We are about to experience a defining moment in the Trump presidency and the preservation of constitutional government in this country. This is made possible by the retirement of U.S. Supreme Court Justice Anthony Kennedy, announced this week.
Justice Kennedy was often described as a "swing justice" on the Court, meaning that he sometimes sided with the conservatives and sometimes sided with liberals.
Justice Elena Kagan, when she was Dean of the Harvard Law School, praising Kennedy at a ceremony in his honor, quite correctly observed that he adhered to no consistent judicial philosophy. She meant it as praise, but those of us who believe in the rule of law would have to differ with that assessment.
The problem with Kennedy’s jurisprudence, and that of his predecessor "swing justice" Sandra Day O’Conner, was the arbitrary nature of what they did.
Following the rules laid down is what a judge or a justice is supposed to do, but when Kennedy and O’Connor rewrote the constitutional rules regarding abortion and gay marriage, for example, they were doing something different.
They were engaging in politics — or policy — rather than the law.
If you believe the mainstream media and the Democrats, a second Trump nomination to the Supreme Court is nothing less than a fatal threat to the republic, because, presumably, it would put at risk basic rights celebrated by the left, for example — the purported right to abortion on demand.
This is overheated rhetoric of the worst sort.
First of all, it is highly unlikely that the Supreme Court, even with a more conservative replacement for Justice Kennedy, would overturn Roe v. Wade 410 U.S. 959 (1973), the extraordinary decision arbitrarily making abortion a protected right under the U.S. Constitution.
It's even exceptionally unlikely that the equally arbitrary Kennedy opinion finding a right to same-sex marriage in the federal Constitution, would be reversed.
The current Chief Justice, John Roberts, has signaled that he wants to keep the court out of political controversy, whenever possible (as he did by his vote salvaging Obamacare), and he would not be the fifth vote for what the mainstream media would perceive as such a reactionary strike.
The left will seek to stir up its base for the 2018 elections by claiming that a judicial counter-revolution is in the offing. This is not going to happen.
Still, it's likely that with a real constitutionalist replacing Kennedy, the court will allow the states greater freedom to impose restrictions on abortion, in order to protect incipient life.
Indeed, just as this term’s Masterpiece Bakeshop v. Colorado decision suggested, a court with another Trump justice could be expected to protect religious rights over conformity to political correctness. This is appropriate, and returning the Constitution to a point where most matters of domestic law are handled by governments closer to the people (the states) is also the right thing to do in our republic of a federal government of limited and enumerated powers.
It is this struggle for the renewal of federalism, of a government of dual state and federal sovereignty, with a more limited federal presence in national life, that really lies behind our exacerbated political battles. Rarely noticed is the fact that President Trump is a champion of such federalism. It is more than symbolic that he has cooperated with the Federalist Society for Law and Public Policy — an association of lawyers and law students committed to a traditional understanding of the Constitution — in picking judges.
It was that strand of candidate Trump’s campaign that won over the select few of us in the legal academy who supported him. It is also the reason that increasing numbers of Republicans and conservatives find themselves among his backers.
The proponents of the federal leviathan, the denizens of the deep state and their allies in the mainstream media and the Democratic Party, can be expected to launch a vicious assault on whoever Trump nominates to the high court , and on Trump himself, because they do understand that a return to the true meaning of the Constitution is inconsistent with what they believe, and with their continuing power and influence.
We are seeing the first signs of this in Sen. Chuck Schumer’s invocation of the Biden Rule, which then-Sen. Joseph Biden, D-Del., offered to prevent a Republican president from promoting a nomination close to a presidential election. The transparent error in confusing the upcoming congressional election with a presidential one could not be clearer.
Some on the right have, with some justification, gloated over Kennedy’s exit.
In a remarkable editorial "Good Riddance, Justice Kennedy," the editors of the National Review write, "No justice, right or left, was more willing to substitute his judgment for that of elected officials and voters. No justice was less willing to tie himself down to clear rules or a legal philosophy that would constrain him in future cases, let alone rules or a philosophy that bore a plausible relation to the Constitution."
In this last term, however, Kennedy returned to his conservative and federalist roots in a laudable manner, and President Trump and his supporters at least owe the mercurial jurist thanks for the felicitous timing of his retirement.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was recently appointed as a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.
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