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A New Balance on the Supreme Court Won’t Be the End of American Democracy

Reilly Stephens

Realities both political and actuarial fuel speculation about
when Supreme Court Justice Anthony Kennedy — for more than a
decade the deciding vote on issues from abortion and gay marriage
to campaign-finance regulation and gun rights — might hang up
his robe. Conservatives hope that a Trump-appointed replacement
might roll back decisions such as Obergefell v. Hodges and
Planned Parenthood v. Casey. Progressives, for the same
reason, root for him to keep at it till at least January 20,
2021.

Here at National Review,
Michael Brendan Dougherty comes to a dire
conclusion on the matter: “Anthony Kennedy Can’t Be Allowed to
Die.” Kennedy, Dougherty believes, is more or less the last rivet
keeping the wings on our political 747 attached. The Supreme
Court’s role has evolved from simply deciding cases; it now must
“moderate and restrain the ambitions of each party.” On this view,
the fact that Kennedy “swings” from right to left from case to case
keeps each side on board. And since any replacement would probably
conform more closely to one faction or the other, “if the Court
soon consolidates to the left or the right, partisans on the losing
end of that bargain will swiftly lose faith in democracy itself.”
In our current hour of political craziness, the Court must keep
swinging, the way kids must clap to sustain Tinker Bell.

The good news is that there are reasons to doubt this prognosis.
To begin with, it does not address how the Court functions in
practice: There is always a median justice, so the effect
of any change is felt on that margin. Justice Sonia Sotomayor is a
far more solid progressive vote than was Justice David Souter, but
her appointment merely shored up the outer flank of that coalition.
Chief Justice John Roberts is a more reliably conservative vote
than was Chief Justice William Rehnquist, but this difference was
dwarfed from the beginning by the gap between Justice Samuel Alito
and the justice he replaced, Sandra Day O’Connor (Kennedy’s
predecessor as median vote).

How will Kennedy’s
would-be replacement adjust the Court’s equilibrium?

So how will Kennedy’s would-be replacement adjust the Court’s
equilibrium? If President Trump replaces Kennedy with someone on
the model of Neil Gorsuch, then the most likely applicant for
median-vote status would become the chief. A few years from now,
the sort of replacement one would expect from President Oprah
Winfrey would shift the center to Justice Kagan (or perhaps Breyer,
or his replacement) in the same manner.

The latter scenario represents a greater “swing” in the
equilibrium, but the system would also adjust dynamically: What
cases are brought depend in large part on what cases might be won.
Over the past decade, gay-rights and campaign-finance cases
proliferated, because the Left and the Right felt that these
offerings would best please Justice Kennedy, whereas cases
addressing the scope of the Fair Housing Act were repeatedly
scuttled because of progressive fears (ultimately unjustified) that its expansion would be
stifled. Now and then activists get out ahead of their skis —
it remains baffling that anyone thought the current Court would
declare affirmative-action programs not just
permissible but constitutionally required — but the
bar generally understands that it goes to court with the justices
it has. The Left has found ways to win cases in front of an overall
hostile court, and not just via justice Kennedy, from Gonzales
v. Raich
to King v. Burwell. The Right would do the
same.

The most likely scenario, that Kennedy’s replacement moves Chief
Justice Roberts into pole position, might not take much swing out
of the Court’s step in any event. What the chief lacks in
self-conception — Kennedy views himself as “the Tolkeinesque
protagonist of the American story,” in Dougherty’s rendering
— he makes up for with an institutionalism that has long
rankled the Right. The keystone here is Roberts’s opinion upholding
Obamacare’s individual mandate. Rather than join either faction in
NFIB v. Sebelius, he split the baby, saving the
statute with a creative reading often interpreted as an attempt to
wiggle out of a political vice that might have damaged the Court,
and therefore the American system, in exactly the way Dougherty
fears.

Some now speculate that Roberts is swinging toward the
center in any event, a pattern that characterized other justices,
including his mentor Rehnquist, who was once the Miranda
rule’s greatest opponent but became its protector. Whether or not one thinks the
transfiguration of the individual mandate preserved some abstractly
defined “legitimacy,” one doubts that Roberts will be disabused of
the notion.

But beyond how the Court functions internally, is it clear that
the rhythmic distribution of bipartisan morsels satiates either
side? Progressives already consider the Court the “the cat’s-paw”
of the Republican party, “gutting” protections for voting rights and legalizing “bribery” in the service of their
ideological patrons. Social conservatives consider the edicts from
One First Street as nothing less than licenses to murder and to debauch sacred institutions(at National Review, the Court has been called
Ayatollah Roberts and His Sharia Council”).
Each view is hyperbolic, but the point is that rather than
supplicating for meager rations, partisans more often react to each
taste with increased appetite.

History is bereft of much evidence of the Court as a moderating
influence. Brown v. Board was not met with respectful
acquiescence; enforcement required the 101st Airborne. Roe v.
Wade
turned a previously minor debate into a multigenerational
litmus test. For as long as the Court has been with us, it has been
an effigy for political angst. Teddy Roosevelt ran against the
Court; later his cousin Franklin tried to pack it. Nixon campaigned
to replace the retiring Earl Warren much as Trump did for the late
Antonin Scalia — except Nixon’s vow was to condemn a
justice’s legacy, not protect it. “This time is different” is an
irrefutable argument, easily asserted, and the burden should be on
those making it to overcome our skepticism.

The Court doesn’t moderate our differences; it reflects them. It
is formed out of the institutions that determine its membership,
and to the extent a machine is broken, you rarely expect its output
to make the repairs. The metronomic dispersal of outcomes right and
left is the result of our current schism, not a salve for it.

The Court can’t save us from ourselves, but that’s not what it’s
there to do. It’s there to interpret laws and decide cases. There
are strong disagreements about how this should be done. Barack
Obama privileged “empathy,” while Scalia championed
rigorous adherence to text, wherever it may lead. Political
posturing infects this conflict enough without the added demand
that the Court maintain a patronage system that doles out trinkets
to keep the factions in line.

Reilly
Stephens
is a legal associate at the Cato Institute.