Anthony Kennedy’s decision to retire at a moment when Donald Trump holds the presidency and Mitch McConnell controls the Senate hands conservatives true control of the Supreme Court for the foreseeable future.
As Dylan Matthews writes in an essential piece, “an America after Anthony Kennedy looks significantly different from America before. The movement against mass incarceration could run into unprecedented resistance from the Court, and the anti-abortion movement could notch its greatest victories in a half-century. This Supreme Court vacancy will give Donald Trump the power to shift jurisprudence on a range of critical issues. It could wind up being the most important part of his legacy.”
But it didn’t have to be this way. Liberals looking forward with horror have one lesson to learn from the jurisprudence this will unleash: Every election matters.
Merrick Garland, Anthony Kennedy, and the “meh” midterm
Four weeks before the 2014 election, the Pew Research Center released a report detailing the American public’s disinterest in the campaign:
Midterm elections rarely excite the general public, but 2014 is shaping up to be an especially underwhelming cycle for many Americans. With about a month remaining in the congressional races, 15% are very closely following news about the midterms — down from similar periods before the elections in 2010 (25%) and 2006 (21%).
Pew called it the “Meh Midterm,” and they were proven right: When the votes were counted, weeks later, turnout was 36.3 percent — the lowest it had been in 72 years. “Neither party gave voters an affirmative reason to show up at the polls,” complained the New York Times. Some commentators — like, well, me — argued that there was no such thing as a dull election when both the Senate and the Supreme Court were so closely divided, but such arguments fell on deaf ears.
The absence of enthusiasm favored Republicans: They picked up nine Senate seats, ripping control of the chamber away from the Democrats for the first time since 2006. And did it matter? It did. 466 days later, Antonin Scalia unexpectedly died, opening a vacancy that could’ve swung the Supreme Court for a generation.
Liberals will forever loathe Sen. Mitch McConnell for denying Merrick Garland so much as a hearing for the vacant seat. And they’re right to do so; McConnell insisted that a Supreme Court vacancy could never and should never be filled in an election year.
It was a ridiculous argument, and everyone knew it. Here’s the test: 2018 is an election year. Raise your hand if you believe McConnell and the Senate Republicans will refuse to consider any replacement candidates until after the election, to make sure the people get to weigh in.
Anyone? I didn’t think so.
McConnell’s 2016 gambit wasn’t about principle, it was about power: He wanted a conservative Supreme Court, and he had the votes to protect that preference. McConnell could stop Garland because Democrats sat out the 2014 election, letting Republicans amass the majority needed to block Obama’s appointees.
Midterms matter. Always.
I remember covering the 2014 election, and the narrative was that it just didn’t matter. Barack Obama had won reelection in 2012 and gotten filibustered on virtually everything he tried. Government was gridlocked, and no matter what happened, it was likely to stay gridlocked. Democrats were disappointed and disaffected. What was the point?
Turns out the Supreme Court was the point. The lure of an open Supreme Court seat is why many conservatives turned out for Donald Trump in an exceptionally close election; it’s possible that McConnell’s gambit elected Trump.
And Trump came through on his end of the bargain; he replaced Scalia with the exceptionally conservative Neil Gorsuch, and he’s promised to do the same with any other vacancies that come up, too — Kennedy’s retirement gives him that chance.
The result, for Democrats, is shattering. Democrats have won the popular vote in six of the past seven presidential elections, but conservatives continue to dominate the Supreme Court, and they are using that dominance to weaken Democrats politically: from Bush v. Gore to Citizens United to Wednesday’s Janus decision weakening public-sector unions to the gutting of the Voting Rights Act to the refusal to curb gerrymandering, Republicans are using their control of the Supreme Court to buttress their waning numbers nationally.
Power, once gained, can protect itself, and that’s particularly true when its concentrated in an institution insulated from democratic accountability and built around lifetime appointments.
McConnell’s scheme relied on Democrats’ disaffection
In April, McConnell was asked, by Kentucky Today, to name his most important achievement in public life. “The decision I made not to fill the Supreme Court vacancy when Justice Scalia died was the most consequential decision I’ve made in my entire public career,” he said.
McConnell was right. Many of these were 5-4 rulings, which is to say they’re not triumphs of legal reasoning, they’re triumphs of political power. These cases were decided not during oral arguments but during the 2014 midterms. The lesson of today’s Court rulings isn’t that McConnell is a jerk. It’s that midterm elections matter.
Anthony Kennedy’s retirement means Republicans will be able to shore up their 5-4 majority with a more consistent conservative than Kennedy. But it’s possible the coming years could offer them more than that: Ruth Bader Ginsburg is 85. Stephen Breyer is 79. It’s not impossible to imagine a liberal seat opening before the end of Trump’s term.
We are 133 days away from the 2018 election. The path to a Senate majority for Democrats is narrow, but given that they only need to pick up two seats, it’s certainly plausible. If Democrats take back the Senate, they have the opportunity to wield the same power Mitch McConnell did over any future Supreme Court vacancies — but only if Democrats learn the lesson of 2014 and turn out to vote.
- “America after Anthony Kennedy.” Read Dylan Matthews’s excellent piece on Vox about what the Supreme Court will look like if Trump replaces Scalia.
- “Yes we ban.” Emily Bazelon of New York Times Magazine joins Today Explained to explain the opinion, a fiery dissent, and how the justices used this case to undo one of the Court’s most racist decisions.
- “How Democrats missed a chance to reshape the Supreme Court for a generation.” This is what likely would’ve happened if Hillary Clinton had won, and Democrats had named Scalia’s replacement. Again, elections matter, if for no other reason than the courts.