Anthony Kennedy

The Right Wing Supreme Court Seems Ready To Declare War On Abortion, Gay Rights, Gun Rights, Immigration, Separation Of Church And State, And Presidential Power

The new session of the Supreme Court has begun, and the full effect of Donald Trump appointees Neil Gorsuch and Brett Kavanaugh will now, likely, be felt.

While it is true that Gorsuch and Kavanaugh are not “twins”, to expect any major surprises in constitutional law in this 2019-2020 term are highly unlikely, as right wing law looks in the ascendancy.

What the Court decides ends up as the law of the land, and for progressives, it does not bode well on the issues of abortion, gay rights, gun rights, immigration, separation of church and state, and the growth of Presidential power.

The fulcrum of the Court, Anthony Kennedy, is now retired for a year, and the only hope to avoid extreme right wing judgments is if Chief Justice John Roberts, who has been a surprise a few times in his views on the Court in recent years, becomes the new “swing” vote on the Court this term.

Roberts might also preside over an impeachment trial of President Donald Trump, who he, clearly, has been critical of in a number of ways, and the Court could limit Trump’s Abuse of Power, beyond Roberts presiding over an impeachment prosecution.

Since Roberts is worried about the image of “his” Court, some surprises may be in the offing, and of course, progressives will be watching the health and stability of Ruth Bader Ginsburg, now 86, having survived a third and fourth cancer, and wondering if she will be able to continue on the Court into the next Presidential term in 2021.

The Long Term Crisis Of Supreme Court Legitimacy Could Tear This Nation Apart Over Next Few Decades

The US Supreme Court is entering a period which could tear this nation apart over the next few decades.

Here we are in the 21st century, and yet, the Supreme Court could be taking us back to the late 19th century Gilded Age in its constitutional decisions. Now there is a solid five member conservative majority, with the confirmation and swearing in of Brett Kavanaugh, the most contentious nominee with the closest vote in the Senate since Stanley Matthews’ appointment by President James A. Garfield in 1881.

Matthews served nearly eight years on the Supreme Court, having been nominated by President Rutherford B. Hayes, but seen at the time as too much of a “crony” of the President, so his nomination was withdrawn, but resubmitted by President James A. Garfield in 1881, and confirmed by the closest margin in history, 24-23, but with Kavanaugh the second lowest ever vote 50-48. This was the only Supreme Court appointment of Garfield, who had only served four months, when he was shot and mortally wounded by an assassin, and died in September 1881.

The concern about fairness on the part of Brett Kavanaugh however was not the same as Stanley Matthews, who was the majority opinion author in a case involving discrimination against Chinese laundries and their owners in San Francisco, with the case being Yick Wo V. Hopkins, enforcing the Equal Protection Clause of the 14th Amendment. This was a step forward at a difficult time, in the year 1886, although the government had passed into law the Chinese Exclusion Act of 1882.

We could only hope for the kind of open mindedness on the part of Brett Kavanaugh, as occurred with Stanley Matthews’ authorship of this case, which gives him stature in Supreme Court history.

We have had Republican appointments in the past, who turned out to be surprises, including:

Earl Warren and William Brennan, appointed by Dwight D. Eisenhower

Harry Blackmun, appointed by Richard Nixon

John Paul Stevens, appointed by Gerald Ford

Sandra Day O’Connor and Anthony Kennedy, appointed by Ronald Reagan

David Souter, appointed by George H. W. Bush

It would be a miracle at this point if Brett Kavanaugh were to travel the same road.

In a nation becoming more minority over the next decades, and with young people and women and college educated people veering to the left, while the Supreme Court veers dramatically to the Far Right, the question is whether civil disorder is not in the making, creating a crisis atmosphere in the future decades, exactly what America’s enemies are hoping for.

A Way To Promote End Of Political Polarization: Nominate Merrick Garland A Justice Of The Supreme Court

Assuming that the nomination of Brett Kavanaugh to the Supreme Court fails to gain a majority of the US Senate, the future of the Court and its reputation remains at stake.

One way to resolve it is for both Republicans and Democrats to work toward the end of polarization, and call upon President Donald Trump to nominate Merrick Garland to the empty seat on the Supreme Court, three years after he was summarily dismissed and ignored by the Republicans, when President Barack Obama nominated him to replace Antonin Scalia, who died in February 2016.

Merrick Garland was seen by Obama as a compromise choice, whom the Republicans would accept, as he is seen as a moderate, and has a distinguished background as the Chief Judge of the US Court Of Appeals for the DC Circuit, the highest court next to the Supreme Court.

Garland is technically the “boss” of Brett Kavanaugh, and also was of Supreme Court Justice Neil Gorsuch, and both of them have always been very positive in their views of Garland.

Being in his mid 60s. Garland would serve far less than the theoretical 30 years that Gorsuch might serve, and that Kananaugh might serve if he was confirmed.

Garland is perfectly qualified to keep the Court balanced, and would likely replace Anthony Kennedy as the “swing vote” on the Court, and would prevent the kind of polarization represented by an extreme right wing choice for the Supreme Court, keeping it as four liberals, four conservatives, and Garland as the crucial vote, sometimes siding with one or the other side, as Anthony Kennedy did, and earlier, Sandra Day O’Connor did.

Why could not the two parties agree to a truce, to work toward cooperation, and return the US Senate to what it was under Lyndon B. Johnson and Ronald Reagan, when Senator Everett Dirksen worked with LBJ, and Speaker of the House Thomas “Tip” O’Neill did with Reagan, working across the aisle on many matters?

It is proper that Merrick Garland be put on the Court, as a distinguished, and accomplished man, who deserves, belatedly, three years late, to give his service to our nation’s highest Court.

Supreme Court Longevity An Issue, As Recent Justices Have Stayed Much Longer Than Average, Including Contested Nominee Clarence Thomas

In the midst of the controversy over Supreme Court nominee Brett Kavanaugh is the reality of how long he might serve.

There has been a trend whereby recent Supreme Court Justices serve much longer than historically traditional.

Right now, contested Supreme Court Justice Clarence Thomas, who was confirmed in 1991 despite strong testimony of Anita Hill, has served 27 years on the Court, and is already number 24 in longevity of service out of 113 members of the Court in American history. He will be number 17 in two years and number 13 in four years. In May 2028, he would break the all time record of 36 years and nearly 7 months of Justice William O. Douglas, and Thomas would be just about a month short of age 80, and can be seen as likely, if he stays healthy, to accomplish this goal.

If one just looks at the top fourth of all Supreme Court Justices in longevity, a total of 31 out of 113, all 24 years or more of service, we find the following recent Justices, all appointed since the 1950s, are on the list:

John Paul Stevens
William Brennan
William Rehnquist
Byron White
Anthony Kennedy
Antonin Scalia
Clarence Thomas
Ruth Bader Ginsburg
Sandra Day O’Connor
Harry Blackmun
Stephen Breyer
Thurgood Marshall

In the earlier history of the Supreme Court, the average length of service was about 15 years by comparison.

That is why the idea, proposed by this author two days ago, that a future Supreme Court Justice be limited to an 18 year term, allows for turnover, and prevents dominance by an ideological minority for decades, as now is threatened by Brett Kavanaugh, or another extreme right wing appointment by Donald Trump.

Supreme Court Justice Predictability Not So: Nine Cases From Felix Frankfurter To David Souter

As the hearings continue on the nomination of Circuit Court Judge Brett Kavanaugh to the Supreme Court, the question has arisen over whether Supreme Court Justices are predictable in their evolution on the Court.

The argument is that most Supreme Court Justices are “pegged” when they are considered for the Court, and do not disappoint the President and the party which nominated them for the Court.

But history actually tells us that there are quite a few exceptions to this perceived thought.

Felix Frankfurter (1939-1962), appointed by Franklin D. Roosevelt, migrated from an earlier liberal, almost radical view, to a clearly conservative view, disappointing many Democrats in the process.

Earl Warren (1953-1969), appointed Chief Justice by Republican Dwight D. Eisenhower, and thought to be a conservative oriented person, turned out in the mind of many Republicans “a flaming liberal”, totally surprising Eisenhower and many pleased Democrats and liberals.

William Brennan (1956-1990), appointed by Eisenhower, and a rare Catholic on the Court, and thought to be a conservative, turned out to be even more liberal in his jurisprudence, and lasted twice as long as Warren on the Supreme Court, stunning many conservatives and Republicans.

Byron White (1962-1993), appointed by John F. Kennedy, was thought to be a liberal, but was a consistent conservative in his years on the Court.

Harry Blackmun (1970-1994), appointed by Richard Nixon, started off as a conservative, along with his so called “Minnesota Twin” and colleague, Chief Justice Warren Burger, but veered sharply left more and more, diverging dramatically from Burger as the years went by, and honored by liberals as a great Supreme Court Justice.

John Paul Stevens (1975-2010), appointed by Gerald Ford, was thought to be a moderate conservative, but dramatically moved left in his jurisprudence, and remained on the Court for 35 years, third longest of any Justice in history, retiring at age 90, but still active at age 98 (the longest lived Justice ever), and still promoting liberal viewpoints.

Sandra Day O’Connor (1981-2006), appointed by Ronald Reagan as first woman on the Court, turned out to be far less conservative, veering toward the center, and seen as a balance on the Court, unpredictable during her tenure on the Court.

Anthony Kennedy (1988-2018), appointed by Reagan, and just retired, thought to be a hard line conservative, turned out to be the second “swing” vote with O’Connor, and then the true “swing” vote on the Court, joining the liberal side one third of the time.

David Souter (1990-2009), appointed by George H. W. Bush, was thought of as moving the Court to the Right, after William Brennan retired, but many Republicans and conservatives were severely disappointed in his unpredictability, and often his siding with the liberal view on many issues, more than one would have expected.

Notice, however, that seven of these nine cases, all but Frankfurter and White, were of Republican appointments that turned out to be much more “liberal” than one might have imagined, with only Frankfurter and White turning out to be more “conservative” than perceived at the time of their nominations to the Supreme Court.

Chief Justice John Roberts To Become The New Balance On The Future Supreme Court?

Chief Justice John Roberts has been on the Court for 13 years now, and he is generally perceived as a conservative.

But he has surprised some conservatives, as when he kept ObamaCare (the Affordable Care Act) alive in 2012.

Also, Roberts has often stated by the doctrine of “Stare Decisis”–to stand by things decided”–although he has not been consistent on this over the years.

The odds of Roberts siding with the liberals on the Court for the image of the Court named after him as Chief Justice, is a thin measure of what kind of balance he might present on the future Supreme Court.

It seems likely that on balance, he will be “number 5”, in the middle, but that middle will be much farther to the Right than Anthony Kennedy or Sandra Day O’Connor represented.

But then again, Justices have surprised their Republican Presidents who appointed them, as with Earl Warren and William Brennan under Dwight D. Eisenhower; Harry Blackmun under Richard Nixon; John Paul Stevens under Gerald Ford; O’Connor and Kennedy under Ronald Reagan; and David Souter under George H. W. Bush.

The best estimate is that no one should count on John Roberts avoiding “his” Court from being regarded as the most right wing, conservative Court since the time of Warren G. Harding. Calvin Coolidge, and Herbert Hoover nine decades ago, before the Great Depression and New Deal began the transformation of constitutional law.

Utah Senator Mike Lee Seems To Have An Edge For Supreme Court Nomination

On June 28, this blogger suggested that Utah Senator Mike Lee was a likely potential possibility for the Supreme Court nominee to replace Justice Anthony Kennedy.

He would be a rarity, a sitting United States Senator, chosen for the Supreme Court.

There is no requirement that a sitting Federal Court judge must be chosen, although that has become the tradition since Governor Earl Warren of California was chosen to be Chief Justice by President Dwight D. Eisenhower in 1953, with only Sandra Day O’Connor, who served in the Arizona State Senate, and chosen by Ronald Reagan in 1981, having any elective experience since then.

As stated on June 28, we had Senators earlier, including most impressively, Hugo Black, who had done good deeds on the Supreme Court.

So the belief that Mike Lee has the advantage comes to the forefront again. It was announced that Lee had been interviewed for the position, so he is on the short list.

Lee is 47, which from the viewpoint of Donald Trump and conservatives, is ideal, meaning a 35 year term on the Supreme Court under normal circumstances.

Lee is a sometimes critic of Trump, who did not back him, which makes him seem independent of any influence by Trump if Lee was on the Court.

Lee is pro life, which would make it hard for Susan Collins and Lisa Murkowski to support him, but neither is needed as long as some Red State Democrats—Joe Manchin, Joe Donnelly, Heidi Heitkamp—all who voted for Neil Gorsuch last year—support him. And both Collins and Murkowski ended up voting for Gorsuch, so their protestations seem weak.

It would be difficult for either Collins or Murkowski to vote against their own party and Senate colleague in the end, as after all, both voted for Jeff Sessions as Attorney General, and Collins even gave a strong endorsement presentation before the Senate Judiciary Committee for his nomination to the Justice Department, despite his outrageous racism.

So I suggest that Lee might be the choice of Trump, and more likely to sail through confirmation, and with a likely 53-46 vote (without John McCain voting), and possibly more Red State Democrats justifying the vote for their “Senate colleague”!

Party loyalty and Senatorial “courtesy” give Mike Lee the advantage, at least in theory, but we shall see!

Supreme Court Membership Could Be Increased In Future By Democratic Party Senate Majority, Perfectly Legal

Progressives have developed the idea that in the future, when Democrats gain the majority of the US Senate, they may move toward increasing the membership of the Supreme Court, playing hardball as much as the Republicans have under Senate Majority Leader Mitch McConnell.

McConnell refused to allow hearings for Merrick Garland, Barack Obama’s Supreme Court nominee to replace the dead Antonin Scalia, saying it was an election year, and improper to allow an outgoing President to make an appointment.

This was preposterous, as John Adams named John Marshall Chief Justice in 1801, after losing reelection to Thomas Jefferson; Andrew Jackson chose Supreme Court Chief Justice Roger Taney in 1836, his last year in office; and Grover Cleveland, Benjamin Harrison and William Howard Taft chose Justices in their last year in office; and Herbert Hoover chose Benjamin Cardozo in 1932, his last year in office; and Dwight D. Eisenhower chose William Brennan in the year of his reelection campaign; and Ronald Reagan chose Anthony Kennedy in his last year in office in 1988.

We have had differing numbers of justices. up to ten, and there is no constitutional barring of adding more Justices, as Franklin D. Roosevelt wished to do in 1937.

What is good for the goose is good for the gander, as the saying goes, and this might be a way to wield power on the part of the Democrats to create a balanced Court, as otherwise, we will have the most extremist Court since the 1920s!

The Pressure To Be Brought On Senators Heidi Heitkamp, Joe Donnelly, Bob Casey Jr. And Joe Manchin On Supreme Court Nominee

With Donald Trump ready to announce his Supreme Court nominee on July 9, pressure is starting to be brought against four “Red State” Senators facing reelection, who might vote for Trump’s selection.

Three of them—Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana, and Joe Manchin of West Virginia—crossed the aisle and supported Trump’s nomination of Neil Gorsuch to the Supreme Court last year, and have visited the White House already, being lobbied by Trump.

They, and Pennsylvania Senator Bob Casey, Jr, strongly anti abortion, but not supporting Gorsuch last year, are the four Democrats most worried about, with at least the first three feared likely to cross the aisle again.

The problem is that the Democrats cannot afford to repudiate these three or all four Senators, if they hope to have any chance of regaining control of the US Senate in November.

So while wishing to be critical and denouncing them if they abandon the Democratic Senate caucus on this matter, they are still needed for the future.

Supreme Court Battle Most Contentious Since Robert Bork And Clarence Thomas Nominations In 1987 and 1991

It is already clear, just two days after Supreme Court Justice Anthony Kennedy announced his retirement, that the battle to confirm a replacement will be the most contentious since Robert Bork was nominated by Ronald Reagan in 1987, and Clarence Thomas was nominated by George H. W. Bush in 1991.

Both times, the Democrats, however, controlled the Senate, and this time, they do not, which is a massive difference.

Bork was defeated in a roll call vote of 58-42, while Thomas was confirmed by a vote of 52-48.

The Democrats have limited ways to stop the confirmation of a replacement for Anthony Kennedy, as no longer can the filibuster tactic be used, and Senate Majority Leader Mitch McConnell is unwilling to give an inch to the Democrats.

The only hope for the Democrats is to convince Republican Senators Lisa Murkowski of Alaska and Susan Collins of Maine to back up their strong support of abortion rights, but both voted for Neil Gorsuch last year, as the first Supreme Court choice of Donald Trump.

But it is certain that the fireworks over this nomination, whoever it might be, will make the 2018 midterm elections even more a reason for all Americans to pay attention and to vote, as clearly, voting can change the course of history, and non voting has consequences!