The sound you hear is the heads of the progressives exploding on the news that Justice Anthony Kennedy is retiring from the Supreme Court as of July 31st. This gives President Trump his second appointment in less than two years. Though Kennedy was a Republican appointee and considered by many to be a relatively conservative jurist, he was the man in the middle in many key cases – the swing vote, as they called it.
Assuming that Trump selects from the list of possible nominees that he released even before is Inauguration – a list provided by the conservative Federalist Society – we can expect the nominee to be in the tradition of Neil Gorsuch and the late-Antonin Scalia.
Although there were many reasons for me to wince when I voted for Trump against the increasingly left-wing platform of the Democratic Party, one of the major considerations was the Supreme Court. Like many conservatives, I understood that a Democrat president would not nominate conservative justices in the tradition of Antonin Scalia – and that a future president would likely have the opportunity to place up to three judges on the Court. Like many voters, I had to decide if I wanted Donald Trump or Hillary Clinton to make those appointments. It would have meant the end of a constitutional-based Court, and that for the rest of my lifetime and the lifetime of my children, we would have a very liberal activist Supreme Court.
While it generated a lot of hisses and boos from out there in the political left field, I was glad that Senate Majority Leader Mitch McConnell and the Republican majority played hardball and preserved the nomination for the incoming president. It seemed ironic that all the caterwauling came from a party known for playing political hardball. I have no doubt they would have done the same if the situation was reversed.
Today, the left is screaming to hold up the appointment until after the November election – or even the seating of the new Congress. Noting that McConnell used his power to block the Obama appointment in an election year, they call the Senate Majority Leader a hypocrite for calling for a quick confirmation now. Perhaps he is just a political pragmatist. Of course, the Democrats who demanded a speedy confirmation for the Obama appointment are now calling for the delay – no less a hypocrisy than they level at McConnell.
I was pleasantly surprised early on by President Trump’s list of potential nominees and his initial selection of Gorsuch. I must admit that I was a bit wary that the old New York Democrat was still lurking within Trump. We conservatives can now hope the Kennedy replacement will join the Court as a solid conservative member unlikely to take up the role of casting the swing vote.
This could put Trump in line for yet another appointment. With a five to four solid conservative majority, the four liberals are not like to carry the day in too many cases – and almost none of great significance. This could have the 85-year-old Justice Ginsberg decide that her continued service on the Court can have no value to the cause. She could retire in the next year or two.
On the other hand, she has a very strong disdain for Trump and may rather fight against age and finality just to prevent him from filling her seat. A second term for Trump would likely give him that third appointment. Ginsberg’s departure would leave 79-year-old Justice Stephen Breyer as the oldest remaining liberal on the court. He could easily survive Trump’s first term, but a second would put him at 85 in 2024. The remainder of the liberal wing, Justices Sonia Sotomayor and Elena Kagen, are young enough to serve for years or even decades to come – but it could be a very lonely loft for them.
The conservative trend of the Court in recent years has had an already positive impact on the conservative agenda.
In a series of decisions, the Court has done more to restore, personal freedom, constitutionality and common sense to our republic than any time since Brown v. the Kansas Board of Education ended school segregation.
In terms of immediate political implication and application, the most important decision by the Court was Trump v. Hawaii, which reversed a lower court’s decision to block President Trump’s Executive Order temporarily banning the admission of residents from seven unstable or adversarial nations – with the possibility of individual waivers in some special cases. The ban included Syria, Iran, Yemen, Libya, Somalia, North Korea and Venezuela. The five Muslim-majority nations were from a list that the Obama administration deemed to pose security threats to the United States due to the presence of terrorist organizations, unstable governments and poor vetting procedures.
The debate centered on whether Trump’s flamboyant campaign rhetoric – intemperately suggesting a broad religious ban on all Muslims — was more relevant than the actual language of the Executive Order. Since the ban only applied to residents of five Muslim-majority nations and did not affect the millions of Muslims in 42 other Muslim-majority nations, it could hardly be considered a Muslim ban as the critics alleged. In addition, it involved all citizens from the banned nations – which would include non-Muslims as well.
Trump adversaries lost the argument on the Constitution, law and common sense. Their position was purely anecdotal and political. They simply wanted to strip a president they despise of power and reputation. The Court very wisely and properly based its decision on the law and the established right of a president, any president, to manage immigration in matters of national security. Justice Kennedy was key to that vote.
This was a “yuge” win for Trump. Not only does it enable him to maintain the travel ban, but it clarifies his powers in terms of immigration – and that could have wide ranging implications on government policy along the southern border.
In Janus v. AFSCME, the Court made another common sense decision based on our constitutional rights. In this case, the American Federal of State, County and Municipal Employees (AFSCME) union had been allowed to charge those who refused to join the union a fee to compensate for the loss of membership dues. This was a huge money maker for the union, which spends most of its political resources on Democrat campaigns.
For sure, this is a significant blow to the power of the unions, but the financial clout the unions enjoyed was an untoward benefit in the first place. One of the main rights delineated in the Constitution is the right of assembly. And just as we have a right to join in membership of any legal organization, or gather informally on a street corner, or participate in a public protest, we have an equally important right to not be forced to assemble against our will. The Court saw through the ruse of referring to the confiscation of non-union workers’ money as a fee.
In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court upheld the rights of those with religious convictions. In recognizing the right of a confectioner to refuse to provide a cake for a gay wedding, it took no rights away from gay couples, who have innumerable places to obtain the cake of their heart’s desire.
The Court protected our privacy in the digital age in Carpenter v. United States. It declared that police departments could not use our phones to track our travels or procure information from your phone without a court order.
We should be ever thankful that the Court is now in the majority hands of texturists and strict constructionists who believe in the meaning of the Constitution and the letter of the law – justices who believe that it is their role to defend meaning rather than making law by judicial decree. The current Supreme Court is properly reluctant to trample on the powers of the other two branches.
With the appointment of Kennedy’s replacement, we have every reason to believe that the conservative judicial philosophy will characterize the Supreme Court for decades to come. Gorsuch and the new justice will have completely vindicated my vote for Trump.
To my friends on the radical left: I know how sad and depressed I would be if Clinton had been able to fill these vacancies. It would have aroused in me a great fear for the future of the nation I love. In that regard, I can empathize with your feelings of despair. My sympathy for your grief is only eased by a single thought. Better you than me.