularly Justice Neil Gorsuch—hate the Chevron doctrine. Why? Because the Chevron doctrine allows agencies to impose regulations on businesses, and that’s a thing that free-market conservatives generally hate. They don’t want the EPA telling businesses they can’t pollute. They don’t want the FCC telling companies they have to serve up all webpages equally, rather than charging more for certain content.

In an opinion when he was still at the Tenth Circuit Court of Appeals, Gorsuch wrote that Chevron deference allows “executive bureaucracies to swallow huge amounts of core judicial and legislative power[.]” In a post-Chevron world, the uninformed legislature and a conservative court will rule on things rather than ever deferring to the experts that actually understand the law. Late in this term, a Kennedy concurrence indicated that he had soured on Chevron as well. Chevron, if not dead yet, is definitely on life support, and its demise will lead to exactly the type of deregulation that Trump and his administration crave. There’s been a lot of talk about what to do now, and how people might fight back against an ultra-conservative Trump nominee to replace Kennedy. The sad truth is that there isn’t much hope. During the Gorsuch confirmation hearings, Mitch McConnell invoked the nuclear option, allowing Gorsuch to be confirmed with only 51 votes instead of the previously-required 60. There’s no reason to think he won’t do it again here. McConnell has also indicated he intends to ram through a nomination prior to the midterms, which means there’s no chance the Democrats would control that chamber and be able to block a nominee. In theory, the Democrats could peel off a GOP vote or two and be able to stop a Trump nominee from moving forward. However, the Republicans in the Senate have not shown much appetite to really oppose Trump, in large part because they’re getting what they want from him—tax cuts and the dismantling of entitlement programs. Barring a miracle, we’re going to see an extremely conservative new Supreme Court justice.

So what do we do now? Go local. Work on governor and state legislature races in the hopes that we can change the composition of state governments prior to the 2020 census. That can help the Census get properly funded. In turn, a fairly conducted Census helps ensure that Congressional districts are drawn fairly. Majorities in state legislatures give Democrats the power to draw those Congressional districts. Majorities in state legislatures give Democrats the power to push back against voter suppression laws. We need to change the composition of legislative bodies from the ground up and fight like hell and pray that all our good work isn’t undone by the Supreme Court.