What’s Going to Happen With 5 Conservative Supreme Court Justices?


Anthony Kennedy
DonkeyHotey via Flickr.com

In late June, Supreme Court Justice Anthony Kennedy elected to call it quits, ending his tenure as one of SCOTUS’ Supremes. In the letter to Trump — the contents of which weren’t made apparent to the Donald until segments were quoted later that day on Fox News — Kennedy wrote of the honor of achieving his position and the blah blah blah, am I right?

The moment the old fella made his resignation public, there was zero talk of Kennedy’s legacy, even though he may be the last swing vote in the history of SCOTUS. Instead, the public has favored a new round of everyone’s least favorite argument: how can another Trump Supreme Court appointee screw up America even fast? The debate raging over the horror that another Trump Supreme could cause has verged on verbal Thunderdome.

Of course, all those people worried about the longterm damage another conservative member of the Supreme Court could cause are entirely justified. Sorry. It would suck.

The Way Things Are Now

During Kennedy’s latter days in the court, he became known for switching sides of the aisle based on the issue (you know like a Supreme is supposed to do). His thoughtful decisions often caused high drama over significant issues, as no one could tell where Kennedy might land. That said, even before Kennedy decided to call it quits, things on the Supreme Court were already leaning a little to the right. Anthony Kennedy was technically considered a swing vote, but his wavering conscience didn’t stop SCOTUS from okay’ing Trump’s travel ban and allowing Texas to gerrymander based on racial divisions.

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That’s to say nothing of the fact that Kennedy chose to retire during a Republican presidency, virtually assuring that his replacement will be super-duper conservative in his decision-making. Unless Samuel Alito wants to go both ways, the days of wondering which way SCOTUS would swing on big votes are over folks.

That’s not the (only) reason that liberals are freaking out about Kennedy’s departure. A staunchly conservative SCOTUS could bring the crazies out of the woodworks to challenge longstanding laws with a whole new legal assault.

Let’s Start With Roe v. Wade, Everyone’s Favorite Party Topic

One of the most provocative issues facing a freshly aligned Supreme Court is a potential challenge to a women’s reproductive rights. Trump and his new SCOTUS crony don’t even have to mention Roe v. Wade publicly, because right-wing anti-abortion folks are already dialing the number of the nearest lawyer.

So, while Trump goes with his second choice candidate, interest groups can begin preparing their legal challenges. All they have to do is keep appealing their case all the way to the top. Sure, it would take millions of dollars and an obsessive amount of dedication, but when you’re not having sex, you find yourself with a lot of free time to kill.

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Same-Sex Marriage Could Get Another Day in Court

In June 2015, it was Kennedy’s deciding swing vote in Obergefell v. Hodges that ensured all fifty states were required to issue marriage licenses to same-sex couples. It was a monumental step forward in civil rights … that still has tons of people extra pissed off.

Some of the court cases that came about as a result of the SCOTUS decision are still banging around in lower courts. It’s not inconceivable that one (or more) might find its way back to the highest court in the land.

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Affirmative Action is Still a Hard-Won Victory

In 2016, a young woman who apparently didn’t get into any colleges was so furious that the University of Texas wanted to actively diversify the student body she brought her case all the way to the Supremes. It was Anthony Kennedy, in a surprise move, who cast the deciding vote which allowed the University of Texas to continue their race-based admissions program.

In a world where some people will try to convince you that racism is dead, support for institutions fighting for diversity is scant. Without Kennedy, that fight just got a little bit tougher … sorry, I don’t have a joke for that. It just blows.

Here’s a kitten loving a dog as a palate cleanser.

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Expect the Death Penalty to Find Its Way to the Spotlight

From time to time, SCOTUS still has to weigh in on different aspects of the death penalty, including specific cases. Even with Kennedy in office, SCOTUS’ ruling record on the death penalty was a crap shoot.

Last year, SCOTUS saw five capital punishment cases in one term. Thanks mainly to Kennedy’s decisions, the court came down largely in favor of evacuating specific cases while ensuring that the death penalty isn’t going anywhere anytime soon. Which is great, because there certainly aren’t enough dumb government practices that waste millions in taxpayer dollars year after year.

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Fun fact about death: On average it costs about $750,000 to incarcerate somebody for life, and it takes $1.2 million-ish to kill them. It is so weird the places Republicans choose to spend money.

Let’s Just Redraw the Lines Until We Win

We all know that gerrymandering is a vital part of American politics because redrawing voting districts ensures that the collective votes of poor people and minorities don’t have quite the same impact as … other … people’s votes …

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About 700ish words ago, I mentioned that last year, SCOTUS said Texas’ racist gerrymandering plan was hunky dory. Fans of redistricting can expect that cause closest to their hearts — the secret removal of the democratic method from democracy — will get a helping hand from the next guy.

So, Who Is the Dude Who Can’t Spell Cavanaugh?

Of course, all that calamity comes down to the guy who will get the job (trust, if Trump is deciding, it WILL be a guy). Right now, Trump’s fella is the second choice on a list he made in 2016, Brett Kavanaugh.

Kavanaugh is a first-generation rich kid (https://www.nytimes.com/2018/07/14/us/politics/judge-brett-kavanaugh.html) whose mother was a judge and whose father was a wildly successful DC lobbyist. In short, if Donald Trump was going to pull the plug on the political swamp, this is a step in the wrong direction. The Trump camp is touting Kavanaugh’s pro-business leaning, but Kavanaugh himself likes to point out William Rehnquist’s inspiring dissent on Roe v. Wade.

More to the point, Kavanaugh has stated he thinks it imperative that SCOTUS “operates more as a court of law and less as an institution of social policy.” Want to take a quick guess which of the above massively important topics count as social policy?

Assuming that Democrats don’t try and put a stop to Kavanaugh’s confirmation — I hear the “it’s an election year” argument is very popular — it would appear that the staunchly conservative legislature will be the next member of the Supreme Court, and the rest of us better start hoping one of those other stodgy old dudes has a heart attack sometime in 2020.

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