WASHINGTON, DC – Justice Anthony Kennedy announced his retirement from the U.S. Supreme Court on Wednesday, making the nation’s highest court the top issue in the 2018 midterm elections and giving President Trump a historic opportunity to score a win on his most potent political issue.
Kennedy announced his retirement on the final day of the Court’s annual term, which begins the first Monday of October and goes until the end of June. He did not announce it from the bench during the final sitting, leaving Court-watchers to conclude that he may serve at least another year. Hours later, the decision to retire effective July 31 became public, making this issue the top news story in the nation.
At age 81, Kennedy has served on the nation’s highest court since 1988. President Ronald Reagan appointed him with the expectation that he would be a consistent conservative, but within years of his appointment, he showed he was actually a moderate justice, being the decisive fifth vote for liberal outcomes on religious liberty and abortion in 1992.
The stakes could not be higher. Kennedy was one of two swing votes on the Supreme Court for well over a decade, and then became the sole quintessential swing vote on the Court in January 2006 when Justice Sandra Day O’Connor retired. On matters including federal power under the Constitution’s Commerce Clause, racial preferences, abortion, habeas corpus rights for terrorist detainees, war powers, same-sex marriage, the LGBT agenda, and a host of other issues, Kennedy has been famously unpredictable.
Supreme Court lawyers on those and other issues focused the entirety of their legal briefs and oral arguments on persuading Kennedy, operating on the assumption that the other eight justices’ votes were secure, four on one side and four on the other.
This now starts a frenzy of activity in what is anticipated to be the political equivalent of Armageddon. If Kennedy is replaced by an originalist – that is, a principled constitutional conservative like Justices Clarence Thomas, Neil Gorsuch, Samuel Alito, or the late Antonin Scalia – President Trump might create the first reliable conservative majority on the Supreme Court since 1934.
If so, then Chief Justice John Roberts will become the swing vote on many issues, making the Supreme Court truly the Roberts Court in every sense of the word.
That raises profound possibilities. The size and scope of the administrative state, the government-funded entitlement state, the non-judicial nature of foreign policy and military matters, the counterculture of the 1960s, the civil rights era, the sexual revolution, and the environmental movement have never been reviewed by a conservative Supreme Court. The constitutionality of some things that many Americans take for granted could be re-examined by a judiciary that asks whether longstanding laws or concepts are consistent with the text, structure, and history of the Supreme Law of the land.
The Supreme Court was the top issue for 21 percent of voters in 2016 – more than one in five – and those voters went for Donald Trump by a margin of 57 to 41, making it a 16-point advantage for the president.
President Trump now has the opportunity to make history by delivering on that campaign promise on a level many Americans never considered possible, defining the 2018 midterms almost entirely on a single issue. By choosing a reliable conservative from his list of 25 judges, the president could motivate his base like no other issue could while also earning approval from swing voters, whom polls show prefer judges who adhere to the Constitution and laws as they are written without inserting their personal political or policy preferences.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.