The US Supreme Court, which just completed its most conservative term in recent memory, is about to move much further to the right with Justice Anthony Kennedy announcing that he is retiring. Since the retirement of Justice Sandra Day O’Connor, in 2006, Kennedy has been the “swing justice,” frequently determining the outcome of cases. I long have advised lawyers with a case before the court to make their briefs a shameless attempt to pander to Kennedy; if the clerk of the court would allow it, they should put Kennedy’s picture on the covers.
This year, Kennedy was consistently with the conservatives. In the just-completed term, there were 19 5-4 rulings out of 63 decisions. Kennedy voted with Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch in 14 of them. He voted with the bloc of liberal justices — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan — zero times. A year ago, in the ideologically divided cases, Kennedy was with the liberals 57 percent of the time.
What then will it mean to replace Kennedy with someone probably even more conservative? One way to look at is that this will make Roberts the ideological middle justice on the court, and he is far more conservative than Kennedy. There are a number of areas where it is easy to see how replacing Kennedy is likely to make all the difference.
Reproductive freedom. I believe that there are four votes to overrule Roe v. Wade and allow states to prohibit all abortions, or at least to allow virtually every restriction on abortion. Kennedy famously was the fifth vote to reaffirm Roe v. Wade in 1992, and as recently as two years ago he was the fifth vote to strike down a Texas law restricting access to abortion. Roberts, by contrast, dissented and never has voted to strike down any restriction on abortion.
Gay and lesbian rights. Kennedy has authored every Supreme Court decision in history advancing rights for gays and lesbians, including two opinions protecting a right of marriage equality for gays and lesbians. Roberts wrote an angry dissent in Obergefell v. Hodges vehemently objecting to the court’s declaring unconstitutional state laws prohibiting same-sex marriage. Thomas, Alito, and Gorsuch have made clear that they want to overrule that decision.
Affirmative action. Kennedy wrote the 2016 opinion in Fisher v. University of Texas, upholding the university’s affirmative action program. Roberts is a staunch foe of all forms of race-conscious remedies, as he repeatedly has forcefully expressed. Replacing Kennedy is likely to mean that the court will declare all forms of affirmative action to be unconstitutional. This will have a devastating effect on diversity in colleges and universities.
Limits on criminal punishments. Kennedy wrote the majority opinions for the court declaring the death penalty unconstitutional for crimes committed by juveniles (Roper v. Simmons in 2005) and for crimes other than homicide (Kennedy v. Louisiana in 2008) and holding unconstitutional sentences of life without parole for non-homicide crimes committed by juveniles (Florida v. Graham in 2010). Kennedy was in the majority in the 5-4 decision that held that there cannot be mandatory sentences of life without parole for homicides committed by juveniles (Miller v. Alabama in 2012). Roberts dissented in all of these cases that were decided after he joined the court, in 2005, as did Thomas and Alito.
There is no doubt that the Democrats will fight hard to block a very conservative nominee. But there is little they can do unless they can persuade two Republican senators to join them. A year ago, Senate Republicans changed the Senate rules to eliminate the possibility of a filibuster of Supreme Court nominations.
Nor is this just about the next year or few years on the Supreme Court. Roberts, Thomas, Alito, and Gorsuch are all 70 or younger. It is easy to imagine that they will remain on the bench for another 10 or 20 years. There is going to be a conservative court — the most conservative since the mid-1930s — for a long time to come.
The obvious lesson from all of this is that elections, and especially the Electoral College, matter. Republican voters understood the importance of the 2016 election for the Supreme Court much more than Democratic voters. Of those who voted for Trump, 56 percent said that the Supreme Court was the most important factor in their choice for president, but for those who voted for Hillary Clinton, that figure was only 41 percent. Kennedy’s retirement ensures that the longest-lasting legacy of the Trump presidency will be a very conservative Supreme Court.
Erwin Chemerinsky is a professor of law and dean of the Berkeley School of Law at the University of California.