To the Teacher
On June 27, 2018, Supreme Court Justice Anthony Kennedy announced his retirement from the nation’s highest court. Less than two weeks later, President Trump put forward his nomination for Kennedy’s successor—U.S. Court of Appeals Judge Brett Kavanaugh. If confirmed by the Senate, Kavanaugh would be Trump’s second Supreme Court appointee.
By replacing Kennedy, considered to be an independent-minded and relatively moderate justice, with the more conservative Kavanaugh, the president will likely influence the direction of the court for a generation to come. A more conservative Supreme Court threatens to overturn previous rulings on issues including abortion rights, marriage equality, affirmative action, and environmental protections, among others. Elected officials and grassroots groups concerned about these issues have vowed to contest Trump’s pick.
This lesson introduces students to the controversy over Justice Kennedy’s retirement and Trump’s role in reshaping the Supreme Court. The first reading reviews Kennedy’s career and highlights the significance of his role as a swing vote on the court. The second reading examines possible consequences of a Kavanaugh appointment and examines how a variety of groups are resisting Kavanaugh’s confirmation.
Reading One: Kennedy’s Retirement and the New Shape of the Supreme Court
On June 27, 2018, Supreme Court Justice Anthony Kennedy announced his retirement from the nation’s highest court. Less than two weeks later, President Trump put forward his nomination for Kennedy’s successor—U.S. Court of Appeals Judge Brett Kavanaugh.
Justice Kennedy had been on the court since his appointment by Ronald Reagan in 1987. During his time as a Supreme Court Justice, Kennedy earned a reputation as an independent thinker who voted sometimes with conservatives and other times with more liberal justices. In a June 27, 2018, article, NBC News reporter Adam Edelman explained the changing balance Kennedy’s resignation will likely bring to the court:
With Justice Anthony Kennedy's retirement, the Supreme Court will lose its key swing vote and a jurist who earned plaudits from both the left and the right for the weight he put on the rights to privacy, dignity and freedom of speech.
In his more than three decades on the high court, Kennedy was the deciding vote on a number of major cases that helped reshape the U.S. into a country where men and women had the legal right to engage in same-sex sexual activity in every state, where gay and lesbian individuals had the legal right to marriage, where the right of a woman to choose whether to have an abortion remained intact, and where free-speech protections were extended to corporations seeking to make financial expenditures for political campaigns….
"While he was a conservative at heart, he would depart from his colleagues on the right of the court when there were issues of privacy and individual rights," said Jonathan Turley, a professor of law at the George Washington University Law School.
While the Supreme Court is officially a non-political institution, the monumental decisions that justices are sometimes called on to make have serious political consequences. Writer and lawyer Jeffrey Toobin clarified the stakes at play in an article for The New Yorker:
Kennedy is no liberal. He provided the fifth vote to deliver the Presidency to George W. Bush in Bush v. Gore; he was the author of the majority opinion in Citizens United v. Federal Election Commission, which hastened the deregulation of American politics; he upheld Trump’s travel ban this term; and his votes on the day-to-day grist of the Supreme Court’s docket—on labor law, the environment, and health care—hewed closely to those of his fellow Republican nominees. But, to the dismay of conservatives, he departed from their orthodoxy on some key issues in addition to gay rights, among them affirmative action, the death penalty, and, most notably, abortion rights. In the 1992 case of Planned Parenthood v. Casey, Kennedy voted to uphold Roe v. Wade, and he remained a reluctant but steady advocate for maintaining the precedent.
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[If an extreme-right justice is appointed to replace Kennedy, the court], it will overrule Roe v. Wade, allowing states to ban abortions and to criminally prosecute any physicians and nurses who perform them. It will allow shopkeepers, restaurateurs, and hotel owners to refuse service to gay customers on religious grounds. It will guarantee that fewer African-American and Latino students attend élite universities. It will approve laws designed to hinder voting rights. It will sanction execution by grotesque means. It will invoke the Second Amendment to prohibit states from engaging in gun control, including the regulation of machine guns and bump stocks.
If confirmed by the Senate, Kavanaugh would be Trump’s second Supreme Court appointee. The president’s first Supreme Court appointment was surrounded by controversy, because it filled a vacancy that was created during Barack Obama’s last year in office—one that the then-president would ordinarily have been allowed to fill. A November 14, 2016, article in Rolling Stone by reporter David S. Cohen explained the story of how Republicans secured this Supreme Court appointment:
When Justice Scalia died suddenly in February [2016], President Obama was gifted the opportunity to fill his third seat on the Court. He had previously replaced David Souter with Sonia Sotomayor and John Paul Stevens with Elena Kagan. Neither of those appointments shifted the Court’s ideological balance, as in each case Obama replaced, broadly speaking, a judicial liberal with another liberal. Replacing Scalia, on the other hand, was going to be a monumental shift in the Court. Scalia was one of the most conservative justices in the history of the Supreme Court. An Obama replacement would give the Court its fifth liberal and shift it to the left in historically significant ways. President Obama and Democrats were salivating at the opportunity.
The Republicans, though, were having none of it. Through unflinching and unified obstructionism combined with Tuesday’s election of Donald Trump, they succeeded in stealing the seat right out from under President Obama’s nose. It was a staggering case of grand theft judiciary.
This all started almost immediately after Scalia’s death, with the Republicans claiming a new theory that a president should not be able to appoint a justice during an election year; rather, the people should be allowed to speak and decide on the direction of the Court, they said. Never mind that justices have been confirmed regularly throughout history in election years, and that presidents have constitutional authority to appoint judges to the federal judiciary in all four years of their term, not just their first three, and that the Court would have to (and continues to) function with only eight justices. The Republicans understood the stakes of shifting the Court’s ideology, so they put up a united obstructionist front and never wavered in saying they would not confirm an Obama appointee this year.
The fact that President Obama was denied the opportunity to make a Supreme Court appointment in 2016 has given Trump an usual opportunity to shape the future of the court, and it has only intensified the debate over Kavanaugh’s nomination.
For Discussion:
- How much of the material in this reading was new to you, and how much was already familiar? Do you have any questions about what you read?
- Why was Justice Kennedy considered to have an unusually influential role on the Supreme Court?
- According to the reading, the series of events that allowed President Trump to make his first Supreme Court nomination was extremely controversial. Why was that? Do you remember hearing news about this at the time?
- What do you think? Was it legitimate to delay Justice Scalia’s replacement until after the 2016 election? How are the consequences of this move playing out today?
- Many believe that the main job of the Supreme Court is to interpret the Constitution in an impartial manner. Given this, why do the political beliefs of the justices matter? How do politics and legal interpretations intersect?
Reading Two: Changes that a Second Trump Appointee Might Bring
What kinds of decisions might a new, more conservative Supreme Court make? And how will this affect the lives of Americans?
Given that Justice Kennedy served as a crucial swing vote in several 5-4 decisions by the court, observers have identified a variety of issues on which Kavanaugh or another conservative justice might make decisive changes.
A conservative majority could easily reverse affirmative action in college admissions, sanction prayer in public schools, restrict rights of detainees at the Guantanamo Bay Detention Camp and similar facilities, and drastically expand the number of people who become eligible for the death penalty.
But, beyond this, Kennedy was best known for his stances on two key issues: abortion rights and gay rights. A new majority on the court could well move in a different direction.
In an early sign of his independent streak, Kennedy sided with a narrow majority in 1992 on Planned Parenthood v. Casey to reaffirm the right to abortion without undue restrictions. Kennedy’s retirement throws reproductive rights into question. One advocate, Executive Director Kellie Copeland of NARAL Pro-Choice Ohio, explained in a June 27, 2018 statement:
For years, Justice Kennedy held together a delicate majority that protected the constitutional right to access legal abortion — and the fundamental ability to control their own lives, finances, and futures. Now, with this new Supreme Court vacancy, Roe and the constitutional right to access abortion hangs in the balance. The lawsuits necessary to overturn Roe are already moving through the lower courts, and extreme anti-choice activists boast that they only need one new Trump justice to end legal abortion in America.
Justice Kennedy was also the deciding vote on cases relating to the rights of lesbian, gay, bisexual, and transgender (LGBT) people, playing an influential role in protecting LGBT rights and allowing same-sex marriage. Now, with Kennedy gone, advocates consider LGBT rights to be in jeopardy. Samantha Allen, senior reporter for The Daily Beast, explored the extent of this challenge in an article published on July 3, 2018:
“Trump having the chance to appoint another Justice is really an existential threat,” said Shannon Minter, legal director of the National Center for Lesbian Rights.
Kennedy, who cast the swing vote in major 5-4 LGBT rights cases like Obergefell, could soon be replaced by a Justice with an anti-LGBT track record, judging from lists of possible nominees. That swap would happen at a pivotal moment, just as LGBT legal successes at the district and circuit level were due to be tested by the Supreme Court.
“There are a wide range of questions about LGBT rights that could easily be before the Supreme Court over the next, even, two years,” James Esseks, director of the ACLU’s LGBT and HIV Project told The Daily Beast….One major question headed to the Supreme Court is whether or not LGBT people are indeed protected from employment discrimination under Title VII of the Civil Rights Act, as multiple federal courts—and the Equal Opportunity Employment Commission—have held.
Esseks told The Daily Beast that two to three high-profile cases regarding LGBT employment discrimination could be reviewed by the Supreme Court soon, bringing the long-simmering issue to a boil.
While Trump nominee Brett Kavanaugh is regarded as a very conservative pick, it’s not entirely clear what positions he might take should he be confirmed. As Jeffrey Toobin wrote in the The New Yorker:
In his day-to-day work [as a federal appeals court judge], Kavanaugh represented a state-of-the-art judicial conservative: against most kinds of government regulation, including net neutrality and especially anti-pollution rules, and in favor of an expansive conception of gun rights under the Second Amendment. On the most controversial issue likely to face a Supreme Court nominee, Kavanaugh artfully dodged taking a firm stand. In a case dealing with abortion rights, concerning an undocumented teenager held in federal custody in Texas, he supported the Trump Administration’s efforts to block her access to the procedure, but he didn’t go as far as some colleagues in taking a firm anti-abortion position.
Because of the high stakes of the appointment, groups concerned about reproductive and LGBT rights, among other issues, have begun organizing to voice their opposition. Much attention has been focused on U.S. Senators, since the Senate must confirm the Supreme Court nominee.
Sheryl Gay Stolberg and Jonathan Martin, two reporters for The New York Times, detailed their efforts in a July 10, 2018 article:
Monday night, hundreds of liberal activists gathered on the steps of the Supreme Court for a rally organized by dozens of left-leaning groups.
This week, the group Indivisible, as part of what is being billed as #savescotus, will deploy activists to show up at the district offices of senators to demand that they oppose the pick. The summer grass-roots efforts will culminate on Aug. 26, the anniversary of the day in 1920 that women were granted the right to vote, when progressives hope to draw millions of demonstrators to rallies in all 50 states to send a statement of opposition to Mr. Trump’s pick.
Liberals recognize that torpedoing Judge Kavanaugh will not be easy given the pressure on those Democratic senators facing re-election in states that Mr. Trump carried in 2016 by double-digits, but they say there is a precedent: the failed Republican effort to repeal the Affordable Care Act, in which [Republican Senators] Collins and Murkowski sunk the legislation by voting with Democrats.
Some groups organizing in opposition hope to delay Kavanaugh’s confirmation long enough for Democrats to win a majority in the Senate and force the president to replace his controversial appointee with a more moderate candidate. Whether this strategy could succeed remains an open question.
For Discussion:
- How much of the material in this reading was new to you, and how much was already familiar? Do you have any questions about what you read?
- According to the reading, what are some of the issues that could be affected by a new, more conservative Supreme Court majority?
- Which of these issues is most important to you personally? How might decisions by a new supreme court majority affect your life?
- What are some things concerned groups are doing to oppose Brett Kavanaugh’s confirmation as Justice Kennedy’s replacement? What do they hope to accomplish?
- When Republicans blocked President Obama’s Supreme Court nomination during the last year of his presidency, many people argued that it was a breach of rules. Would it be a breach of rules to stall the confirmation of Trump’s nominee until the mid-term elections in November? If it is a breach of rules, is it justified? Why or why not?
--Research assistance provided by John Hess.