In late June, Supreme Court Justice Anthony Kennedy announced his decision to step down from the United States highest court. His decision opened up a seat on the Supreme Court, granting President Trump the opportunity to appoint his second Supreme Court Justice. On July 10, the President announced Brett Kavanaugh as his nominee for next justice of the Supreme Court. If Kavanaugh becomes the next Supreme Court Justice, the United States will have a reliably conservative Supreme Court since arguably the 1930s. The court may continue to be conservative for decades to come.
While the pick represented a huge win for the Trump administration, Democrats displayed their severe discomfort of a conservative Supreme Court. Even before Kavanaugh was nominated, Democrats had entered a stage of hysteria. Shortly after Kennedy announced his decision to step down, Democrat Senator Kamala Harris said, “If Trump gets what he wants here what’s the court gonna look like the next 30 years? We’re looking at a destruction of the Constitution of the United States.” These reckless claims only continued after the nomination of Kavanaugh when Jay Michaelson, a Daily Beast columnist, stated, “When President Trump Monday nominated Judge Brett Kavanaugh to the Supreme Court, he probably doomed the right to abortion, same-sex marriage and maybe even contraception.” Although the Supreme Court may be reliably conservative for years to come, the impact of this new Supreme Court will be far less extreme than Democrats are speculating.
From Moderate to Hardline Conservative
When Supreme Court Justice Anthony Kennedy announced his retirement, conservatives across the United States rejoiced. Although Kennedy may have been appointed by former President Ronald Reagan and had been conservative at heart, he had a long history of siding with liberal policies. Throughout his tenure alongside four steady conservatives and four consistent liberals, Kennedy had consistently been the swing vote. Over the past decade, Kennedy had voted with liberals on the issues of gay rights, abortion, the death penalty, affirmative action, and individual rights. To conservatives, he was a moderate. That being said, his legacy as a conservative on the Supreme Court should not be underappreciated.
Despite voting conservative just 57% of the time, Kennedy voted conservative 71% of the time in close cases, often being that crucial swing vote, according to fivethirtyeight.com. During the Trump administration, he especially voted conservative granting the President numerous victories. He sided with Republicans on President Trump’s controversial travel ban (see my article titled Issuing a Travel Ban Was President Trump’s Only Move which addresses the travel ban) and the issues of unions, voter registration removals, labor arbitration, and immigration detention. Republicans alike should be grateful for Kennedy’s decision to step down during a Republican Presidency, which has allowed the President to appoint a conservative successor. The implications of Kennedy’s retirement under the Trump administration will be drastic, considering the President’s ability to replace the “moderate” Kennedy with a hardline conservative successor.
Granted the opportunity to appoint his second Supreme Court judge, President Trump nominated Brett Kavanaugh, a judge that would probably secure a conservative court for decades to come. Labeled a “conservative powerhouse” by the New York Times, Kavanaugh has had a long history working in federal courts and serving his country. He has written around 300 opinions and his decisions on gun rights, religious freedom, and campaign finance, which are often praised by conservatives.
According to the New York Times, “Judge Kavanaugh is estimated to be more conservative than 66 percent of all other current and former federal judges nominated since 1980.” The article continues with a note that in the past, judges with federal experience are more likely to side with the President, making Kavanaugh more favorable to conservatives given his previous work as a judge in the D.C. circuits. It is very clear that Kavanaugh is a steady conservative and Republicans should be overjoyed with President Trump’s pick. His pick will revolutionize the court for a generation to come and will have major implications on the rest of the United States government.
A Pure Overreaction
While conservatives are ecstatic by the nomination of Judge Kavanaugh, the Democratic Party is not as much. The Democratic Party has made their fear of a conservative court very clear, asserting that a conservative court will reverse years of liberal policies. Specifically, many Democrats believe decisions on the legality of same-sex marriage and abortion will be reversed in the future. While the court will probably vote conservative for years to come, these claims are grossly exaggerated.
In his Slate article, Mark Joseph Stern writes of the possibility of the ruling on gay marriage may be overturned. Stern’s claims are echoed within the Democratic Party but are purely blind speculation. A conservative Supreme Court will most likely not even address a potential reversal of the decision legalizing same-sex marriage. The court has had the opportunity to review the case in the past, needing only four justices’ approval, but has never reviewed the case. In addition, President Trump has called LGBTQ rights “settled law” and has made it clear he has no intention of attempting to reverse the law. The notion that the decision on gay marriage may be reversed with this new Supreme Court is simply ignoring ground reality, considering the court’s refusal to review the case in the past and the President’s acceptance of same-sex marriage as a part of the law.
Similar to the exaggerated claims of the reversal of legalizing same-sex marriage, liberals have made it clear they fear a reviewal of Roe v. Wade, claiming it will end in the Supreme Court making abortion illegal. The topic of abortion is a bit more complicated given that the Supreme Court has made decisions on abortion as recent as this year. But the idea that Roe v. Wade will be overturned is blasphemous, as the Supreme Court will continue to only make decisions on the issues of abortion, not its legality.
All five current conservative members of the court (assuming Kavanaugh is confirmed) firmly believe in the principle of stare decisis. Stare decisis is the idea that judges should adhere to the precedent when making their ruling. Meaning despite their personal views, judges should rule based on present law and previous rulings. Kavanaugh put the conservative viewpoint on stare decisis and abortion best during his D.C. circuit confirmation hearings in 2006. During the hearings, he stated, “I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court.” He confirmed to the court and the world, that although his personal views may not adhere to Roe v. Wade, as a judge he would rule faithfully in favor of Roe v. Wade. The belief of adhering to the ruling of Roe v. Wade is universally accepted by the conservative members of the court.
When President Trump and many Republicans state that they want to address the issue of abortion, they are referring to the issues related to abortion, not overturning abortion in itself. For instance, during this year’s Supreme Court session, there was a case addressing abortion. In National Institutes of Family and Life Advocates vs Becerra, the Supreme Court discussed whether pregnancy centers should be required to tell patients the availability of state-offered services, specifically abortion. Abortion cases in recent times have never addressed the legality of abortion, but rather the nuances of it. Although in this case, the court ruled conservative and in future cases, the court will probably continue to rule in favor of the conservative opinion, the court will only be addressing issues surrounding abortion – not its legality.
The legality of abortion will never be disputed, but rather its specifics and nuances will continue to be discussed and debated.
The Democrats Should Fear a Grim Future
Since 2010, during the Obama Presidency, the sphere of influence of the Democratic Party has slowly decreased, culminating in the current Republican majority in all three branches of the government. The executive branch is held by Republican President Trump. The Senate and House are conservative, and the possibility of Democrats changing that by winning enough seats in the 2018 midterms is starting to look like a long shot. The Supreme Court will be conservative for possibly a generation, and without the ability to count on the possibility of a sympathetic liberal swing vote in Justice Kennedy, the Democrats may be doomed.
There is a real possibility that the United States will be governed without a liberal influence for years to come. President Trump will be able to push his conservative agenda without any backlash from a Republican Congress, while the Supreme Court continues to side with the current conservative administration. The future is looking very unforgiving for the Democratic Party.
The Democratic Party should fear of irrelevance and their dwindling sphere of influence in the United States Government for the foreseeable future, and instead of blindly speculating over monumental court cases, focus on relevant issues.
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