Hours after the Supreme Court issued a major ruling that will cripple public-sector unions and damage the Democrats’ chances of eventually beating Donald Trump, liberals got another gut punch: Justice Anthony Kennedy, who has historically served as a swing vote on major cases, is retiring, giving Trump another chance to nominate a far-right justice who will potentially serve for decades.
It’s unclear who Trump will nominate, but it almost doesn’t matter. He’ll likely be working off a list of conservative-approved judges who will all be reliable votes against unions, against abortion rights, against the Affordable Care Act, and otherwise likely to vote in favor of whatever policy the right wing is pushing. Just to pick one issue at random, Trump’s pick will probably support efforts by red states to make it more difficult for poor people and minorities to vote, which will of course fuel more electoral Republican victories and may even create more chances for a Republican president to put more conservative justices on the court.
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What can Democrats do about all this? Basically nothing. Senate Majority Leader Mitch McConnell has already announced plans to hold a vote to confirm Kennedy’s replacement this fall, which is a smart move—if Democrats took back the Senate, they might decide to pay back the GOP for blocking Barack Obama’s nomination of Merrick Garland in 2016 and refuse to confirm any Trump selection, no matter how qualified. Minority Leader Chuck Schumer said on Wednesday that the Senate shouldn’t consider any Supreme Court pick before the midterms, mimicking the GOP line two years ago. But the Republicans have a narrow majority, and they’ve already eliminated Democrats’ ability to filibuster a Supreme Court nomination. Trump’s selection will likely be rubber stamped.
Liberals have been dreading Kennedy’s retirement for some time. In April, the New York Times editorial board begged the 81-year-old not to leave, not just because his replacement will be unlikely to occasionally side with the more liberal side of the court (as he famously did in the 2015 ruling legalizing same-sex marriage), but because he was in some ways the last vestige of an era when the country’s highest court was not defined by narrow partisanship. “The American people are desperate for someone who is not polarizing, and your continued service would be an encouraging sign to them that the court can still operate outside politics,” the Times editors wrote. “If you leave, the dam breaks.”
In the short term, a solidly conservative 5–4 majority will likely defend controversial executive orders that get challenged in court like Trump’s “travel ban,” which Kennedy supported, albeit with a veiled warning to the president about following the Constitution. The long-term future of the court is murkier. If Democrats take power in this year’s midterms and the 2020 elections and pass progressive legislation, that legislation will likely be challenged by lawsuits that will wind up before the Supreme Court. What happens if the five conservative justices decide that the Constitution prohibits, for instance, a broad expansion of Medicaid or a jobs guarantee? Already liberals are speculating on the need to take drastic action in response to that scenario, including “packing” the court by adding justices past the traditional nine. (The Constitution, in one of its many quirks, does not specify the size of the court, which changed repeatedly in the 1800s at the whim of partisans in Congress.)
That is in many ways a dark future to imagine. But it’s the sort of future Democrats should probably start considering. Liberal icon Ruth Bader Ginsburg is 85. Stephen Breyer is 79. Trump may get a third Supreme Court pick before his term is out, and that conservative majority will begin to look unbreakable by ordinary means.
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