Conservatives See a Lesson for the Left in Kennedy

'Those who live by the courts die by the courts,' writes the Weekly Standard
By John Johnson,  Newser Staff
Posted Jun 28, 2018 10:05 AM CDT
Here's One Way to Ease 'Insane' Supreme Court Process
Supreme Court Justice Anthony M. Kennedy.   (AP Photo/J. Scott Applewhite, File)

The fallout from Anthony Kennedy's bombshell decision to retire from the Supreme Court continues to resonate, with President Trump saying he's "honored" that Kennedy has given him an opportunity to pick a successor. Of course, getting him confirmed is another issue, and the Hill digs into the political logistics in the Senate. Republicans have the numbers, but two wild cards are Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, both of whom support abortion rights and will likely have a big say in who comes next.

  • A remedy: At Vox, Ezra Klein writes that both parties are guilty of turning the nomination process into an "insane" one, given the stakes. At this point, if one party held the White House and the other the Senate, it's unlikely any nominee would be confirmed. His solution? Reduce the stakes by limiting justices to 10-year terms.
  • A big percentage: The Washington Post picks out five times Kennedy cast the deciding vote on big issues, on everything from backing abortion rights to supporting gay rights to curtailing the death penalty. The story notes that of the 276 majority opinions written by Kennedy, 92 came in 5-4 decisions.

  • Five issues: Much of the focus is on the fate of legal abortion, but Politico runs down four other key issues the new justice could help shape: affirmative action, voting rights, gay rights, and the death penalty, particularly in its application to minors and the intellectually disabled.
  • Not so centrist? Dahlia Lithwick at Slate suggests Kennedy's image as a "moderate centrist" was overblown, as evidenced in his joining so many big 5-4 decisions this session. "We will debate in the coming months whether Kennedy tacked back to the right this year or if he was never anything but a staunch conservative who enjoyed occasional casual day trips to the left side of the bench," writes Lithwick. "But one thing is beyond doubt: If there was anything like a 'moderate center' inside the only branch of government not broken by polarization, it's gone."
  • From the right: The Weekly Standard takes notes of the liberal anguish and isn't too sympathetic. "This is the world the American left has created with its judicial activism—a world in which many of their most lasting achievements were brought about not by congressional votes but by court decisions." This works only if you win elections, and Democrats are struggling to do that as they shift ever left, write the editors. "Those who live by the courts die by the courts."

  • Next 'decider': W. James Antle III floats the idea at the Week that Chief Justice John Roberts will take over Kennedy's role as the swing-vote "decider" on the court. Yes, Roberts is more conservative than Kennedy, but he's also an "institutionalist" who sometimes disappoints the right. That could be especially true when it comes to overturning Roe v. Wade.
  • Ballot box: A New York Times editorial says Americans who are worried must do one thing: Vote. "In the absence of a Supreme Court majority that will reliably protect human dignity, universal equality, and women's right to control their own bodies, it is up to Americans who cherish these values to elect politicians at every level of government who share them."
  • Assessment: Law professor Jeffrey Rosen at the Atlantic recalls some of his own criticism of Kennedy over the years—including one piece about "judicial arrogance"—and now thinks he was too harsh. "Kennedy was an idealist, a patriot, and a lover of the Constitution, who believed fervently that the greatest document of freedom ever written provides a framework for citizens of different perspectives to agree and disagree with each other in civil terms."
(More Anthony Kennedy stories.)

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