SCOTUS, Kennedy and Beyond
Anyone who follows American politics knows how important it is to get the right sort of president in, because – among other things – he is the one who nominates new Supreme Court of the United States’ justices when one retires. And given that a justice can hang around for decades – well beyond the president who nominated him – getting a good choice is crucial.
President Trump has already brought in one conservative judge during his brief time in office: Neil Gorsuch. And now he has the chance to bring in another, since Justice Anthony Kennedy has just announced his retirement, effective July 31 of this year.
While a US president can only serve two 4-year terms at the most, a Supreme Court justice can stay there till he dies. So if a good judge (read: conservative constitutionalist) gets in, that will have longstanding impact – hopefully for the good – on America. If a bad one (leftist, judicial activist-type) gets in, America can suffer for many years, many decades, and beyond.
So the battle for the presidency is always more than just who sits in the White House. It is also about who sits on the nine seats of the Supreme Court. Past Democrat presidents like Clinton and Obama have appointed leftist judges, some of whom are still there, such as Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan.
Getting another conservative who respects the US Constitution as opposed to another judicial activist who views the Constitution as a malleable, “living, breathing document” will make all the difference in the world. For more on this issue of judicial activism, see here: https://billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/
But it is early days yet. Two things have to happen before conservatives can get excited. One, Trump has to find and promote someone who is indeed a solid constitutionalist and conservative; and two, he must get through a vote in the Senate, where most Democrats will likely vote ‘no’. A simple majority vote will get him in.
So time will tell how all this pans out. But already plenty of folks are excited (or dismayed, depending on their political point of view) about the replacement. Leftists fear one more conservative could see some of their most valued ‘achievements,’ such as abortion on demand, rolled back.
Conservatives look for a return to some form of sanity at SCOTUS after so many years of madness, including the decision to legalise homosexual marriage. So this is a momentous decision indeed, and the next few months will see some real hardball politics in action
Let me finish by citing just four American conservatives and their views on all this. First, Penny Nance, head of Concerned Women for America, said this:
This is the moment conservative women have been waiting for — the chance to return justice and constitutional limits to the nation’s highest court. This is the reason why they voted overwhelmingly for Donald J. Trump over Hillary Clinton. We want a Supreme Court that rejects the subjective ‘living, breathing’ constitutional philosophy which judicial activist have used to force liberal political policies on the country under the guise of law. It is time for a Supreme Court that returns power to ‘We the People.’
Second, Robert A. J. Gagnon, who has done so much to stand up against the radical homosexual agenda, said this on the social media:
Hooray! Although Kennedy voted correctly in the recent crisis-pregnancy center and travel ban cases and half-way correctly in the Masterpiece Cake decision, he was the chief architect of the Obergefell “gay marriage” decision (and before that the Romer “animus” and Lawrence “sodomy” cases), one of the worst decisions in Supreme Court history, right up there with Dred Scott, Plessy, and Roe. Hopefully Trump will pick someone more solidly an originalist and conservative who will not so easily bypass the rigorous process for amending the Constitution under the guise of judicial interpretation. A Republican form of government cannot long survive oligarchic rule by five (or more) unelected jurists who can’t see the difference between the text of the Constitution and their own left-wing ideology imputed to that “living” text. A solid pick by Trump would end for the time being the constant concern for Kennedy as a “swing vote” and instead provide a solid 5-4 majority for originalists or conservatives. Highly important.
Third, long-standing pro-lifer Randall Terry minced no words. In typical style he said this in his title: “A Wretched Jurist, and a Treacherous Catholic with Blood on His Hands – May President Trump Learn from President Reagan’s Mistake.”
When President Reagan appointed Anthony Kennedy to the Supreme Court, our hearts were high with hope that the scourge of Roe vs. Wade would soon be overturned. Instead, the blood of innocent babies continued to be shed after Kennedy betrayed God and His innocent children by affirming Roe in Planned Parenthood vs.Casey.
Because of Kennedy’s treachery to God, the babies, and his oath before God to uphold the U.S. constitution, tens of millions of babies have been discarded in sewers and landfills, where their blood cries to God for vengeance, and cries as a witness against Justice Kennedy, and all his comrades in judicial fiats.
Kennedy then confirmed his audacious belligerence against God and man by overturning the laws of nearly all 50 states regarding the definition of marriage. His Obergefell opinion was – as Justice Scalia declared – a “judicial Putsch;” a literal overthrow of the system of laws and traditions that define America as a nation of laws. With Kennedy in the lead, Americans became the subjects of tyrants.
Finally, a lengthy piece by David French highlights the importance of all this:
The consequences of Kennedy’s retirement — both legal and political — are immense. First, let’s look at the legal angle. While Kennedy’s judicial liberalism was often exaggerated (for example, he wrote or joined a number of solid opinions that protected and reaffirmed core constitutional liberties, including liberties protected by the First and Second Amendments), it’s a simple fact that as a “moderate” swing justice he served as the primary judicial guardian of abortion rights and was more responsible than any other justice for the relentless legal march of the sexual revolution.
He goes on to say this:
If Trump holds firm to his promise to choose his next justice from the list he put forward last November, the Supreme Court will be dominated by a core of five largely originalist justices, and the next two oldest judges are both progressive. Justice Ginsburg is 85, and Justice Breyer turns 80 in August. It may be quite some time before a president will have the opportunity to so clearly and decisively impact the judicial philosophy of the Court. In the meantime, that means that originalists may well have a golden opportunity to reset our jurisprudence to align more with the words and meaning of the Constitution. It’s too much (perhaps) to argue that Roe could fall, but one can easily imagine the Court granting greater autonomy to state governments to regulate abortion providers. One can also imagine more robust protections for free speech and religious liberty, greater protection for the right to keep and bear arms, and further inroads against the unconstitutional administrative state.
And he offers a much-needed word of warning here:
Finally, a word of caution to gleeful conservatives. We’ve been here before. We’ve had opportunities to remake the Court. President Reagan and the first President Bush together appointed a majority of the Supreme Court. Yet Roe endured, and the Court even moved left on key issues. Presidents don’t nominate robots. They nominate people who possess their own will. It will be imperative that conservatives closely evaluate Trump’s potential picks, but that person — no matter his or her record — will not only possess immense power, they’ll face immense pressure. May he or she possess not just the right philosophy, but also the necessary character to do all the job requires. So much for a quiet summer. The next weeks and months may well define the Supreme Court for a generation — and help decide who controls Congress. Buckle up. It’s going to be a wild ride.
Exactly right. As always, we need to work and pray for a really good outcome here.
6 Replies to “SCOTUS, Kennedy and Beyond”
Good article Bill, the Democrats know only too well that a SCOTUS loaded up with conservative judges will be no friend to their pet causes and wish lists. They will vigorously oppose any Trump nomination. As you’ve quite rightly stated; “Buckle up, it’s going to be a wild ride”. Regards, Kel.
Excellent piece. Thanks.
Great article. I was wondering about Kennedy. Now I know. Thanks Bill.
I would have thought it obvious that for democracy to work properly then, when it is obvious what was intended by the law and the constitution, that is how it should be read. The left wing idea of redefining everything is just a way of getting around democracy and truth and law. This is why I believe the redefinition of marriage in Australia is illegal because it redefined the concept of marriage and did not use the term as intended. When the Australian constitution was written it was obvious what marriage meant and what the government was given authority over but if governments can change the meaning of the words the Australian Constitution is written in then the whole concept of requiring legal referenda is completely undermined. While people claim the Australian High Court gave authority to the government to redefine marriage this was never properly contested and considered correctly. If it was I believe the inevitable conclusion would be that the redefinition did not follow constitutional directives. The government simply is not permitted to change what the Constitution says by redefining the words the Constitution is written in.
Expect Trump and his team to lead with someone that appears strong on abortion then switch to someone that seems weaker but has quietly already moved to the same position.
Trump needs to break the debate somehow.
Hopefully the Republicans will keep control of the Senate. The US senate is made up into three classes. Each class has a 6 year term and one class is up for re-election every 2 years. So the class elected now will be there till the end of Trump’s Presidency (or beyond if he fails to secure a second term). Class I has nearly half the current Democratic Party Senate Seats and that’s the class up for election this time. The results of this midterm election may well make the difference as to who controls the Senate if not immediately afterwards 2 years or 4 years down the line.
If the Republicans can keep the Senate they’ve got a strong possibility of having the opportunity to replace SCOTUS judges nominated by Democratic Presidents which would increase the chances of bad SCOTUS decisions from the past being reversed or chipped away at. Roberts is tipped to be the new “swing” vote (the justice most likely to be in the majority in 5-4 decisions), the first Chief Justice to have that for over 80 years.
Replacing any of the judges nominated by Clinton/Obama would likely mean the Republican nominated Chief Justice would be to the “left” of the “swing” vote of the Court! If he voted against something then the next most senior justice (longest serving in the majority) would get to decide who writes the Court’s reasons for their decision that sets precedent for future cases. After Kennedy’s retirement that would be Clarence Thomas seen as the most conservative justice currently sitting on the court!
There’s also the lower courts to consider. The Supreme Court only takes up a small percentage of cases each year. If the Court of Appeals become more conservative that will make a difference as well. If the Republicans can hold the Senate & the Presidency there’s a possibility that the Ninth Circuit which has had a majority of justices appointed by the Democrats for decades (since that court was expanded during a Democratic Presidency) could even get a conservative majority.