With Kennedy Gone, Many Predict Roe v. Wade Is Doomed

President Trump says the process of replacing Supreme Court justice 'will begin immediately'
By Evann Gastaldo,  Newser Staff
Posted Jun 27, 2018 3:53 PM CDT
With Kennedy Gone, Many Predict Roe v. Wade Is Doomed
In this March 23, 2015, file photo, Supreme Court associate justice Anthony Kennedy testifies before a House Committee on Appropriations Subcommittee on Financial Services hearing on Capitol Hill in Washington.   (AP Photo/Manuel Balce Ceneta, File)

Supreme Court Justice Anthony Kennedy announced his retirement Wednesday, and President Trump wasted no time: The process to replace Kennedy on the high court will "begin immediately," the POTUS told reporters, according to USA Today. Trump said he will review an existing list of candidates that was developed when he filled Antonin Scalia's seat, ultimately appointing Neil Gorsuch. "It will be somebody from that list," which was put together with help from conservative legal scholars, Trump said. The president's opportunity for a second Supreme Court pick means that he, along with the Republican-controlled Senate, will be able to replace the moderate Kennedy—the court's swing vote, a Reagan appointee who often sided with the more liberal justices—with a staunch conservative. "The shift will transform the Court for decades to come," declares the Daily Beast. More:

  • Senate Majority Leader Mitch McConnell also spoke out quickly: "The Senate stands ready to fulfill its constitutional role by providing advice and consent on President Trump's nominee to fill this vacancy. We will vote to confirm Justice Kennedy's successor this fall," he said, per NPR.

  • The Daily Beast says anyone Trump nominates will basically be "rubber-stamped," and USA Today explains why: Last April, McConnell pushed through a rules change doing away with the traditional 60-vote threshold for Supreme Court nominees in order to keep the Democrats from blocking Gorsuch's confirmation. That means the Republicans' 51-seat majority is now enough to confirm a SCOTUS nominee regardless of Democratic opposition.
  • The Daily Beast specifically calls out two high court precedents that could now be in danger: Roe v. Wade (protecting a woman's right to have an abortion) and Obergefell v. Hodges (protecting a gay couple's right to get married).
  • The Week cites two tweets concerned about the abortion issue. "Anthony Kennedy is retiring. Abortion will be illegal in twenty states in 18 months," tweeted the New Yorker's Jeffrey Toobin. Added Vox's Dylan Matthews, "I'm not as confident as Jeff but the odds are like 70-80 percent."
  • On the matter of gay marriage, Nina Totenberg at NPR writes: "Quite simply, [Kennedy] remade the face of marriage in America. More than any other justice, he was responsible for the advancement of LGBT rights. He wrote four of the court's opinions on the subject over nearly two decades, and ultimately declared marriage between two people of the same sex a fundamental right protected by the Constitution."
  • At Vox, Matthews expands on his above-mentioned tweet, and says other issues that could be at risk after Kennedy is replaced include opposition to capital punishment, solitary confinement, and mass incarceration. A post-Kennedy court is also more likely to rule against affirmative action and in favor of religious challenges to anti-discrimination laws, he argues.

  • NPR notes that there will likely be an "epic political battle" over Kennedy's replacement and the Washington Post preidcts a "bitter partisan showdown," and Sen. Tammy Duckworth's tweet seems to be evidence of that. Retweeting McConnell's tweet after Scalia's death, she quoted him verbatim with the exception of replacing his #Scalia hashtag: "The American people should have a voice in the selection of their next Supreme Court Justice. #Kennedy." McConnell tweeted the same thing to justify blocking then-President Obama's pick to replace Scalia, Merrick Garland, claiming it was too late in Obama's presidency and the next president should be allowed to make the selection, the Hill reports. Democrats are now criticizing McConnell for pledging to confirm Trump's nominee to replace Kennedy just before this year's midterm elections, NPR notes.
  • And Senate Minority Leader Chuck Schumer is on board with Duckworth. Axios reports that he said on the Senate floor Wednesday, "Our Republican colleagues in the Senate should follow the rule they set in 2016: Not to consider a Supreme Court justice in an election year. ... Millions of people are just months away from determining senators who should vote to confirm or reject the President's nominee. And their voices deserve to be heard."
  • On Vox, Ezra Klein writes that the Democrats should learn a "terrible lesson" from this: They essentially sat out 2014's midterm elections, Republicans grabbed control of the Senate, and Democrats have now "lost the Supreme Court for a generation."

  • "Liberals came to value Kennedy because he was the best they could hope for. But Kennedy most often votes with the court’s conservatives," the Post points out, noting that Kennedy was conservative on matters including law and order, business, ObamaCare, and campaign finance regulation. Even so, his replacement will fundamentally change the court since he or she will likely not share Kennedy's often more liberal views on social issues, and it will be the first time in more than 25 years that a new justice would radically change the court's direction rather than replace a justice of similar ideology.
  • The Post also points out that of the court's four liberal justices, one is 85 and one is nearly 80; the oldest of the court's conservative judges is 70. "It is not being disrespectful to say anything could happen—and if it happens while Trump is president and the Senate is Republican, the court could go from a 5-4 conservative majority to a 6-3 or even 7-2 conservative majority," writes Jill Lawrence in a USA Today column urging Democrats to focus on winning back the Senate.
  • "Kennedy’s legacy could have been as a conservative respected for providing key votes to uphold a woman’s right to choose and the right-to-same sex marriage," writes Scott Lemieux at NBC News. "Instead, he shall be remembered as one of the most important allies of Donald Trump’s pro-business white nationalism."
(Read more Anthony Kennedy stories.)

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