The Supreme Court after Kennedy

July 19th, 2018

A significant, contentious vacancy

U.S. Supreme Court justice Anthony Kennedy, who has served in that role since 1988, recently informed President Trump he would retire effective July 31. In a letter to the president, Kennedy wrote about his “profound gratitude for having had the privilege to seek in each case how best to know, interpret and defend the Constitution and the laws that must always conform to its mandates and promises.”

Observers all along the political spectrum agree that whoever replaces Kennedy will almost certainly secure a consistently conservative, 5–4 majority on the controversial cases that come before the nation’s highest court. Should more seats become vacant during this administration, this majority would certainly expand.

The potential consequences of Kennedy’s retirement are vast and have sparked conflict long before confirmation hearings are scheduled for his replacement. A recent Reuters/Ipsos poll found that the Senate’s upcoming vote on a Supreme Court nominee makes 81 percent of Republicans more likely to vote for a Republican Senate candidate in this fall’s midterm elections and 90 percent of Democrats more likely to vote for a Democrat.

What will the Supreme Court look like after Justice Kennedy leaves? Not much different, say some analysts. “The fact is that a solid conservative is likely to be replaced by another solid conservative,” writes Republican political consultant Ed Rogers for The Washington Post. Although Kennedy has often been the court’s “swing” vote, meaning his vote decided cases in which his fellow justices found themselves evenly split down ideological lines, Rogers, citing The New York Times, notes that Kennedy voted with the late justice Antonin Scalia, a staunch conservative, 82 percent of the time. Rogers also sees “little chance of having five members on the court who will do anything to roll back substantive components of the laws that surround issues such as abortion and gay rights,” legal areas largely associated with the court’s liberal bloc.

Other experts, however, contend that a Kennedyless court could weaken or overturn precedents Kennedy previously upheld in these areas. The court found unduly restrictive state abortion laws unconstitutional in Roe v. Wade (1973), but Trump has publicly promised to appoint judges who oppose that decision. “There is a strong possibility that the Supreme Court will gradually chip away at Roe . . . by upholding various state restrictions that it might not uphold were Kennedy on the Court,” law professor Mark Kende told the website Vox.

Because Kennedy wrote the majority opinion in Obergefell v. Hodges, which made same-sex marriage legal nationwide in 2015, his retirement concerns many advocates of equal rights for gay and lesbian citizens. “I don’t think it’s too much of a leap,” lawyer Stacey Long Simmons of the National LGBTQ Task Force told The New York Times, “to anticipate . . . a 5–4 decision on some very key issues, whether it’s marriage protections or the tensions between religious beliefs and LGBT nondiscrimination protections or reproductive rights.”

In the near future, the court could also hear more cases involving labor questions, as it did in Janus v. AFSCME (a 5–4 ruling held that unions can’t force nonmembers to pay dues supporting collective bargaining), and reviews of presidential power, as in Trump v. Hawaii (another 5–4 ruling, upholding the administration’s travel ban).

Since 2010, the court has ruled unanimously in half its cases, and during its recently completed term, according to SCOTUSblog, it reached more unanimous decisions (28 cases, 39 percent of the docket) than 5–4 decisions (19 cases, 26 percent of the docket). No one can know ahead of time how the court will rule once its newest justice is seated, but rulings on high-profile issues will continue to attract close scrutiny.

Strategy or idolatry?

In the U.S. presidential election in 2016, 81 percent of white evangelicals and 56 percent of weekly churchgoers voted for Donald Trump, according to Pew Research. Many did so in hopes he could provide a solid conservative majority on the Supreme Court. As Ralph Reed, founder and chairman of the Faith & Freedom Coalition, tweeted after news of Kennedy’s retirement broke, “A strategy vindicated: Evangelicals & faithful Catholics backed Trump in part to gain SCOTUS (& other federal court) picks, starting w/ Neil Gorsuch [the first justice Trump appointed to the court, in 2017]. The strategy has worked.”

However, not all U.S. Christians, and not even all self-identified evangelicals, agree with this strategy. “Important issues are indeed at stake,” Christianity Today executive editor Andy Crouch wrote before the 2016 election. “But there is a point at which strategy becomes its own form of idolatry. . . . Strategy becomes idolatry . . . when we make alliances with those who seem to offer strength . . . at the expense of our dependence on God who judges all nations, and in defiance of God’s manifest concern for the stranger, the widow, the orphan and the oppressed. Strategy becomes idolatry when we betray our deepest values in pursuit of earthly influence.”

God has always called God’s people to speak, act and live as agents of holiness in a fallen world — a kingdom of priests and a holy nation (Exodus 19:6; 1 Peter 2:9), salt for the earth and light for the world (Matthew 5:13-16). Today’s Christians enjoy freedoms our forebears in faith could never have imagined, including the right to participate in a democratic political process.

But as debate over Justice Kennedy’s replacement continues, all Christians — whether they identify as liberal or conservative, evangelical or progressive, Democrat or Republican — may view this moment in the nation’s legal history as a chance to reflect prayerfully on this question: How much does America’s idea of justice — the fair, impartial, impassive judgment symbolized by the blindfolded woman holding a balanced pair of scales — align with God’s idea of justice — which, according to Scripture, is about not only treating people fairly but also making personal and social wrongs right (Isaiah 61:1-3; Amos 5:24; Matthew 25:31-46; James 2:8-13)?

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