Conservatives celebrate and liberals wail about Justice Anthony Kennedy’s upcoming Supreme Court retirement. Partisan publications feature over-the-top predictions about the court’s future. Hysterical leftists believe reproductive rights and Rowe v. Wade are under assault. They assert that a new Supreme Court will reduce all childbearing-age women to breeders and scullery maids. Right-wingers say that a court decision declaring Rowe unconstitutional is inevitable.
Not so fast. Both liberals and conservatives overstate the significance of Justice Kennedy’s departure. While the court’s rulings last week suggest a slight shift right, this is simply a routine correction after a decade of liberal dominance.
A Scalia-type nominee is unlikely. Furthermore, even if President Trump nominates someone like Scalia, expect Roberts–or even Gorsuch–to tag-team as the swing vote.
Debates over strict versus loose constructionism aside, the latter ideology usually prevails. Despite conservatives’ wishful thinking, the idea that the Constitution is a “living, breathing document” dominates the court’s philosophy.
Historically, the Supreme Court’s decisons reflect the times. That’s why the post-Reconstruction-era Plessy v. Ferguson ruling affirmed “separate but equal” in 1896, a year after Booker T. Washington’s “Atlanta Compromise” speech. Similarly, the Brown v. Board of Education decision struck down Plessy in 1954, nine years following World War II. After U.S. soldiers liberated Nazi concentration camps, the country could no longer deny its own racism. Roe v. Wade emerged during the height of the women’s movement. The Obergefell same-sex marriage decision and the ruling upholding the Affordable Care Act occurred during the Obama presidency, the most liberal administration since LBJ.
Justices pay attention to the national mindset and opinion polls far more than constitutional conservatives wish to admit. Panicked liberals should recall that conservative Justice Roberts saved Obamacare, contorting himself in knots to justify the individual mandate. Although Roberts might have ruled differently on the Affordable Care Act had President Obama not been so popular (and demagogic), the chief justice did not wish to be labeled the “bad guy” who thwarted the utopian notion that universal coverage might be achievable. Furthermore, Justice Kennedy, a Reagan appointee, turned out to be liberals’ BFF as the reliable swing vote. Many contemporary conservatives consider Kennedy’s appointment President Reagan’s biggest mistake, a capitulation after Democrats derailed the Bork and (Douglas) Ginsburg nominations.
The liberal justices rarely break ranks; they usually vote their ideology. With Kennedy’s help, they were successful in moving the court left. Unfortunately, there’s no real check on liberal excesses except when the court’s balance of power favors conservatives. The consolation for liberals is the court’s own philosophical mindset: At least one conservative will defer regularly to progressive idealism and demands for “social justice.”
Liberals should take heart. For all their nattering about “scary” conservatives, the mainstream right tends to “conserve” the status quo, especially with extremely hot-button, divisive issues. Rowe v. Wade, affirmed by Planned Parenthood v. Casey, is unlikely to be overturned after the Supreme Court established abortion rights as a legal precedent.
I’ve written before about conservatives’ distaste for activism; we generally dislike street protests. They’re just not really our thing. We prefer slow, gradual change. Our grassroots support for a presidential candidate like Trump was out of character for us–a Hail Mary pass because we knew Republican establishment candidates were weak and would lose…bigly. We understood that we had to take control of a party that had become Democrat-lite and shake it up. We also needed a non-boring candidate who would mix it up with Democrats and generate some enthusiasm for a change.
That’s why I don’t expect any dramatic right turn from the Supremes post-Kennedy. Progressives should cool the jets and refrain from opposing all potential nominees simply because they hate President Trump. Any mild-mannered, mainstream conservative will ensure progressives regular 5-4 victories. They should avoid setting their hair on fire for once and think strategically.
Likewise, conservatives should not entertain unrealistic expectations. Rowe v. Wade is not going away unless public opinion shifts overwhelmingly in a different direction. Conservative justices on the court won’t have the stomach for the social unrest that would result. Even conservative/libertarian-leaning women like me would consider overturning Rowe a bridge too far.
However, litigation challenging Planned Parenthood’s funding might be a reasonable alternative. Despite the argument that the agency offers reproductive health services in addition to abortion procedures, Planned Parenthood is no less controversial than the National Rifle Association, which also offers public services like gun safety classes and educational programs. The NRA is powerful and self-funded. Similarly, with so much wealthy liberal support, Planned Parenthood could still be an influential interest group without taxpayer subsidies. In addition, the right could litigate cases to de-fund National Partisan Public Radio and demand it pay its own way, just as conservative talk radio does.
Of course these sorts of challenges will lead progressives to cry foul on school vouchers and charter schools. Conservatives will respond with more lawsuits challenging progressive indoctrination, groupthink, and discrimination in higher education. And on it will go.
Kennedy’s resignation will change little. The new justice won’t shift the court in any dramatic fashion. Partisans on both sides will still find plenty to complain about.
