The Promise and the Pitfall of Justice Kennedy’s Retirement

Max Steuer

Comenius University

June is a reliably busy month for the US Supreme Court observers. This year, the usual announcements of decisions in cases of central importance were trumped by an extraordinary one. US Supreme Court Justice Anthony Kennedy, the legendary swing vote on the bench for the last decades, decided to retire effective of 31 July this year.

Following the first hours of global media reporting about this news, one could easily get the impression of an approaching judicial apocalypse. The ‘future of U.S. constitutional law’ is ‘entirely up for grabs’, ‘Democracy is at stake’ or ‘The Supreme Court will now fall to chaos’ were just a number of the headlines presented in the news.

The Promise…

What do these media reactions tell about the current perception of the US Supreme Court? Understandably, different media emphasize various aspects of the groundbreaking event. However, the scope of reporting in US newspapers just within the first days after the announcement signal that its importance is virtually undisputed. They indicate that the US Supreme Court promises to retain a central position within the US political system and is believed to continue to matter in the ‘Trump era’, despite the rise of various ‘uncourtly’ trends such as ‘populist authoritarianism’ or ‘autocratic legalism’.

For fans of the separation of powers, this seems like good news. After all, the judiciary represents a core component in the system of checks and balances, countering the Hamiltonian claim of courts being inferior to the executive or the legislature. Indirectly, and with respect to the particularities of the US context, the developments confirm the significance of the legislature as well, with eyes turning towards yet another ‘appointment battle’ in the US Senate.

Moreover, the nation-wide (and to the extent the US Supreme Court is a ‘role model’ for high courts, international) debate may further increase the attention paid to the Supreme Court, either with new hopes (such as conservatives yearning for the overturning of Roe v. Wade) or fears (such as liberals horrified by the prospects of that happening).

Hence, the promise of the Supreme Court lies in symbolizing the continued significance of the separation of powers, not least through the fear that a Republican-controlled Court would be playing into Trump’s hands much more frequently than the current one did with its affirmation of the ‘soft version’ of the anti-Muslim ban.

…and the Pitfall

However, this setting comes with a pitfall at least as significant: it reinforces the understanding of the Court as just another political (and politicized) institution with ‘politicians in robes’, divided according to party lines on the bench.

Justice Kennedy could be viewed as a real-life rebuttal of this view, as some of his decisions upset conservatives and others did not impress liberals. His judicial maneuvering, consistent or not, provided a tangible reference to judicial philosophies being different from, and much more complex than, political ideologies. Unfortunately, other arguments such as that the majority of all Supreme Court decisions are, in fact, unanimous, tend to work much less effectively as they are not represented by flesh-and-blood figures in the era of personalized politics.

The alignment between Trump’s promise to overturn Roe v. Wade and his pick of the next Supreme Court nominee further undermines the notion of the Court as an institution in which law plays a greater role than in any other. Emerging views, such as those pointing attention towards Chief Justice Roberts possibly becoming a new swing vote because of a ‘desire to avoid a massive public backlash’, feed into this narrative remarkably well.

Even though in this scenario the worst fears of the liberals would not materialize thanks to Roberts shying away from overruling crucial precedents, the understanding of judicial decision-making remains the same—a Supreme Court justice, one of the most prominent jurists in one of the longest-running democracies in the world, changes views on the law not unlike the weather (or, in this case, public opinion).

On the top of that comes the list of jurists Trump declares he will employ to find Kennedy’s replacement. The list was assembled with the help of an organization with a demonstrable ideological agenda. Consequently, if a precedent like Roe v. Wade is overruled with a vote of a justice selected in this political setting, even the most elaborate judicial reasoning (for example, based on originalist arguments) cannot dismiss the view that the Court will have done ‘Trump’s job’ and become his ‘extended arm’.

On a more reformist note, future political practice could prevent retirements to occur at a time when elections are approaching and thus conflict between the parties may be expected over the timing of and competence over the new appointments. However, as observed elsewhere, any kind of reform of the Supreme Court is highly demanding already at the level of practice, not to speak of concrete statutes. And that applies even without the degree of polarization on the Court and in American society that experts witness today.

The Court’s Position Comes at a Price (and Grants Influence to Some)

At the level of public perception, Kennedy’s retirement and the surrounding debate may force judicial philosophies to bow to political ideologies. While the US Supreme Court apparently retains its position within the separation of powers, the “law” has begun to lose its role even as a supporting actor. Such a price bears yet unpredictable consequences for the confidence in law as an order enabling (among others) the redress of grievances.

Finally, there is a price for the broader societal (and academic) debate as well. In the appointment process of Kennedy’s successor, surprises may well arise (and it would not be the first time for Supreme Court appointments). Regardless of that, one intellectual ‘sect’, to use the concept coined by political scientist Gabriel Almond, clearly gains more influence from this understanding of the Court than others: that of judicial attitudinalists, who identify judges’ ideological preferences as the core motivations for their judgments (while not entirely discounting the place of other factors, such as institutional, legal and textual factors).

Max Steuer is a Doctoral Researcher at the Comenius University in Bratislava, Slovakia and Visiting Researcher at the Berlin Social Science Center.