Below is my column in the Hill Newspaper on the implications of a rumored retirement by Justice Anthony Kennedy. If nothing else, it allowed me to discuss the anniversary of the Ypres Salient explosion in World War I — the mining of the German line with massive bombs. While we often discuss how a nominee could change the Court on issues like Roe v. Wade, the replacement of either Kennedy or Ruth Bader Ginsburg would potentially collapse the long static lines on the Court. Like trench warfare, the 4-4 split on the Court has moved little in areas like abortion. It could now evaporate in the flash of a confirmation (assuming that Chief Justice John Roberts does not step into the role of swing vote on the Court).
Here is the column:
In a couple weeks, there will be an anniversary that will likely go without mention beyond those of us who are ardent military history nuts. It is the 100th anniversary of the Ypres Salient explosion in World War I. While many have made a great deal over the dropping of the GBU-43/B Massive Ordnance Air Blast (MOAB) in Afghanistan, the MOAB (with 18,000 pounds of TNT) was barely a candle compared to the mines placed under the German trenches by Scottish miners over months of secret digging in Belgium.
On June 7, 1917, they hit the detonator and more than two dozen 50,000-pound bombs went off across the trench line — killing 6,000 German troops, collapsing the German lines, and leaving thousands of disoriented and wounded Germans wandering the battlefield. It took months of careful planning and, while the Germans sought to detect tunneling, the explosion literally vaporized their line of defense in a flash. They lost their salient, a fortification that juts out to protect your line. Lose the salient, lose the line.
The anniversary came to mind this week with the increasing speculation that Justice Anthony Kennedy would retire as early as June. Kennedy is the ultimate judicial salient and, with his retirement, the long static front of the Court could suddenly disappear. For decades, the Court has been evenly split along entrenched lines. For liberals, Kennedy was their salient on great social issues like abortion, same sex marriage, and free speech. At least on those issues, the lines were static and safe.
Yet, for decades, both sides have worked to break the hold of the other with the removal of a key justice. That moment may now be at hand. It is said that the Ypres Salient explosion was so huge that it was felt at 10 Downing Street in London and registered as an earthquake in Switzerland. The Trump administration may soon set off an explosion that would have equal seismic impact on the law by replacing Kennedy with a reliable hard-right conservative.
Ironically, it was the Democrats who made this moment not just possible, but probable. In one of the most politically moronic moves in a century, the Democrats under President Obama eliminated much of the filibuster rule for appointments — a move with comparatively little benefit in securing a few lower level positions while laying the groundwork for the “nuclear option” exercised by the GOP recently in removing the rest of the rule for Supreme Court nominations.
The result was much more serious than the pushing through the confirmation of Neil Gorsuch. There is no longer any filibuster threat for the replacement of Kennedy (or other elderly justices like Ruth Bader Ginsburg). Had the Democrats remained faithful with Senate tradition, there is a fair chance that some Republicans would have balked at the nuclear option (as they had previously) in forcing through Gorsuch.
The greatest problem for liberals with this self-inflicted wound is not the change in the numerical threshold but the political reality for confirmation. The filibuster rule gave political cover for Republican senators in justifying their opposition for nominees who were too far right. They could claim that they personally wanted such a radical change but that the filibuster rule required them to compromise. Now that cover is gone.
They can easily appoint a reliable conservative and would have to be open about their personal preference for a moderate in opposing a Trump nominee. The same is true for Trump. He pledged a hard-right conservative and there is now no serious barrier (or excuse) preventing him from fulfilling that pledge.
Gorsuch was a conservative replacing a conservative. It would barely register on the judicial Richter scale. Replacing Kennedy would be a Mag 7. Just consider a couple of the areas currently dangling on a single vote — Kennedy’s vote.
Kennedy has often played the role of the reluctant but reliable vote for the bare pro-choice majority. He reportedly switched his vote in 1992 when he was ready to overrule Roe v. Wade in the Planned Parenthood v. Casey decision. He would instead join in the plurality decision upholding the essence of Roe while adopting a new “undue burden” test.
He has largely stayed faithful to that line in striking down laws that have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” While he upheld the ban on late term abortions in Gonzales v. Carhart in 2007, he voted to strike down Nebraska’s ban on partial-birth abortions in Stenberg v. Carhart in 2000. More recently, he voted to strike down the safety standards imposed on abortion clinics in last year’s Whole Women’s Health v. Hellerstedt.
Although his position on abortion has been described as everything from nuanced to incomprehensible, it has largely favored the original right under Roe. That is the very measure that conservatives have long used for whether a nominee is truly conservative and, without the filibuster rule, conservative voters will expect senators to deliver. Of course, that could leave Chief Justice John Roberts as a potential swing vote as he was over health care. However, the Kennedy salient would be gone.
If there is one area where Kennedy virtually embodies a line of Supreme Court precedent, it is over gay rights. It is clear that Kennedy viewed his ruling in favor of gay rights as one of his greatest legacies. It could also be the first thing that falls to his successor. In the 1996 case Romer v. Evans, Kennedy put the protection of the homosexual minority on the same plane as racial minorities in the Court’s striking down a Colorado constitutional amendment barring antidiscrimination laws from protecting sexual orientation.
Then in 2003, he handed down his landmark decision in Lawrence v. Texas, striking down a Texas anti-sodomy law and overruling Bowers v. Hardwick. In 2012, he ruled in United States v. Windsor to strike down the part of the Defense of Marriage Act denying federal benefits to lawfully married same-sex couples. He then delivered the culmination of his jurisprudence in Obergefell v. Hodges, which recognized a constitutional right to same-sex marriage. Obergefell was widely celebrated at the time and many could ignore that the vote was 5-4. After all, Kennedy was on the Court and President Obama was in the White House. Now, Obama is gone and Kennedy could be leaving. So could Obergefell.
Kennedy has played a similarly key role in an array of free speech, affirmative action, and federalism cases. Many of these cases were not 5-4 decisions or he sided with conservatives. Roberts could cite the concept of stare decisis (in respecting precedent) in trying to limit the overturning of past cases. However, Kennedy leaving the court will produce a massive gravitational shift. His moderating impact was felt on the denial of review in many cases. For example, the Court once seemed poised to strike down core federal statutes under the Takings Clause, particularly environmental statutes. That “Takings Revolution” could restart with a justice with more of an appetite for revolution.
There is an irony to all of these potential changes. Just as the Democratic senators helped create this moment, the Republican senators could face their own reckoning. The danger is that the majority of voters might not like the territory acquired in the wake of a conservative breakout on the court. Notably, some of those 50,000-pound mines in Belgium did not go off and exploded decades later. One exploded suddenly in 1955 when lightning struck. That is the problem with laying mines in war or politics, they have a habit of going off at the least opportune times.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.