The following was published in the Worcester Telegram & Gazette on Sunday, July 9.
By Paul I. Weizer, PhD
Professor of Political Science
Picture the scene. The American people elected a president who ran as a hard-line conservative, more so than any president elected in a generation. Following his victory, he sought to remake the system by reducing the size of government, cutting regulations, and championing a massive tax cut. A believer in supply side economics, this president believed that by cutting taxes on the wealthy, the money would trickle down to middle class and poorer Americans. The tax cuts would create massive deficits but were promised to pay for themselves. This was 1980, but also applies to 2018.
The Reagan years provide several interesting parallels to the current situation regarding the Supreme Court. Just as with President Trump, President Reagan was able, in his first year in office, to reward his supporters with a conservative appointment to the Supreme Court in the form of Sandra Day O’Connor. However, our stories parallel again with the retirement of another Republican appointee, Justice Anthony Kennedy.
As we look back on Kennedy’s career, it is interesting to recall that Kennedy was not Reagan’s first choice. During the period between the appointment of O’Connor in 1981 and the two picks which would follow, the Federalist Society rose to prominence as a pipeline for conservative legal talent in Republican administrations. Among the early leaders of this movement, using “original intent” to interpret the Constitution, were the next two Reagan nominees, Antonin Scalia and then Robert Bork. During the campaign in 2016, President Trump publicly stated that all of his judicial nominees would be picked by the Federalist Society. He went so far as to release a list of potential nominees which is posted on the White House website: bit.ly/TrumpListing. Trump’s first appointee, Neil Gorsuch, is a Federalist Society member. Undoubtedly, his next choice will be as well. By making ideological purity the requirement for judicial considerations, it is unlikely there could be another Sandra Day O’Connor or Anthony Kennedy.
In 1987, Reagan first nominated Judge Robert Bork to fill the vacancy of retiring Justice Lewis Powell. However, many justices of that era rose above party once on the bench, often disappointing the presidents who nominated them. Reagan’s first two appointments (O’Connor and Antonin Scalia) were ideological matches for their predecessors. Each was confirmed without a single vote in opposition.
Powell’s retirement would be different, as the hard-line Bork would have shifted the court after Powell’s service as an open-minded centrist. The Bork hearings were a spectacle. Massachusetts Senator Ted Kennedy famously stated that “In Robert Bork’s America, women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.” In the end, his nomination was defeated 58-42.
Reagan next nominated former Harvard Law Professor and federal Judge Douglas Ginsburg. However, Ginsburg’s past marijuana use was enough to withdraw his name from consideration at that time.
Which brings us to Anthony Kennedy. In 1988, he was confirmed unanimously. In his 30 years on the bench, Kennedy was predominantly conservative, but was a centrist by today’s standards, often the swing vote in 5-4 decisions. Though he most often voted with the conservatives, he diverged in a few areas of jurisprudence and changed laws in areas including homosexual rights and abortion.
Kennedy’s opinion in the 1996 case Romer v. Evans struck down a Colorado constitutional amendment that denied legal protection to homosexuals. His opinion in 2003′s Lawrence v. Texas overturned prior precedent and prohibited states from banning homosexual relations.
Most recently, Kennedy provided the decisive vote in recognizing same sex marriage under the Constitution. Writing in Obergefell v. Hodges, Kennedy concluded:
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
In abortion cases, Kennedy was a reliable conservative vote, with one glaring exception. In 1992, the court took a challenge to Pennsylvania’s abortion laws. This was the first such challenge since Clarence Thomas replaced civil rights icon Thurgood Marshall on the bench. Many commentators at the time predicted that the court would overturn Roe v. Wade and remove constitutional protection from abortion. However, this result was not to be. In a rare joint opinion, Kennedy joined Justices O’Connor and Souter in saving Roe. Writing that overturning Roe would undermine public confidence in the ability of judges to be neutral arbiters of the law, the joint opinion held that the court’s very legitimacy was at stake.
These decisions will form the legacy of Anthony Kennedy’s judicial career. But, they are also very much at risk given a Trump appointment. No doubt, these issues are where the battle lines will be drawn in the upcoming confirmation battle.
Paul I. Weizer, Ph.D., of Leominster, is a professor of political science at Fitchburg State University. He has written extensively on the Supreme Court and his books include The Opinions of Justice Antonin Scalia: The Caustic Conservative (2004).