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With departure of swing vote, a pivotal moment for the Supreme Court

Why We Wrote This

There is a growing perception among voters that Supreme Court decisions are increasingly about setting policy, as opposed to interpreting the law. Will the replacement for Justice Anthony Kennedy hasten that perception?

Manuel Balce Ceneta/AP/File
US Supreme Court associate justice Anthony Kennedy testifies before a House Committee on Appropriations Subcommittee on Financial Services hearing on Capitol Hill in Washington March 23, 2015.

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Anthony Kennedy was perhaps the least predictable of US Supreme Court justices since President Ronald Reagan nominated him for the high court 30 years ago. “[I]t’s not easy to stuff him in any specific ideological box, whether that’s liberal, conservative, or libertarian, though he had tendencies on certain issues that could be put in one camp or another,” says Ilya Somin, a law professor and former co-editor of the Supreme Court Economic Review. But “predictable” is what President Trump promised to provide conservatives with his nominee. He has vowed to choose potential justices only from a list compiled by White House Counsel Don McGahn, with input from the Federalist Society. The Trump list contains generally young, right-leaning jurists who almost certainly would point the court in a more conservative direction. Any might provide a crucial fifth vote to curtail or overturn Roe v. Wade, the abortion rights case long under attack by social conservatives. Voter approval of the Supreme Court has been slumping for years. What happens if the justices, in the public mind, morph into pure politicians, Democrats or Republicans who happen to be wearing robes? “My concern is that is where we are,” says Charles Gardner Geyh, author of “Courting Peril.” “The court is at risk of being perceived as naked political actors.”

The retirement of Justice Anthony Kennedy is a seismic event in American law and government, a shakeup that could orient the US Supreme Court in a different ideological direction and topple long-settled legal precedents – while raising the noise of partisanship in Senate judicial confirmations to unprecedented heights.

Meanwhile, for President Trump, Justice Kennedy’s departure represents an opportunity. With this, his second Supreme Court appointment, Mr. Trump can leave a legacy that will affect America long after he leaves the Oval Office. It would help him fulfill the promise he made to conservatives prior to the 2016 election: Support me and I’ll appoint reliable right-leaning jurists to the federal bench.

But will any (or all) of this affect how the public views the court and its purpose? Voter approval of the Supreme Court has been slumping for years, in step with the decline in trust of virtually all United States institutions. What happens if the members of the court, in the public mind, morph into pure politicians, predictable Democrats or Republicans who happen to be wearing robes?

“My concern is that is where we are. The court is at risk of being perceived as naked political actors,” says Charles Gardner Geyh, a professor at Indiana University’s Maurer School of Law and author of “Courting Peril: The Political Transformation of the American Judiciary.”

Anthony Kennedy, for his part, was perhaps the least predictable of US justices since President Ronald Reagan nominated him for the high court 30 years ago.

“Least predictable,” in this context, is not the same thing as jaw-dropping surprising. Kennedy was a reliable conservative vote on many issues. He wrote the opinion on Citizens United, the 2010 case that allowed corporations the right to make unlimited campaign contributions. He generally supported gun rights. In 2000, he voted in the majority in Bush v. Gore, the voting case that made George W. Bush president.

But legal experts said Kennedy often gave them the feeling that he was genuinely concerned whether he considered both sides of a case.

He sided with more liberal justices to swing the majority in key abortion rights cases, and cases dealing with the legal rights of gay, lesbian, bisexual, and transgender people. In Obergefell v. Hodges, he wrote the majority opinion that effectively legalized same-sex marriage in the US. That may go down in history as his most-remembered Supreme Court moment.

“The bottom line is I think it’s not easy to stuff him in any specific ideological box, whether that’s liberal, conservative, or libertarian, though he had tendencies on certain issues that could be put in one camp or another,” says Ilya Somin, a law professor at George Mason University and former co-editor of the Supreme Court Economic Review.

But “predictable” is what Mr. Trump promised to provide with his nominee, or nominees, for the Supreme Court. He has vowed to choose potential justices only from a list compiled by his White House Counsel Don McGahn, with input from the Federalist Society and other conservative legal organizations. (President Hillary Clinton would presumably have been focused on predictability in a nominee from a Democratic perspective, if she were in Trump’s place.)

The Trump list contains generally young, right-leaning jurists who almost certainly would point the court in a more conservative direction. Any might provide a crucial fifth vote to curtail or overturn Roe v. Wade, the abortion rights case long under attack by social conservatives.

Roe v. Wade was decided in 1973 and has the status of settled law. Chief Justice John Roberts has appeared reluctant to overturn precedents – indeed, the stare decisis doctrine of following precedents holds that such action should occur only under unusual circumstances.

But they do happen. On Thursday, by a 5-to-4 vote, the Supreme Court overturned a 1977 precedent under which public sector unions could compel workers to pay “agency fees” for representing them in collective bargaining.

Critics of the public sector union decision worry that it presages more to come.

“If the court is willing to overturn a decades-long precedent that’s so well-rooted in our economy and public sector employment, I think that there will be, with Kennedy’s departure, quite conceivably a five-justice majority to revisit decades-old cases that are similarly well-rooted in our jurisprudence and in our society,” says Steven Schwinn, an associate professor at the John Marshall Law School.

One problem with such whipsawing might be a growing perception on the part of voters that Supreme Court decisions are increasingly about setting policy, as opposed to interpreting the law. In other words, judges picked by Republican and Democratic presidents are in effect extensions of the party caucus.

They’re making decisions that reflect political more than legal priorities.

According to polls, partisan perceptions of the court have widened. Overall approval has dropped steadily in recent years, from about 62 percent positive job approval rating in 2000, to 49 percent last fall, according to the latest Gallup figures.

The confirmation of Justice Neil Gorsuch, President Trump’s first Supreme Court pick, had a dramatic effect on voters’ court views. Republican approval of the court soared from 26 percent to 62 percent, while Democratic approval dropped from 67 percent to 40.

Many Democrats charged that the seat was unfairly taken from Merrick Garland, President Barack Obama’s nominee, who was not even given a hearing by Senate majority leader Mitch McConnell in 2016 after Justice Antonin Scalia died.

But Senator McConnell’s power play was not entirely unprecedented. In reality the Supreme Court selection process has been political from the beginning, says Professor Geyh of the University of Indiana. Between 1844 and 1866 the Senate simply ignored three court nominees, as it did Judge Garland, the chief judge for the D.C. Circuit Court of Appeals, prior to the 2016 election.

A second wave of politicization, concerned with a judge’s perceived ideology, built in the last decades of the 20th century, according to Geyh. This peaked perhaps with the nomination of Robert Bork in 1987. A Democratic-controlled Senate rejected Bork. This cleared the way for the eventual nomination of  Kennedy.

SOURCE: Andrew D. Martin and Kevin M. Quinn. 2002. "Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953-1999," based on the 2017 Release 01 release of the Supreme Court Database and the SCDB Legacy 03 version of the Legacy Supreme Court Database
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Jacob Turcotte/Staff

Ideology remains front and center in Supreme Court picks. But what’s peaking now is what Geyh labels a third wave of polarization, focused on the use of procedural devices to kill judicial nominations. Former Democratic Senate majority leader Harry Reid eliminated filibusters for lower court nominees, for instance, in 2013. McConnell simply refused to consider Garland in an election year. The next year, he abolished the filibuster for Supreme Court nominees to clear the way for Justice Gorsuch to take the Scalia seat.

Such political war makes the prize seem more and more partisan to voters. In recent years the justices themselves have remained collegial – the liberal Justice Ruth Bader Ginsburg and the late Justice Scalia, a rock-ribbed conservative, were great friends. But even that may be eroding as partisan pressures increase.

“What we are desperately in need of is finding common ground as a people,” says Geyh. “Right now things are just so polarized.”

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