Will Neil Gorsuch inspire Justice Kennedy to step down?

Conservatives Think Justice Kennedy Is Stupid. They’re Wrong.

Conservatives Think Justice Kennedy Is Stupid. They’re Wrong.

The law, lawyers, and the court.
Feb. 5 2017 10:06 AM

Anthony Kennedy Is Not Stupid

He’s not going to step down just because one decent conservative judge was nominated to the Supreme Court.

U.S. Supreme Court Associate Justice Anthony Kennedy arrives for the funeral of fellow Associate Justice Antonin Scalia at the the Basilica of the National Shrine of the Immaculate Conception February 20, 2016 in Washington, DC.
U.S. Supreme Court Justice Anthony Kennedy arrives for the funeral of Antonin Scalia on Feb. 20, 2016, in Washington, D.C.

Chip Somodevilla/Getty Images

There has been a lot of chatter in the media about the strategic considerations behind the selection of Judge Neil Gorsuch to fill the vacant seat on the U.S. Supreme Court. Was it a move made at least in part to mollify Justice Anthony Kennedy about the direction of the court on Donald Trump’s watch and thus to coax him into retirement? As Peter Baker reported this week in the New York Times, “The idea is to show Justice Kennedy, 80, that should he step down at some point, Mr. Trump would select as his replacement a nominee similar to Judge Gorsuch, and not one so inflammatory or outside the mainstream as to be unacceptable to Justice Kennedy.”

The question then becomes whether the selection of Gorsuch, by all accounts a bright, likable, and temperate jurist, is going to reassure Kennedy that he can safely leave the court, and his judicial legacy, in the hands of a Justice Gorsuch and a President Trump.

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That’s doubtful. Here’s a question you might find useful in pondering this problem: What does Gorsuch think about Planned Parenthood v. Casey (1992), Lawrence v. Texas (2003), U.S. v. Windsor (2013), and Obergefell v. Hodges (2015)?

These are the cases in which Kennedy, in his role as “swing voter,” respectively preserved the core of the abortion right protected in Roe v. Wade; struck down Texas’ ban on same-sex intimacy; rejected the Defense of Marriage Act’s discriminatory definition of marriage as limited to opposite-sex couples; and held that the fundamental right to marry that the court has long protected includes same-sex marriage. Gorsuch almost certainly believes that all of Kennedy’s opinions in these cases were deeply misguided.

Given that Kennedy obviously disagrees, why would Gorsuch’s nomination cause Kennedy to feel confident enough in his legacy to step down? Perhaps because of a widespread belief among conservative Republicans that Justice Kennedy is stupid.

Many conservative Republicans—and notably the groups that took great pride in spearheading the Gorsuch nomination—have long sneered at Kennedy’s rhetoric and reasoning in the very cases that most define his judicial legacy. They never tire of mocking his “mystery of human life” passage in Casey, the decision that preserved the right of a woman to terminate her pregnancy and so to determine her own life’s course on equal terms with men. In that case, Kennedy wrote in a controlling opinion he co-authored with Justices Sandra Day O’Connor and David Souter: “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.”

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Robert Bork called that phrase indicative of “New Age jurisprudence,” and George Will said it was “gaseously” written. In the American Spectator, Terry Eastland said of the controlling opinion in Casey, “This is jurisprudence worthy of Murphy Brown, advancing a definition of liberty so radical as to suggest that law is impossible and chaos our destiny. At least from the mouth of Murphy Brown it would have been fiction.”

More recently, conservative contempt was palpable in the channeling of Justice Antonin Scalia’s dissent in Obergefell, which slashed Kennedy’s majority opinion for being “couched in a style that is as pretentious as its content is egotistic” and for containing “extravagances, even silly extravagances, of thought and expression.” Scalia even wrote in this dissent that he would “hide [his] head in a bag” rather than join an opinion that began the way Kennedy’s did. When one of us subsequently testified at a Senate subcommittee hearing on Obergefell and King v. Burwell, which involved a challenge to the Affordable Care Act, the frequency with which Sen. Ted Cruz and both Republican witnesses invoked Scalia’s dissents was stunning.

In response to Obergefell, the Heritage Foundation’s Betsy Hart wrote of the Bork hearings that “[n]o one at the time thought backing down from fighting for Bork would lead to the calamity that Justice Kennedy has been in countless narrow decisions over the years, most recently last week.” Last year, at the end of the term, Ben Shapiro of the conservative Daily Wire tweeted, “Justice Kennedy is the worst when he doesn’t have his Metamucil.”

Today, however, Republicans want something from Kennedy: They want his seat. They want him to believe that the same conservatives who have derided and insulted him for decades are in fact profoundly respectful of his views and his legacy. And so, as many media reports now suggest, the president and his advisers chose Gorsuch, instead of a more polarizing figure like Judge William Pryor, largely as a way of reassuring Kennedy that he can safely step down.

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This explanation makes good sense. It explains why Trump, for the first time in his tumultuous first two weeks in office, didn’t gratuitously select someone who openly despises the institution he is being nominated to join. (It is a truism of Trumpism that he will unerringly pick more of a fight than necessary in his nominees, just for the sheer Steve Bannon–fork-in-the-eye pleasure of it all.) The problem with this strategy, though, is that Kennedy is not stupid. He never has been. And because he is not stupid, he understands two important things.

First, Gorsuch is very, very conservative—more so than Scalia, according to political scientists who study judicial ideology. Another Gorsuch on the court instead of Kennedy would move the court profoundly and dramatically to the right and would imperil much of Kennedy’s legacy. From where Kennedy sits, this is not an ideologically reassuring pick.

Second, all the justices are well aware that Trump—who likely triggers more revulsion in the decorum-loving, civility-espousing internationalist Kennedy than in any other justice—could nominate anyone he wanted for his next pick. As soon as Kennedy stepped down, Trump could choose a Judge Pryor or a Steve Bannon or a reality show star. Why would a justice who has emphasized the necessity of thoughtful, respectful civic discourse have any reason to trust a president who embodies the antithesis of these values every day and in every way?

Movement conservatives have derided and insulted Kennedy for most of his time on the bench. Now they apparently believe him to be foolish enough to step aside because their pick for the court this time around isn’t the affront to the judicial branch that it could have been.

Justice Kennedy is not always easy to predict. And we live to learn. But we don’t see him wanting to step down before 2020.

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Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

Neil S. Siegel is the David W. Ichel professor of law and professor of political science at Duke Law School.