Great speculation has arisen about the effects of Justice Anthony Kennedy’s resignation from the Supreme Court, particularly on the rights, liberties, and politics in the United States. Will it ultimately change course in the USA? And does this also illuminate the fundamental flaws in American politics, the Supreme Court, and the Constitution? Maria Armoudian is joined by Sanford Levinson, John Vile, and Stephen Griffin.
Sanford Levinson is a Professor of Government at the University of Texas. He is the author of Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It).
John Vile is a Professor of Political Science at Middle Tennessee University. He is the co-author of Constitutional Law in Contemporary America, Vol. 1: Institutions, Politics, and Process.
Stephen Griffin is a Professor of Constitutional Law at Tulane University. He is the author of American Constitutionalism.
We have a momentous event here, or at least it’s been made out to be a momentous event. I think we need to start by talking about Justice Anthony Kennedy’s legacy and who he is. Sandy Levinson, if you were going to encapsulate, who he is, and what he has meant for American politics and law, what would you say?
Sanford Levinson: Well most obviously he’s been the so-called ‘median justice’ for the last twelve years or so. Practicing lawyers would often pitch their arguments at Anthony Kennedy because he would be the fifth vote in the five-to-four coalition. His legacy will clearly be with regard to gay rights. He picked that, he was assigned to write the key opinions, and that is what he will be best known for. That is in part why many people independently of Donald Trump lament his leaving the court.
The other legacy, quite frankly, is a vaporous style of writing opinions that can drive law professors crazy. Because it’s very difficult to figure out exactly what they mean in terms of applicable doctrine for later cases.
John Vile: I don’t think I could have said it any better. I like the way Sandy avoided the term Justice Kennedy hates, which is calling him the ‘swing justice’. I think what makes this resignation and appointment fascinating is it’s likely to be more consequential than the last. It would have been hard to replace [Antonin] Scalia with someone much more conservative than he was, but while Kennedy probably leaned Right in more cases than not, Trump could probably find somebody who is farther to the right than he is, and would therefore have a greater impact on the court than replacing Scalia with [Neil] Gorsuch.
Stephen Griffin: I would add to Sandy’s comment that Kennedy was a conservative Californian – that’s where I think some of the gay rights comes from, but with a libertarian bent that produced not only gay rights opinions, but very strong First Amendment opinions, especially the Citizens United case which is quite well known and decried among liberals. I don’t think we should forget that it’s not just opinions decided that matter, it’s what the court is not necessarily taking up because they may be dominated by conservatives or liberals.
I’d agree with Sandy that it’s not just a style of reasoning that’s maybe vaporous, but the content of Kennedy’s reasoning may have a short shelf-life because it was so idiosyncratic. I’m not sure anyone views Sandra Day O’Connor as leaving a really important doctrinal legacy. I’m afraid that some of Kennedy’s opinions including the area of gay rights, may not have a long shelf-life as he would last because he pursued courses of reasoning that were very hard for not just law professors, but for lower court judges to understand and continue to enforce.
I understand that Donald Trump really worked hard to persuade Anthony Kennedy to leave, to retire. I wonder now, are we remaking American society and American law in Trump’s image? How can we put this into a broader political and historical context?
SL: The idea of Trump’s image is mixed. I don’t think Donald Trump could care less about abortion. I think he has made a quite reasonable political calculation that his base, on whom he clearly relies, cares deeply about abortion, and he’ll give it to them. And the next justice will clearly vote either to minimise or out-and-out overrule [landmark abortion rights case] Roe versus Wade. Nobody can reasonably believe anything else. And when Donald Trump says that he’s not using abortion as a litmus test is in so many areas simply lying through his teeth. But as I say, I don’t think he cares.
I think what he does care about is presidential power. And the fact is, Anthony Kennedy turned out to be a reliable vote for what I regard as near-dictatorial presidential power in the area of foreign affairs and military policy. And I have no doubt that he will pick somebody that agrees that basically the president can do whatever he wants. I would add one other caveat though. Law professors or very gifted political scientists love to focus on the court, and the pathology of law professors, more so than political scientists, is to believe that the court is kind of uniquely important in running American life. The fact is, that if you want to understand the Trumpification of American politics, you have to look at an absolutely subservient Congress. You have to look at [Senate Majority leader] Mitch McConnell and [House Majority leader] Paul Ryan. So the important thing the next justice will do is simply rubber-stamp whatever the president wants, and whatever a Republican Congress is able to pass. And that is the Trumpification of politics. Abortion is a side-show for the base.
Given Mitch McConnell, and whoever replaces Paul Ryan, and given what they have done during the Obama Administration in not letting him appoint a justice – what stops Donald Trump from appointing a completely unethical justice who doesn’t really care about law at all and has a profound effect on elections and democracy itself?
SL: I don’t think that’s a fair way of putting it. Because I think the people on his list, insofar as he knows anything about them, are all smart, well-educated and not unethical. I think the reality of American politics, including American legal politics, is that we’re absolutely polarised. You don’t have to believe that Samuel Alito or Clarence Thomas are unethical people in order to believe that they’re profoundly wrong. We have to talk about ideology rather than about trying to find unethical behaviour in their past. I would be appalled if Amy Coney Barrett was appointed to the Court, but I have no doubt that she passes any standard tests with flying colours.
I’d like to insert one court case into this question, which is Bush vs. Gore [the case that decided the 2000 Election]. But that particular case leads me to question ethics and integrity.
SG: Right. And there’s other reasons as well, like the Republican shutdown of the process that led to the Senate not considering Merrick Garland. There’s plenty of things for Democrats to be upset about. The fact is that in standard McConnell political terms, the Republicans have played this beautifully. You’re looking at the fulfilment of a very long term plan. Trump has this list, it’s not his list. He’s catering to the base because it’s a very well organised effort by conservative lawyers to put together a bench for [Trump] to select that don’t have any particular ethical orientation. They do have a very strong orientation that deserves more exploration, which is that many of them believe that the US has been on a bad course as far as not really pursuing the rule of law for a very long time. And Roe versus Wade is one of their top examples of that. And that’s why I believe it will come under threat. But Trump didn’t decide to make this list in his image. He rather appropriated a list and an agenda that was already a form for him, and has been around for decades. This is one of the biggest payoffs for that effort that was long-running before Trump decided to run for president.
JV: You started out by talking about the Trumpification of the court and I was going to say that Trump has been very lucky in that he has two appointments in his first two years, and Obama went eight years and only got two. Part of that is because Obama’s last nominee was blocked. So it’s not completely luck. The other thing I would mention, because I certainly agree with what Sandy said – it’s not a question of whether these people are ethical or not, or it’s not likely to be. I mean, the only thing that could subvert the nomination over the next three or four months would be if some secret scandal were revealed, or you found out they faked a law degree or something that seems almost incredible. But maybe when we remember Bush versus Gore we should also remember US versus Nixon. And I may need a little help here, but I believe Nixon had appointed either four or five of the Justices, and if I recall, William Rehnquist recused himself. But all the Nixon appointees who voted in that case, voted against Richard Nixon on the issue of executive privilege.
While it is true that conservative justices do tend to be more deferential to presidential powers, I don’t think that they would necessarily rule over him. If we had a case where there were direct subpoenas to the president on a matter that seemed to involve criminal wrongdoing, Trump may very well be surprised. You can appoint someone to the court, but once they’re there, sometimes they grow a backbone.
SL: I think US versus Hawaii [which upheld the Travel Ban against Muslims] is more relevant. Korematsu [US versus Korematsu, upholding the legality of internment camps for Japanese-Americans during WWII], which the Court flamboyantly and I think basically dishonestly overruled, can easily be distinguished in lots of ways, so that it was a bone thrown to liberals. With US versus Nixon, at that point, his popularity was somewhere in the twenties. It was all about getting access to tapes that would be highly relevant with regard to a cover-up for which there was already lots of independent evidence. And people were already pleading guilty. So the only question was, in Howard Baker’s terms, what the president knew and when he knew it. And when the tapes were finally released, the answer was basically on June 18. I don’t think that’s likely to be repeated. But who knows what Michael Cohen has on Trump.
But what Trump wants to do, and is being quite successful at, is really radically revise immigration policy, radically revise our foreign policy, and that just doesn’t raise US versus Nixon sorts of questions. You have to look at cases like Boumediene [vs Bush] where Kennedy was the fifth vote, to say that non-US nationals confined at Guantanamo had rights. I cannot imagine that a Trump appointee would believe that any non-US nationals, especially if they’re not within the United States itself, have any rights that we’re bound to respect. And even those who are within the United States, I think they’re rights are going to be minimised almost to the vanishing point.
JV: I disagree here. What I’m referring to is the possibility that the current president might try to deny a subpoena that seems to directly go to domestic criminal activities. And I think the court has always used greater deference in cases like Korematsu. I’m not a fan of US versus Hawaii by any means. But my hope when that decision came down, and it may show that political scientists are more naive than law professors, my hope was that the court was keeping its powder dry. You let the president commend them for recognising his power, and presumably if there does come a time where it could actually wrongdoing, they would have a bit more credibility in saying, ‘Well, you won a couple, but now you’re not going to win this one’. I think one of the most disturbing things about president Trump was the comment that he made very shortly after becoming president – trying to denigrate a judge on the basis of Mexican heritage. I think it’s possible that the current justices appointed by Trump or others will keep that in the back of their minds. They’re sworn to uphold the Constitution like the president is. And there could come a point if it were needed, they would step in. Certainly Sandy is right, if we’re expecting salvation from the court, voters better think twice because we have our own obligations.
The issue I was trying to raise in terms of the integrity of democracy and the integrity of elections was partly what I’ve been seeing coming down in the decisions over the last few terms in terms of the issues of electoral integrity and around the issues of labour unions. Whatever the issues are, if they seem to be harming the Republican Party’s power base, they seem to be finding the legal reasoning to justify eliminating one more aspect or possibility of Republicans losing power. That might be a really naive way to look at it, but when I look at it from far away, I can say ‘You know, this looks a little fishy to me’.
SG: I was actually kicking myself for not mentioning voting rights. I think if you come at things from a Democrat or liberal perspective, the prospective for voting rights are looking very grim. This is a court that has already given a pass, in a decision on voted IDs that’s widely seen as a mistake even by the justices who decided it, that still there’s a lot of ferment that’s been going on in the lower courts, with those courts finding evidence, that I consider pretty strong evidence, of discriminatory intent. The Supreme Court has already been a block, and it’s only going to get worse. There is going to have to be, regardless of your political orientation, a lot of rethinking on the Democrat side on how they approach the court in the future. And another thing: far beyond the Trump Administration, is a massive clash in the future between a Democrat president and a Court that could turn out to be not just conservative, but very hardline conservative in the pursuit of a very rigid vision of the rule of law.
SL: These are extremely grim times. If you look at what’s happening to the judiciary, particularly in Hungary and Poland, two countries that Trump has expressed admiration for, and the US Ambassador to Germany, astoundingly, has basically attacked the government of Germany for not being conservative enough and has praised the conservative in Europe – and by conservatives, he’s not talking about Charles de Gaulle or the British Tories, he’s talking about Victor Orban in Hungary and the leader of the Polish neo-fascist party. The European Union right now is trying to decide whether to strip Poland of its vote because of its basic attacks on the rule of law. I agree with John. If Trump defies a subpoena, then courts might resist, but what we’re really talking about is a form of court-packing. That’s what is happening in Poland. And that is what the movement is out to do. And it’s perfectly constitutional, but it will transform the judiciary in very ominous ways.
JV: I don’t have the depth of comparative knowledge unfortunately that Sandy has on this, but one of the trends which is not necessarily a judicial trend, but one of the storm clouds you see in the Trump Administration is that he seems to have a proclivity for praising the kinds of people that we traditionally kept at arm’s length. Even during the coldest part of the Cold War, we sometimes sided with dictators but we didn’t tend to praise the Putin’s of the world, or the North Koreans, and the xenophobes and the racists, and that is very disturbing quite apart from the Court.
If I could say one thing about the voting rights: Among the most consequential cases of this term were the cases dealing with gerrymandering. I think that problems of gerrymandering are much more difficult to judges to resolve in a way that doesn’t start you back from scratch and it all becomes a little bit late to do it in time for an election, than some of the other problems. I’m not as down on the Court for those decisions as maybe some of the others.
This interview was originally aired on the Scholars’ Circle. To access our archive of episodes and download this interview click here.