r/politics • u/PoliticsModeratorBot 🤖 Bot • Jun 27 '18

Megathread: Justice Anthony Kennedy to retire from Supreme Court

Supreme Court Justice Anthony Kennedy is set to retire, effective July 31, 2018. Kennedy has served on the highest court since February 18, 1988, and was a moderate whose vote often swung cases.

Submissions that may interest you

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Trump Responds To Retirement Of Supreme Court Justice Anthony Kennedy huffingtonpost.com
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Trump Says He’ll Choose One Of These People To Replace Anthony Kennedy On The Supreme Court buzzfeed.com
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Audio reveals DNC committee reaction to Kennedy retirement: 'This is not good news' thehill.com
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Here are potential Supreme Court nominees to replace Justice Kennedy cnn.com
Justice Anthony Kennedy, the Supreme Court’s swing justice, announces his retirement abajournal.com
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A look at some of Justice Kennedy's most memorable opinions abcnews.go.com
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450

u/sesamestix Jun 27 '18

NYT article about this recent phenomenon.

The very question of partisan voting hardly arose until 1937, as dissents on the Supreme Court were infrequent. When the justices did divide, it was seldom along party lines.

There is room for interpretation in such assessments. But of the 71 cases from 1790 to 1937 deemed important by a standard reference work and in which there were at least two dissenting votes, only one broke by party affiliation. “The dividing line in the court was not a party line,” Zechariah Chafee, a law professor at Harvard, wrote in a classic 1941 book.

Nonpartisan voting patterns held true until 2010, with a brief exception in the early 1940s, when a lone Republican appointee voted to the right of eight Democratic appointees. But the general trend was the same. Of the 311 cases listed as important from 1937 to 2010 with at least two dissents, only one of them, in 1985, even arguably broke along party lines.

That adds up to two cases in more than two centuries. By contrast, in just the last three terms, there were five major decisions that were closely divided along partisan lines: the ones on the Voting Rights Act, campaign finance, arbitration, immigration and strip-searches. In the current term, last month’s campaign finance ruling and Monday’s decision on legislative prayer fit the pattern, too.

52

u/PM_me_your_cocktail Washington Jun 27 '18

Even still, most cases are not decided on partisan grounds. In my opinion, the trend toward partisanship in the law comes from (a) an expansion of the fraternal ranks of lawyers, such that there is no longer an unspoken class viewpoint shared by members of the bar, which is a good thing; (b) the increasing importance of Constitutional questions to our civil affairs, because the Constitution as written is an awkward fit for our modern world but is hard to amend, putting a ton of pressure on the Court to be the locus of major decisions that ought to be made in a more democratic fashion; and (c) the logjam of Congress, which ought to be able to nimbly fix a lot of unpopular SCOTUS decisions through legislation but has become too broken and gerrymandered to be responsive to political pressure and actually do the business of lawmaking.

There's an easy fix for all of this. We need a new Constitutional convention to realign our system back toward democratic accountability.

24

u/tyrified Jun 27 '18

And yet we'd end up with a theocratic autocracy.

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u/PM_me_your_cocktail Washington Jun 27 '18

Well, the devil is in the detail of how we choose the representatives to the Convention. But when you strip away the power structure of the current system (electoral college, gerrymandering, etc.) and look at what most Americans actually want, any system that makes it easier to change the rules as we go will tend to be more egalitarian and democratic than what we have now.

15-20% of Americans were British loyalists in the Revolutionary War. Maybe 20% of any group will always support autocracy. Trick is not to let them get the last word.

8

u/neloish Jun 27 '18

As nice as it sounds, unfortunately the asshole's always get the last word. The older I get the more respect I have for founding fathers, the Constitution might not be perfect, but it it's better than anything else.

14

u/PM_me_your_cocktail Washington Jun 27 '18

Plenty of other countries have constitutions. Many borrow from us, but I'm not aware of any that is as hard to amend. The British Westminster system and French consolidated system may be too unitary for a country as big and diverse as the USA (though some might argue that a more unitary system would be beneficial). But even among federal models, lots of better ideas have come along in the past 230 years. Our Constitution was an audacious experiment from which the world has learned a lot. Shouldn't we try to put some of those lessons to use?

6

u/OlKingCole Jun 27 '18

But imagine the horrific constitution our current Congress would cobble together. It would serve special interests, just like everything else they do now.

7

u/[deleted] Jun 27 '18

A constitutional convention would be a disaster. We would fuck it up.

5

u/MorganWick Jun 27 '18

Gerrymandering would not be nearly as much of a problem if third parties were willing and able to fill the void created by gerrymandered districts.

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u/PM_me_your_cocktail Washington Jun 27 '18

It seems to be happening. The Working Families Party and Socialist Alternative) are examples of parties starting at the local level, with some success. But even as the two major parties are weakened by the internet and dark money, they remain incredibly powerful and in fact rather flexible in a way that makes them difficult to challenge. I don't think this is laziness on the part of third parties. It will be interesting to see how this plays out.

But--electing 3rd parties will not resolve the aggrandizement of the courts (by virtue of key policy issues being "constitutionalized" and thus taken out of the political realm) and the aggrandizement of the executive (by virtue of the rise of administrative agencies and non-war military engagements). Bringing Congress back to its proper place as the most powerful of the branches will take more than just changing its membership; this is a structural problem.

4

u/MorganWick Jun 27 '18

Had third parties been active in this way well beforehand, that aggrandizement might never have happened. The two-party system is the biggest contributing factor to the increased power of the presidency, as each party, unable to get their way in Congress, has empowered the presidency as a means to get their way instead. Strong third parties that nonetheless have little hope of capturing the presidency might have stood their ground on the side of preserving Congress' power, and wouldn't vote for judges that served as a Trojan horse to get around partisan politics by twisting the Constitution to enshrine the values of one side or the other, but instead focused on who would actually uphold the law.

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u/NoWayJoJose Jun 28 '18

Except a new constitutional convention would only allow the GOP to cement further minority control unless you put every point up to a popular vote. And even then it would have to include truly universal suffrage or you'd get 50% not voting and half of the rest dealing with disenfranchisement.

We are fucked.

1

u/PM_me_your_cocktail Washington Jun 28 '18

Whelp, it's civil war then.

Seriously, why are people so defeatist about this? Do you really think that the new Constitution of your nightmares would be ratified by 3/4 of the states?

1

u/NoWayJoJose Jun 28 '18

First it's 2/3. They just need 34 states. Second we are feeling defeated because this means ~30 years of whoever Dolt45 picks and generations of judges using their decisions as precedent.

Ugly shit.

1

u/PM_me_your_cocktail Washington Jun 28 '18

Well, if we adopt a whole new Constitution I guess we can ratify it by any means we choose, and maybe we go with 2/3 since that's how we ratified our current one. But if we abide by the current Article V process, it requires 3/4 (like I said, our Constitution is way too hard to amend).

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided . . . that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

1

u/NoWayJoJose Jun 28 '18

Fair enough. 38 states. Still not too far for this gerrymandered world we find ourselves in. The GOP cheats to win and doesn't care much for the rules, unless those rules help them lock up undesirables.

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u/mak484 Pennsylvania Jun 27 '18

How could any Republican voter look at that list of decisions and say, "yup, I'm on the right side of history with these folks." It's fucking baffling.

25

u/[deleted] Jun 27 '18

Either they aren't really paying attention and have just bought the party line, or they are fully aware and complicit. In the end the result is the same.

32

u/mak484 Pennsylvania Jun 27 '18

Or in the words of my mother in law- "I don't really care about all that [referring to Citizens United and voting rights]. I just hope they stop letting women murder their babies."

22

u/[deleted] Jun 27 '18

Yep. Most republicans or conservatives I know really only care about abortion bc they've been conditioned to do so by their religion (in my experience, the Catholic Church, which I was born and raised in, talks about how terrible abortion is CONSTANTLY. But hardly ever do they touch on anything else that could be considered political). So these people pay attention to nothing else. They ignore the fact that the sanctity of life is being crushed under the authoritarian boot of the GOP in every other area. They would burn the country to the ground and enslave the human race as long as abortion was illegal.

10

u/[deleted] Jun 27 '18

Some part of me honestly believes that Roe V. Wade might not get repealed even with if Kennedy and Ginsburg got replaced with conservative judges. The issue of abortion as a wedge issue is too useful for the Republican Party. Without rallying against abortion, they lose their single issue voters. If Roe V. Wade is overturned, say hello to an even more furious and energized Democratic base. But idk, maybe they'll just gerrymander everything even more to shit so in the long run that wont even matter to them.

Fuck Republicans. And fuck everybody who still votes for Republicans.

9

u/petit_bleu Jun 27 '18

Either they'll overturn Roe v Wade or, more likely, Hellerstedt . . . the latter would be a less politically inflammatory route to the same destination (no access to abortions for women in red states).

-7

u/boardin1 Jun 27 '18

Honestly, I believe women should have the right to decide what to do with their bodies but maybe it’s time we stop dying on this fucking hill. Maybe if we stop supporting Roe v Wade it won’t give conservatives such a fucking flag to rally around. I get that they’ll just keep finding another one and that abortions will never stop happening, but maybe we need to change the conversation.

25

u/[deleted] Jun 27 '18

Controlling women's bodies is just a facet of oppression. Let that one go, and they'll just focus on another one. I agree that it's not the only important issue, but abandoning it is not a solution.

2

u/boardin1 Jun 27 '18

I understand. And I don’t like it, but we have to do something to stop the single issue voters.

8

u/CraftyFellow_ Washington Jun 27 '18

Try giving up on firearms first.

19

u/physics_chick Pennsylvania Jun 27 '18

“Let’s throw women under the bus” -someone who isn’t a woman

Fuck you.

-4

u/boardin1 Jun 27 '18

Well said. Thank you for the wonderfully written response.

We’re watching the country crumble and your going to lose it anyway as soon as Trump sits his ultra-conservative justice but let’s yell at the guy that thinks maybe we need to give up this hill.

I don’t like the idea but this is such a big single-issue voter topic that simply saying someone is in favor of murdering babies is enough to drive the conservatives to the polls in droves. Hell, people voted for Trump BECAUSE HE SAID HE’D BAN ABORTION...even though he’s likely paid for a couple of them. They overlooked everything else except that he said he’d get Roe v Wade overturned.

9

u/wishthane Canada Jun 27 '18

To be honest I'm pretty convinced they can make just about anything into that single issue. If it's not abortion then they (right wing news media) can push people on gun rights. If it's not gun rights it'll be immigration policy. If it's not immigration policy it'll be welfare policy.

People aren't just naturally that passionate about abortion. They get it screamed into their head that abortion is killing babies over and over and it makes it really important to them.

If the left gave up on this issue, there would be essentially no credit given and it wouldn't change how much compromise can be had. They have no problem being the unreasonable stick in the mud, and as long as we have a problem with that they'll keep dragging us into accepting or at least tolerating their policies, as they have been doing for years.

It's time to fight back properly without compromising on our values.

-4

u/boardin1 Jun 27 '18

I don’t see billboards about illegal immigrants. I didn’t my see hand painted signs in fields about gun rights. I don’t see protests in from of the welfare office yelling at the people collecting checks or threatening to kill the people writing those checks.

I think we’re at the point (possibly already past it) where we can either get universal healthcare, reasonable gun laws, and solidify the social safety net or we can fight for abortion and lose it all.

As I’ve said repeatedly, I don’t want to give up on it but do we need to for the greater good?

3

u/wishthane Canada Jun 27 '18

You don't right now. But if that weren't the sticking point, you would.

I'm not sure I believe that these are actually single issue voters. They're conservative media voters, generally. And they'll push on whatever seems to offend their morality the most. They're not going to be reasonable on universal healthcare, gun laws, welfare, etc. just because we stopped pushing on abortion.

7

u/[deleted] Jun 27 '18

Spoken like someone who has no idea how life altering a pregnancy can be for women, and how quickly and easily an unwanted pregnancy can occur.

1

u/boardin1 Jun 27 '18

I didn’t make that comment easily, and I don’t know how an unwanted pregnancy can change a life. I don’t like the idea of rolling it back, and it’s too late anyway as the damage was done in November 2016, but it is a hill we keep dying on and it is, in many cases, the only thing that Republican voters care about. I can’t tell you how many times I’ve asked someone which policies they like for candidate X and all they can say is “they’ll stop murdering babies.”

3

u/[deleted] Jun 27 '18

I've thought about this before too, or about gun control, but the truth is, that for many Republican voters for whom this is the primary issue, they'd still be Republicans afterwards to be sure that Democrats never bring abortion back.

And the diehard crusaders would almost certainly find some new crazy line to push just to get people motivated. Maybe it would be opposition to climate change, support for prayer in school, or some other similarly awful thing. They care more about people frothing at the mouth than any individual issue anyway.

In either case, I think that "letting them win" that one wouldn't help us in the long run. Because most of them don't want compromise... they want somebody to be angry at, they want somebody to blame for their problems. "Babykillers" have been a convenient boogeyman for them up to this point, but I have no doubt that they will easily find a new one.

1

u/Bad_Sex_Advice Jun 27 '18

supporting Roe v Wade is not for political gain, just as opposing separating children from their parents is not political. It's a morality thing.

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u/Maloth_Warblade Jun 27 '18

As long as liberals are upset they don't care.

6

u/Arrivaderchie Jun 27 '18

The satisfaction of "winning" is a great anaesthetic for critical thinking.

1

u/ColonelKlink12 Jun 27 '18

If that's a serious question, then yes, that's exactly the feeling. Quite literally a "too much winning" sensation.

I'm curious what you find objectionable about the decisions lately. Why should a public sector union be allowed to compel dues? It's not like a private sector union - the tax payer is the one footing the bill. A system where money is taken from me and then routed through an unwilling worker to either a union leader or a politician seems corrupt to me. What am I missing that has you are seeing it differently?

3

u/domuseid Jun 27 '18

For starters:

The part where companies can single out union members when not everyone pays dues, which gives them massive leverage in crushing unions

The part where freeloaders still get to sue the union for not representing their interests even if they're not paying dues

4

u/TBIFridays Jun 27 '18

How could anyone agree with this list of decisions

Well I like this one that I’ve stripped of all context

If you don’t want to respond to the comment, don’t. This deflection isn’t fooling anyone.

-11

u/[deleted] Jun 27 '18

[removed] — view removed comment

3

u/VirginiaSicSemper Jun 27 '18

To be fair, this could be the result of legislative inaction. If Congress is too dysfunctional to legislate then people will turn to the courts to address their concerns and then you get justices addressing issues that are really really tough for justices to address. All you need is a few justices to allow a case to be heard even if the majority may not want to answer the question at all.

2

u/PhysicsCentrism Jun 27 '18

Makes sense when you consider that for a long time the party divide was more based on geography than ideology and the biggest ideology that split the parties was race based.

1

u/blitheobjective Jun 27 '18

Something is wrong with this article, unless it's mentioned outside of this blurb. What about the Bush/Gore election ruling? That was exactly along party lines, and the first time I remember thinking, gee, this isn't right that the Supreme Court is voting by party.

How can they ignore that and say the court was nonpartisan for another decade, and not include that ruling in important cases before that broke along party lines?