A term of the U.S. Supreme Court begins on the first Monday in October each year and it typically continues until some point in late June or early July, when the Justices leave town for their summer break.
The mostly hotly contested decisions are often decided last, which apparently gives the Justices adequate time for the carefully crafted opinions on those cases, aiming for the history books. So the end of the term becomes a dramatic time for legal headlines. Indeed, during those final weeks, the morning of “opinion Monday” becomes an event, with scholars, reporters, parties, and some of the merely curious keeping an eye on a screen to see if the latest blockbuster case has come down yet.
Sometimes adding to the drama, springtime speculation is common, about whether one of the older Justices on the court will use the final day of the term to announce his retirement. Last spring, such speculation centered on Justice Anthony Kennedy, a swing vote in many closely decided cases, who was then 80.
A Kennedy departure would give President Trump a chance to put his own stamp on the jurisprudence of the high court in a way that replacing the late Antonin Scalia did not. In Scalia’s case, Trump replaced a solidly conservative Justice with a new Justice who is also expected to be solidly conservative. In Kennedy’s case, Trump could presumably replace a swing vote, often but not reliably conservative on politically sensitive cases. Kennedy not only voted to give constitutional status to the marriage of homosexuals, he wrote the court’s opinion in that case, Obergefell v. Hodges (2013).
Despite all the speculation, Kennedy (a Ronald Reagan nominee) did not retire last summer.
This spring, the speculation about a Kennedy retirement announcement at the end of term has returned.
In what may be a related development, the Supreme Court quite recently (on Monday, May 21) decided Epic Systems v. Lewis, much-watched litigation over arbitration agreements. The majority opinion confirmed the ability of corporate management to use arbitration agreements to ensure that many controversies will be settled by individualized proceedings, thus avoiding class actions. This was a classic ideological case, a win for the right against the left.
Kennedy did not write an opinion, but his vote was on the winning side. So bringing in a more consistent right-winger in Kennedy’s stead would not change the outcome of an Epic Systems rematch but it might, from the rightists’ point of view, make the captured legal territory here more secure.
Right Wing View
Indeed, as his vote in Epic Systems may remind us, Kennedy still has conservative instincts, however much he may have infuriated fellow conservatives on particular key votes. As Jeffrey Toobin observed, writing about Kennedy in The New Yorker more than a decade ago, “Kennedy continues to oppose racial preferences and to argue for expansive Presidential powers” and he was a principal author of Bush v. Gore (2000).
There are at least three points to make about rightward reaction to the state of SCOTUS and the Kennedy speculation. First, there is the matter of what conservatives think of Kennedy in general Second, there is what they think of the prospect of a Trump appointee. Finally, we should be explicit about what they think of Epic Systems.
On the first of those points: conservative blogger Gary Demar writes, “There’s talk that Justice Anthony Kennedy may retire from the Supreme Court. I say, good riddance.” Demar doesn’t even mention the question of who would replace Kennedy. His column on the subject of a Kennedy departure is almost entirely devoted to the moral catastrophe is sees in the Obergefell case.
Likewise, Ron Dreyer, writing in The American Conservative not long ago, expressed a quite negative view of Kennedy, although he harkened back to an earlier opinion of this Justice’s to make the point: a 1992 opinion on abortion. Dreyer quoted the 1992 opinion thus: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” In Dreyer’s view, this attitude makes it impossible to see loons as loons, deviants as deviants. They must all be celebrated as expressions of liberty.
Kimberly Ross, writing in the news blog Red State, recently expressed satisfaction with the idea that President Trump will soon nominate a successor to Kennedy. Ross has Roe v. Wade in mind in this connection. She wrote that Kennedy “has been friendly to the pro-abortion community” and this is unfortunate, but “a committed pro-life Justice, appointed by Trump” in his stead, could have a great impact.
As to the Epic Systems decision, conservatives are as one would expect happy with it and believe Gorsuch’s majority opinion vindicates Trump’s choice of Gorsuch as a replacement for Scalia. Walter Olson — best known as the intellectual guru of rightward visions of tort law reform — is one of those happy about the freedom-of-contract implications of this employment-law case. He says, and tweets, as much.
Likewise, Akash Chougule, director of public policy of “Americans for Prosperity,” tweets that the Epic Systems opinion protects “the rights of free contract from overzealous attorneys and trade unions,” a great example of why “constitutionalist jurists matter.”
Left Wing View
We will consider the same three interrelated points under this heading that we did under the last one. That is: what the left thinks of Justice Kennedy; what it thinks of the prospect of a Trump appointee should Kennedy resign; what it thinks of the Epic Systems decision. This time, for the sake of variety, let us reverse the order.
Liberals have been busy castigating Epic Systems. Sean Carrigan, on twitter, puts the general reaction with concision: “We can track the boom in wage disparity from the 1970s, when we began stripping bargaining power from unions. This week’s SCOTUS decision is a continuation of that trend, and will push workers’ rights back to industrial revolution levels if Congress doesn’t act.”
NELP, the National Employment Law Project, likewise tweets that this decision is “a huge blow to workers’ right to band together to challenge employer misconduct.”
In their lamentations about any prospect of a Trump appointment, liberals are singing in unison. This comes up, for example, in the context of Jeff Flake’s effort to set himself apart from Trump and Trump’s loyalists. Here: https://twitter.com/Buckleup36/status/1000768694610513920
Another liberal says that Trump’s judicial appointments are causing her to lose faith that the American system has the resources to correct course: :https://twitter.com/lynnv378/status/998906244902469632
Ian Millhiser says this: https://twitter.com/imillhiser/status/1000022713078026242
Finally: what do liberals think of Kennedy? Many liberals/leftists dislike his jurisprudence, some quite intensely. He was the author, after all, of the Citizens United decision in 2010, which on first amendment grounds struck down many federal and state limits on “electioneering communications,” a decision that many on the left revile as a confirmation of Big Money’s dominance of US politics.
On the other hand, as one might expect, liberals are admirers of Kennedy’s gay-marriage opinion. Slate’s Jordan Weissmann goes so far as to say that he “teared up” reading it, because it contains “one of the most beautiful passages you’ll likely read in a court case.”