In retrospect, Justice Anthony Kennedy had been telegraphing his imminent departure all term.
The court effectively punted on several big cases, ruling on narrow, technical grounds rather than making sweeping decisions. Partisan gerrymandering went back to the lower courts on a standing issue. The case of the anti-gay baker in Colorado was reversed largely because of hostile comments the state’s Civil Rights Commission made about the baker’s religious faith, not necessarily because religious people have a blanket right to discriminate against gay people (though the scope of that ruling will be tested). Even the travel ban was upheld because the court found that the Trump administration, on the third try, had sufficiently watered it down to make it no longer explicitly a Muslim ban, no matter the president’s bigoted statements.
Kennedy, a Reagan appointee who had become the court’s swing vote, especially on hot-button issues like abortion and gay rights, over his thirty years on the bench, had a chance to stand up for democratic fairness and marginalized populations, but he declined.
There were, as there are every term, judgments that will reverberate for decades—and in this term, not in a good way: the Janus ruling, which will eviscerate public sector unions (already the last stronghold of organized labor), and a decision allowing Ohio to purge its voter rolls of people who don’t vote often enough, which was decried by civil rights and voting rights advocates, both 5–4 splits.
But the most consequential decision of all, of course, was Kennedy’s retirement, announced soon after the court adjourned for the summer. On Monday night, Donald Trump unveiled his choice for Kennedy’s replacement—the ultra-conservative Brett Kavanaugh, Trump’s second Supreme Court pick to the court in as many years (as many as President Obama got over eight years). And while Trump’s administration is a torrent of scandal wrapped in mendacity ensconced in a dumpster fire of ineptitude that could be brought to a merciful end in two and a half years, his reconfigured Supreme Court—engineered by the Federalist Society to placate his right-wing base—will hold sway over all facets of American life for a generation.
Recognize this for what it is: the conservative endgame. The more politically sophisticated members of the religious and free-market right are willing to put up with a lot of Trump's bullshit in exchange for what they deem to be solid Supreme Court picks. Sure, the rubes at the MAGA rallies may actually care about building the wall or locking her up or starting a trade war or throwing toddlers in kiddie concentrations camps, but for the elites who know better, who are actively exploiting the rubes for their own purposes, this is it.
Give Trump two (or, better yet, three, should a liberal justice’s health fail) court picks and then, fine, let Robert Mueller do his thing. They’ll have gotten what they wanted out of the Faustian bargain. There’s a reason Mitch McConnell obliterated Senate norms to deprive Obama of even a hearing on Merrick Garland, holding a Supreme Court seat open a full year to allow a Republican successor to have it. The ends justify the means.
In short, this is the only thing holding the elite level of pro-Trump conservatism together. (For the rabble, it’s authoritarianism mixed with a penetrating fear of diminishing white, Christian, patriarchal privilege, according to multiple studies.) And that’s why you have the Koch brothers, who despise Trump especially on issues like tariffs and immigration, gearing up to spend millions on behalf of his Supreme Court nominee.
It’s not just the obvious issues like abortion and gay marriage. Of course, those things will be under immediate threat. Is the gay marriage ruling imperiled? Perhaps. But more likely, conservative states will try to chip away at LGBTQ rights, allowing more and more leeway for people to discriminate under the guise of religious freedom.
How about Roe v. Wade? That’s in a more precarious spot, even though it has 2–1 support, according to Quinnipiac. In his 2006 confirmation hearing to the D.C. Circuit Court of Appeals, Kavanaugh promised to “follow Roe v. Wade faithfully and fully.” But last year, he sided with the Trump administration when it wanted to deny a seventeen-year-old in immigration detention access to an abortion, a decision that was overruled; responding bitterly to that decision, he wrote that the government “has permissible interests in favoring fetal life.”
Here again, a frontal assault seems less likely than a sneak attack—a conservative state passing draconian restrictions that, for instance, force all abortion clinics to close or ban abortions after a fetal heartbeat is detected. Kavanaugh, who believes in the government “favoring fetal life,” would likely join the majority in upholding that law. Roe wouldn’t be overturned, but it would be dead nonetheless.
There’s another big issue specific to Kavanaugh: the Russia investigation. Trump has already asserted that, if push comes to shove, he could pardon himself, which would spark a constitutional crisis. Kavanaugh, who worked closely with Ken Starr in his crusade to impeach Bill Clinton, has since completely reversed course, deciding that sitting presidents should be above the law: In 2009, he wrote that indicting a sitting president “would ill serve the public interest,” and as such the president should be legally protected from both criminal indictments and civil lawsuits while they’re in office—a position that is no doubt music to Trump’s ears.
Just as important, however, are the things flying somewhat below the radar: Fourth Amendment rights as the surveillance state becomes more sophisticated; criminal justice, drug, and sentencing reform, as well as the country’s treatment of refugees; the ongoing diminution of workers’ rights as the oligarchy and business interests gobble up wealth; the regulation of the internet; the future of health care policy, including, should Democrats retake power, the possibility of single-payer.
And then there are all the issues we can’t even conceive of that will emerge ten or twenty years from now—by which point Donald Trump will be but a stain on America’s history, but his court will be controlling the balance of power and setting strict limits on what the younger, more progressive rising generation can do.
That’s what’s at stake. Democrats’ efforts to hold McConnell to his own election-year standards will fail because McConnell has no shame, and he wants to win. For the same reason, the argument that Trump shouldn’t get to appoint a court that might rule on an investigation into him will fail. The only hope of preventing a regressive future is to fight hard and to fight now, to bombard supposedly moderate Republicans like Susan Collins and Lisa Murkowski and red-state Democrats like Joe Manchin with phone calls and emails. Assuming all forty-nine Senate Democrats toe the line, it will only take two Republican defectors to force Trump to nominate someone more like Kennedy than Clarence Thomas—not a liberal, but someone who will preserve the last shreds of the court’s dignity and not let it devolve into a pawn of the Trump White House.
The far right knows the stakes of this game, and they’ve been playing it for a long time. The question is whether progressives can rise to the challenge.