The Supreme Salient: Decades Of Static Ideological Lines On The Court Could Vaporize With A Kennedy Replacement

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.

Abortion

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.

Gay rights

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.

33 thoughts on “The Supreme Salient: Decades Of Static Ideological Lines On The Court Could Vaporize With A Kennedy Replacement

  1. “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.”

    I have no problem with the nuclear option as the filibuster has largely been a tool for empathetic support over constitutional reasoning. As emotionally compelling as pushing grandma over the cliff or stripping the Little Sisters of the Poor of their rosaries might be, we still have the “Supreme” law of the land to guide our laws. We will never have a culture that will share equally the empathy for the various concerns of the day. And when we don’t (and we do quite often), we must all agree that reason must prevail over emotion. And we must agree that our laws should not be guided by empathy but rather the law. And our laws must apply equally to all and without the constant empathetic rationalization that results in injustices today for the injustices of yesterday. That’s not law, that’s lawfare.

  2. It would be agreeable if the entire edifice of post-1937 jurisprudence on constitutional questions just disappeared and stare decesis saved nothing but the Federal Reserve.

    • The Federal Reserve, Social Security, Medicare, Medicaid, and unemployment compensation. Just about everything else can go without causing undue social disruption.

    • Stare decesis is legalistic mumbo-jumbo for screwed it up then, gonna screw up again. If the “jurists” who screwed it up originally faced a firing squad instead of lifelong tenure, there might be more decisions based on law and less based on personal ideology and political correctness. Just sayin’…

  3. Getting rid of the filibuster is perfectly reasonable and desirable. It’s merely an avenue for obstructive veto groups to impose their will on everyone else.

  4. Thomas Sowell some years ago wrote a column recalling a dinner he’d had with a friend who was satisfactorily acquainted with Anthony Kennedy the man. The fellow’s assessment of Kennedy was that he was an other-directed sort who would retail what was the moral consensus in his social circle. Since professional-managerial types in our time are commonly supercilious and unserious, you get their feelz. (It’s also a reasonable wager you’ll find a pooftar in the woodpile among his shrit-tails or collateral relatives).

    • Per Sowell, the conversation took place in 1987, when Kennedy was nominated to the court. Sowell’s assessment retrospectively was that what you want for the Supreme Court is someone who is not a social climber. Kennedy, he offered, was not that guy, and the people who knew him personally could tell you that.

  5. This country needs a Constitutional court. Gorsuch is a step in right direction. We could use Judge Napolitano next. I would love to see Rand Paul as well

    • I think even Liberals would agree that Judge Nap or Rand Paul would be good additions to Supreme Court

      • Rand Paul is an ophalmologist, not a lawyer. He does not belong on the court. Judge Napolitano is a fairly rank-and-file state judge. The most recent examples of that sort on the court have been Sandra Day O’Connor and William J. Brennan. Not too sure about that. It’s also a reasonable inference that he has an undisclosed interest in a certain type of case. He might just rule fairly anyway, but there is that to consider.

        • Actually the problem in Washington is the overwhelming population of lawyers. Getting them out of Congress, the Court and keeping them out of the White House would go a LOOOONG way towards draining the swamp. All you need to make constitutional decisions is to read the Constitution, a concept seemingly eluding many of the congresscritters in the District of Criminals, while the “lawyers” study ways of wriggling around and out of it.

  6. When the people vote in a new President they sort of know that he has the power to appoint Supreme Court Justices. Trump did not get the majority vote but he got the majority of the electoral college votes. Those of you who have not been to the electoral college should not have voted for Trump. Nevertheless. Things like Gay Rights! are kind of like STATESRIGHTS! Abortion Rights are kind of like Gun Rights. Some things come and go. I hope we get some gun rights under the RepubliCon Supreme Court which will soon come to power. The Right To Arm Bears is first on the vagina. I’m sorry- agenda. Roe v. Wade will go away and Roe will have to give out her real name. The Military Industrial Complex (something Ike warned us about) will come into full power. We will be at war for the next hundred years. If the Korean midget nukes us then many will die. That will probably happen on the West Coast. Move if you wish to live.

    Trump came along kind of like the way Hitler did. We had the terror attack on the Twin Towers. Congress passed the Patriot Act. Civil rights were diminished under that Act and other things like executive orders. Hitler came into power after the German Parliament was burned– The Reichstag Fire Decree was issued right after. The Holocaust followed Hitler’s election.

    I do not predict a Holocaust in America. Maybe one elsewhere in the world. I do predict that the midget will send a nuke our way and we will nuke the midget in response. Who is the “midget”?
    That should be a topic on the blog here. The Midget.

  7. Just to throw gas on the fire with a ha ha ha I told you so…..I was expecting the part where Comey DID in fact delay and divert a prosecution and some of this is probably going to end up at SCOTUS level. Minujs the idiotic remarks made by Senator Stupid Schumer the former leader of …something.

    Comey did in fact steer the investigation away from closure by his false instances on bring something called ‘intent’ into the mix. Intent is a valid part except in one area. National Security. It’s no big secret but everyone jumped to provide Hillary cover on that point….without explanation.

    We have another situation coming up which is similar. Susan Rice and company. What the two have in common is the use of ‘probable cause’ as a requirement. Probable Cause is no longer a requirement in anything that can or might be tied to some form of terrorism. I refer you to the Patriot Act. as recently (Dec 21 2015 was extended and amended by adding ‘suspicion of supporting terrorism’ to suspicion of terrorism. Notice Terrorism is one of the few words not defined. Nor are citizens civil rights such as probable cause excluded from the ‘suspicion only’ rule.

    These cases will eventually arrive in Washington DC but not without my reminder I personally posted this suspension of civil rights in this very forum and referred all of you to the Turley Kusack discussion of 2012 predicting this very outcome.

    Why those two cases?

    One equally plausible reason for the Clinton Server is to provide a conduit for passing information with a
    built in excuse for doing so using terms like ‘intent’ which doesn’t apply – terrorism or no terrorism.

    Guess what? That other set of laws can be used against anyone and they have no civil rights – just as easily – and it could be… you…or you…or you.

    Which brings us to the hoo rah on the monitoring of conversations.

    Comey violated those laws. So did his then boss Loretta Lynch, and by participating so is Schumer. Now you know why the big massive effort to manufacture other excuses.

    To give you an example of ‘suspicion of’ I created that passing classified information conduit as a plausible reason for having that server. Would it stand the test of probable cause? No. Absolutely not. Would it stand the test for ‘suspicion of’ which requires no facts nor evidence. Absolutely yes.

    Who? Well who posts consistently without facts, sources, sites, or cites. Mighty suspicious looking to me.

    That’s how far, without legal definitions, we are from being …..disappeared?

  8. Here come the theocrats. Human rights, civil rights….no one gets those who doesn’t support the GOP. Corporations must be in an ecstatic frenzy.

    • There are only two theocracies on the planet. Islamics and Catholics. But as for looonie toonies those who harp on things that do not exist such as “Our Democracy” are the most peculiar. Even Malkim and Condoleeza Rice who I thought were much better educated push that fallacy. Good on them. They can share the remaining RINOs.

    • Or better. One thing for sure I’m seeing with a fast learning curve outsider is the status quo is getting drained first. If you notice he always seems to do things in a manner designed to cause the greatest amount of controversy and thus gets the greatest amount of discussion and participation leading the best ‘possible’ solutions in the fastes amount of time. Those who play politics instead of real life are fast shoved aside to nurse their wounds and take advanced courses in whining.

      I also noticed the blame is being placed heavily on the Joe Sixpacks they abandoned to begin with. Thus expressing their utter contempt for the people fo the country. The people of the country are fast learning to despize in return

      And all it takes to cost them support and votes is a little verbal gas on the fire. and a match.

      Classic example of those who will not learn are doomed to fail.

      The Republican Senators and Representatives have met their own future and many faced up to it. Even some of the Democrats.now turning IDC’s. The only ones that feel safe are those who aren’t up for elections and those who have ballot proof districts. Thus the Democrats will shrink to the likes of Waters, Harris, Warren Pelosi and Schumer. While their splinter groups attract new members. The RINOs except for those who are ballot proof didn’t take long to get trained. They know they were Target Priority Three only because Clinton was Number One and the Democrats Number Two.

      You may well see the end of the terms Republican and Democrat in the next decade.

    • I’m looking forward to Ginsburg and Kennedy both being gone. America may just have a chance to survive as a NON Europe country under Trump’s Supreme Court Nominees. Just hope that the Republicans who are no better than the Democrats in always looking to cover their rears, will do the right thing when the time comes. McCain and Graham are the two I think of most in connection with their Anti Trump behaviors.

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