US Supreme Court Justice Anthony Kennedy made headlines when he decided to step down from the court after its final decisions of 2018 were announced. President Trump weighed in on who might replace Kennedy, and when…
— Donald J. Trump (@realDonaldTrump) June 27, 2018
…but lost in Kennedy’s retirement news and the SCOTUS decisions was the direction the court took when rebutting the appeals courts. Justice Kennedy himself took the state of California to task when the court struck down a California law on pregnancy crisis centers and abortion information:
The high court struck down California’s law requiring all pregnancy crisis centers post information on abortion in their facilities, which was challenged on behalf of centers owned and operated by those who oppose abortion.
While Supreme Court Justice Clarence Thomas wrote the decision which was handed down, Justice Anthony Kennedy (often considered a “swing vote” on the 9 person court which holds 4 reliable liberal votes and 4 mostly reliable conservative votes) wrote in his concurring decision a scathing rebuttal to the State of California offering its own “congratulatory statement” of a “legacy of ‘forward thinking'” as part of the state’s official history.
Kennedy wrote in his concurring decision, “it is not forward thinking to force individuals to ‘be an instrument for fostering public adherence to an ideological point of view [they] find unacceptable.” Kennedy then added,” It is forward thinking to begin by reading the First Amendment…understand the history of authoritarian governments as the Founders then knew it…how relentless authoritarian regimes are in their attempts to stifle free speech.”
And in striking down a Ninth Circuit ruling against President Trump’s travel ban, Justice Clarence Thomas directly took on the practice of the California-based appeals circuit’s “activist rulings” – and effectively threatened the court’s practice of such conduct:
Justice Thomas concurs in Trump v. Hawaii to throw cold water on growing practice of district courts imposing nationwide injunctions and says "[i]f their popularity continues, this Court must address their legality.". pic.twitter.com/fKqwsTryWo
— John Elwood (@johnpelwood) June 26, 2018
Merits aside, I write separately to address the remedy that the plaintiffs sought and obtained in this case. The District Court imposed an injunction that barred the Government from enforcing the President’s Proclamation against anyone, not just the plaintiffs. Injunctions that prohibit the Executive Branch from applying a law or policy against anyone—often called “universal” or “nationwide” injunctions—have become increasingly common.
District courts, including the one here, have begun imposing universal injunctions without considering their authority to grant such sweeping relief. These injunctions are beginning to take a toll on the federal court system— preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.
I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.
The irony of this should not be lost on anyone – liberal judges, angered with Trump’s executive actions (and ignorant of the fact that Obama wielded executive authority in an even more heavy-handed manner), have impulsively used activist rulings to circumvent executive authority. However, their actions will likely only lead to SCOTUS codifying even more power in the executive branch.
SCOTUS is putting America on a dangerous path, by setting the long-term precedent of a judiciary that enables the executive branch’s overreaching authority. While this may seem good for conservatives on a short to medium-term basis, they will undoubtedly cry foul when the Presidency is in liberal hands.
Justice Kennedy's Swing Votes
•1992: Reaffirms Roe v. Wade
•2000: Upholds ban on openly gay leaders in Boy Scouts
•2010: Eases limits on campaign spending by corporations
•2015: Establishes right to same-sex marriage
•2018: Upholds travel ban 3.0 pic.twitter.com/RfclOr9tOU
— Fox News Research (@FoxNewsResearch) June 27, 2018
With Kennedy’s retirement, the court will likely solidify a slight conservative majority which had Kennedy as the deciding vote in a number of 5-4 decisions that ruled against conservatives. Unless… whoever replaces him is also a swing vote.
Since SCOTUS will now more than ever become the last and possibly only line of defense against the conduct of the executive branch, the FMShooter team has assembled brief bios of the bookie favorites, using Predictit instead of Betfair, which does not have markets yet for the next SCOTUS justice.
Most likely is DC Circuit Judge Brett Kavanaugh:
- Sits on the DC Circuit which is the minor leagues of the SCOTUS
- 53 years old
- Staunchly conservative, having worked a legal counsel for Bush 43
- Clerked for Justice Kennedy (sort of a passing of the torch idea)
3rd Circuit Judge Thomas Hardiman:
- Was the finalist along with Gorsuch to replace Scalia – Considered a strong Originalist
- 52 years old
- Strongly Pro-2A (concurred with DC. v Heller that the Right to Self-Defense is self evident, no need to demonstrate a claim to get a gun)
- Negative: Worked with a pro-immigration group in DC, has ruled in their favor before
6th Circuit Judge Raymond Kethledge:
- 6th Circuit, representing many Rust Belt states
- 51 years old
- Wrote a unanimous decision that excoriated the IRS during their targeting scandal
- Wrote the decision which upheld a Michigan law barring public-school employers from using their resources to collect union dues (very timely given today)
7th Circuit Judge Amy Barrett:
- Famous for Feinstein questioning her Catholic faith in her hearing
- “It is chilling to hear from a United States Senator that this [Catholic faith] might now disqualify someone from service as a federal judge. I ask you and your colleagues to respect those in whom ‘dogma lives loudly’—which is a condition we call faith.”
- 45 year old woman
- From Indiana, serves the 7th Circuit (another Midwest Circuit)
Of the lot, Kavanaugh looks like the favorite for the job. Without question, conservatives do not want another “swing vote” like Kennedy on the bench, so Trump’s decision is more important than ever.
The rulings of activist judges will likely end up neutering the judiciary’s power in the moments that it will actually be needed – so it is more important than ever that Trump’s replacement for Kennedy is a top-tier judge who will defend gun rights as well as all conservative value and principles. Sadly, it took the “nuclear option” to advance Judge Gorsuch to the high court…
…but even with enough votes to get a nominee confirmed, who knows what kind of tricks the Democratic party has up their sleeve to derail another SCOTUS nominee.