Kennedy’s retirement is a serious, alarming development toward a more partisan court

REUTERS/Carlos Barria
Supreme Court Associate Justice Anthony Kennedy is a conservative, but not a rigid ideologue, who sometimes has used his leverage to prevent the most extreme outcomes on matters that reached the Supreme Court.

For progressives, and even for those who just like the idea of checks and balances, the announcement today of the retirement of Justice Anthony Kennedy may be the worst thing that has happened all year. We’ll see.

Perhaps Senate Democrats can find a way to buy time, to delay the confirmation of Kennedy’s replacement until after the midterms, and the result of those elections will increase the chance that some partisan/ideological balance can be restored to our system.

I’m sure we’ll hear more about their ideas along those lines, but much of what we’ve seen over the past two years, starting with the Republican success at blocking the Supreme Court nomination of Judge Merrick Garland, followed by the rapid and highly partisan confirmation of Justice Neil Gorsuch, leads me to see the Kennedy retirement and his likely replacement by a young and more reliably conservative justice — who will be quickly confirmed on a party-line vote — as a serious and alarming possibility.

To state the obvious, Kennedy – who is a conservative, but not a rigid ideologue, who sometimes has used his leverage to prevent the most extreme outcomes on matters that reached the Supreme Court – will likely be replaced with a young ideologue who will cast the decisive fifth vote on many matters of great import and who can be trusted – as Kennedy could not – to follow the party line.

An element of the conservative movement has been working for years toward this day. The urgency of that element to replace Kennedy before the midterms will be powerful. I may be wrong, but I suspect the tools available to liberals and Democrats to even slow things down will not be enough.

In an effort to calm myself down, I reached out to Judge Kevin Burke of the Hennepin County District Court, on whom I have often relied for wisdom on matters judicial. I hoped he would reassure me that I was overreacting so I told him this development seemed “humongous” and “alarming” to me.

Unfortunately, he said he agrees. Burke has noted for years that the public’s view of the judiciary, including the Supreme Court, as measured by polls, has become increasingly partisanized, and that the replacement of Kennedy with a younger and more reliably conservative new justice will reinforce the growing public perception of the court as a “partisan tool.”  (Gallup has found over recent years that the portion of Americans who see the Supreme Court as above partisanship has fallen considerably.)

Not only is Trump likely to name someone who will push those partisan perceptions in the public perception, but at every step of the confirmation process, the partisan nature of court appointments will be reinforced in the public mind, predicted Burke, who has been a judge for more than 30 years and served several terms as the chief judge of Hennepin County.

Burke has worked and written on the topic of procedural fairness, which I take to mean that courts must not only be fair but must be perceived to be so, and that the idea of fairness is linked to the perception of nonpartisanship.

What happened in 2016, after the death of Justice Antonin Scalia, when Senate Republicans flatly and explicitly refused to even consider President Obama’s nomination of Garland because they hoped that by 2017 a Republican president might be in office, sent the message that judicial appointments, and therefore judicial decisions, were deeply tainted by partisanship.

“What I fear is the process that is about to unfold, coming on the heels of the McConnell treatment of Judge Garland, will do irreversible damage to the American judiciary,” Burke told me.

Despite being a conservative, and a Reagan appointee, Justice Kennedy was a key vote in preventing the Roe v. Wade decision on abortion from being overturned.  

Burke also said that “Kennedy wasn’t bigoted against gay people,” and his vote was important in preserving various gay rights rulings.

With Kennedy gone and likely replaced with a more partisan justice whose confirmation would be rammed through on party-line votes, Burke wondered how that might influence the court if questions reach the justices on the matter of the ongoing investigations of President Trump.

If Trump asserts, for example, a right not to testify before a grand jury about whether he colluded with Russians in the 2016 election, that matter could reach the Supreme Court. If that court consisted of a majority of Republicans, who have come to the bench through an increasingly partisanized process, Burke said, “I don’t think President Trump has any reason to fear whether he would get the five votes he needs” to support some assertion of executive privilege that protects him from having to appear before a grand jury under oath.

Personally, I just finished reading the smart, sobering book: “How Democracies Die.” I’m quite worried about ours.

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Comments (28)

  1. Submitted by Curtis Senker on 06/27/2018 - 04:58 pm.

    This is a huge, and to 1/2 of the country, welcome event. Speaking for myself, 5 solid Constitutional originalists on the court is sufficient. A toothless, but vocal opposition is a valuable thing, in my opinion, since even conservative justices have weaknesses, especially where police powers are concerned. (I’m pretty sure the left’s dream of legal dope has gone up in smoke, at this point.)

    So, I think the big deal will occur when RBG goes to her reward. I’d be in favor of replacing her with a swing vote, but that’s not likely.

    In any case, I’m feeling damn good about the bet I placed when I voted for Trump. After this next candidate is seated, anything else he accomplishes is gravy on my taters. I’ve got my napkin tucked in and waiting with anticipation to a favorable ruling on “Sanctuary” cities and states.

    • Submitted by ian wade on 06/28/2018 - 06:05 pm.

      Half the country?

      Hardly. Half the electorate, but it’s interesting that you really don’t seem to care that SCOTUS actually applies law fairly, just that you hope it sates your partisan palette. One thing the Trump presidency has accomplished is stripping the red, white and blue wrapping off of the most vocal “patriots” and exposed them for what they really are.

      • Submitted by Curtis Senker on 06/30/2018 - 08:47 am.

        My partisan palette contains nothing but red, white and blue. And you can trust me when I tell you the blue on my palette is a different shade than the UN favors.

  2. Submitted by Dennis Wagner on 06/27/2018 - 08:17 pm.

    “How Democracies Die.”

    Great ending, you only missed the part on how Fascism/Nazism arises!

  3. Submitted by Tim Smith on 06/27/2018 - 09:29 pm.

    Democracy is so difficult isnt it?

  4. Submitted by Neal Rovick on 06/27/2018 - 10:06 pm.

    Mourning the author of “Citizens United” ?

    Because he had some personal experience like understanding human foibles like unwanted pregnancy and the desire for formalized same-sex marriage ?

    The real game was the impending demographic collapse of conservatism and the expression of true democracy. You can marry whoever you want, just so long as you don’t infringe upon the wealth and power of capital. That is the line in the sand.

    There is a serious anti-democracy going on here.

    Why have the last two GOP presidents mused so longingly and enviously on the joys of autocracy?

  5. Submitted by Ray J Wallin on 06/27/2018 - 11:37 pm.


    The sky is falling!

    There is much unfounded fear in this article, while others paint a different picture…

    From Mother Jones: “the ideological distance between Kennedy and Gorsuch is vanishingly small.”

    From Slate: “Gorsuch is not drifting to the left. But his vote indicates that the justice has the same independent streak that led his role model, Justice Antonin Scalia, to occasionally push the law leftward.”

    With these reviews of Gorsuch, one cannot claim another Trump appointment brings a sky-is-falling moment.

  6. Submitted by Greg Kapphahn on 06/27/2018 - 11:38 pm.

    What Happens if This Runs its Natural Course

    If our fascist-leaning friends in the cult of Trump get their heart’s desire,…

    the complete removal from any semblance of political power of the poor, the women, the children, the Sr. citizens, the non-Christians, those who labor for their daily bread,…

    (and anyone who’s not white, straight, cis gender and male)

    and all those who have had their political power taken away,…

    (because their thoughts, ideas, and dreams are being completely drowned out by those with more money than they will ever need in their own or their great-great-great grandchildren’s lifetimes,…

    money to buy sufficient media to eclipse every concern but their own)…

    find they have no representation in the national congress nor their state’s legislature,…

    no hope of redress in the courts,…

    nothing left to lose,…

    and nothing to give but their own lives to try to win a better fate for those they love,…

    there can only be one result: anarchy and revolution,…

    a zombie apocalypse without any actual zombies.

    Perhaps all the zombie movies and TV shows are actually prophecy,…

    prophecy which we’re ignoring in our own day and time,…

    as surely as the ancient religious ancestors of some of us ignored and killed their own prophets some 2,000 years ago.

  7. Submitted by Hiram Foster on 06/28/2018 - 05:47 am.

    Court packing

    I think a lot of our institutions are failing, not just here but also globally. Europeans countries are collapsing also. But I think in the mid term, our unique experiment with judicial supremacy has failed. Lord Acton, did indeed get it right. Absolute power does corrupt, it just takes a while sometimes. We can’t have an all powerful, unelected judiciary govern this nation for the next forty years. A solution must be found. My modest proposal is court packing. Putting enough new justices on the court to overwhelm Trump’s McConnell manufactured majority. We democrats tried it once before in not completely dissimilar circumstances, and while it was ultimately not enacted but not without a salubrious effect on the court. It’s time to do it again, stripping the Supreme Court of it’s powers of misrule once and for all. It’s risky, I know, but it’s time to take the training wheels off our democracy.

  8. Submitted by John Webster on 06/28/2018 - 09:13 am.

    Crocodile Tears

    This all sounds so high-minded, but it’s purely crocodile tears. All Minnpost writers and almost all Minnpost readers would be deliriously happy if SCOTUS had nine clones of Ruth Bader Ginsburg advancing the left-wing agenda. Likewise for conservatives who would love to have nine clones of the late Antonin Scalia on the Court. Partisans on both sides don’t want balance on SCOTUS; they want Justices who will reliably advance their preferred agendas.

    It sounds counter-intuitive, but people who favor Roe vs. Wade and the same-sex marriage ruling should hope that at least one of the soon-to-be five conservative Justices acts in a politically partisan way should those rulings come to SCOTUS for new reviews. An almost 2/3 majority of the public favors unrestricted rights to abortion in the first trimester; heavy majorities – including large majorities of women – favor restricting abortion in the second trimester and especially in the third trimester (those facts are rarely if ever noted in the mainstream media). Public support for gay marriage has moved in the same direction.

    I can easily see Chief Justice Roberts upholding Roe; he is politically astute enough to know that Republicans will pay a heavy electoral price if abortion becomes a major issue in general elections. Same for the same-sex marriage issue.

    • Submitted by Curtis Senker on 06/28/2018 - 04:19 pm.

      I’ve said it elsewhere on Minnpost, but speaking for myself as a staunch conservative, I do not want 9 Scalia’s on the bench; I want 5, with one Kennedy. I feel it’s important to have a vocal, if impotent, leftist opposition on the court to keep the majority honest.

      Roe is, in my opinion, done for; but that is for the best.

      No one should have to abide with something they truly believe is beyond decent human behavior, and without the federal mandate, the several states can sort it out…as it was intended. The same is true, I think, of “gay marriage”. Staunch pro-life folks and adherents to science and human biology will leave states that decide to allow abortion and gay marriage; pro-abortion folks and those that believe natural science is not malleable will migrate to states will replace them.

      It’s exactly the kind of self-sorting federalism was designed to accommodate.

      My $.02

      • Submitted by Jim Bernstein on 06/29/2018 - 01:35 pm.

        Staunch Conservatives?

        If “staunch conservatives” had gotten their way when the Constitution was written and the first ten amendments were added, there would be no “free speech”, there would be no bar against a state religion, there would be no right to peacefully assemble and no right to a jury trial. Later, if “staunch conservatives” prevailed we would still have segregated schools, poll taxes, no public schools, and no access to birth control.

        Much more often than not, “staunch conservative” justices have used their “strict constructionist” perspective to thwart individual rights an favor of institutional power.

    • Submitted by Jon Kingstad on 06/29/2018 - 04:30 pm.


      If Roe v. Wade is overruled, it will return the issue to the states where abortion might be legal in states like New York and California, as it was when Roe was decided and create a volatile issue in the rest of the states. The country is not the same as it was in 1973 when Roe was decided. The issue has poisoned religion and politics and helped the decline of public faith in other area in this country. It will continue to poison religion and politics for years to come because it’s not going to go away if Roe is overruled. Overturning Roe will not stop abortion. It will only make abortion illegal and unsafe, primarily for the poor women who cannot afford to travel to places where it is legal.

      Obviously, “staunch conservatives” want enough “partisan justices” to reliably advance their preferred agendas. That’s become a defining characteristic of modern “conservatism” (which I would re-label with historian Richard Hofstadter’s term “pseudo-conservativsm.”) That’s not true of the so-called “left.” It might surprise those who call themselves conservatives (but are really not) that there is no “left wing” or”liberal” agenda of using the courts to advance some agenda. That idea did exist for awhile but it died under a federal judiciary that has grow increasingly reactionary since Nixon. The justices whom you refer to as ‘reliably leftist” have been at best right-center and have replaced other conservative justices who were nominated by “conservative” to “staunchly conservative” Presidents. That includes the Obama appointments. They were only “liberal” in accepting a consensus or convention that has until now been observed that reproduction rights or the right to marry were Constitutionally protected “penumbral rights of privacy”. There’s really has never been any such thing as a “leftist judge”. It’s a figment of demagogue politicians who’ve used issues like abortion and gay marriage to whip their narrow-minded, sanctimonious constituents into self-righteous rage.

  9. Submitted by Ray Schoch on 06/28/2018 - 10:07 am.

    Not only more partisan

    …but more partisan in a particular kind of way. The SCOTUS itself has moved to the right in the past few decades, and giving Trump, McConnell, and other right-wing figures an opportunity to not only steal a justice in the form of Mr. Gorsuch, but to add another reliably right-wing figure to the bench will provide a rare opportunity for the forces of reaction to color the legal landscape for decades to come.

    Voting rights, corporate privilege, press freedom and other issues seem likely to be resolved by the Court in favor of corporate and/or wealthy interests, and minority rights will be under more direct attack. I will be surprised if Roe v. Wade survives a year beyond the appointment of Kennedy’s replacement, and once the Court has reversed itself on that case, I expect women’s reproductive rights to be back in the hands of breeder-positive legislatures in many states within another year after that. We’ll have dropped back at least a half-century, and perhaps more, in that context.

    This will delight the more authoritarian-minded in the populace, as well as political figures who publicly revere freedom while simultaneously chipping away at it behind the scenes, and the rest of the population will be horrified – if and when they figure out what’s going on. Trump voters seem to me just as likely to be damaged as the rest of the population by this continued drift to the right. The only sliver of light on what seems a very dark horizon is that, in the past, appointees to the Court, once they’ve settled in, have occasionally ruled in ways their original supporters would never have guessed or supported. For good or ill, however, that doesn’t happen very often.

  10. Submitted by Hiram Foster on 06/28/2018 - 12:25 pm.


    My solution is either court packing or congressional legislation limiting the Supreme Court’s jurisdiction to a review of traffic violations. The alternative, rule for the next 40 years by a Trumpian court just isn’t feasible.

  11. Submitted by Misty Martin on 06/28/2018 - 12:36 pm.

    I haven’t read that book that you referred to. . .

    But I’m worried about ours too. President Trump’s recent rallies have supporters sound like some of the films that I’ve seen about dictators and their crowd support (think Hitler) and then too, even when President Trump makes errors in historical fact (such as stating that one President served 16 years – FDR served 12) and he has stated it no less than THREE (3) separate times, and yet, NO ONE bothers to correct him! That’s plain scary to think that he has that kind of control and power.

    Sounds more and more like what the former FBI Director James Comey referred to in his book, “A Higher Loyalty” about how mob bosses control their “family” and what they expect from them as well.

  12. Submitted by John Edwards on 06/28/2018 - 03:27 pm.

    Trump appointee will decrease partisanship

    The only justices who have exhibited bipartisanship in recent decades are those appointed
    by Republicans. Nixon-appointee Harry Blackmun wrote the Roe.v.Wade decision; Bush-appointed John Roberts decisively gave us ObamaCare; Reagan-appointee Kennedy did so for same sex marriage; Ford-appointed John Paul Stevens aligned with liberals more often than not as did Bush-appointee David Souter. As these justices demonstrated, Republican appointees make decisions based on the Constitution and laws as they are written.

    By contrast, those appointed by Democratic presidents Clinton and Obama (Ginsburg, Breyer, Sotomayor and Kagan) are hidebound leftists who vote in lockstep to implement judicially that which cannot obtain politically. I cannot think of one significant court decision in which those justices strayed from their predictably rigid, left-wing ideology.

    As history shows, a Republican president like Trump will appoint a justice who will interpret law, rather than make it. That will assuredly lessen the perception of partisanship, with which liberals Judge Burke (appointed by DFLer Rudy Perpich) and Mr. Black profess to be so concerned.

    • Submitted by RB Holbrook on 06/28/2018 - 03:52 pm.

      That Was Then, This is Now

      “The only justices who have exhibited bipartisanship in recent decades are those appointed
      by Republicans.” Except now, the Republican Party has turned into the party of the far right. There are no more Republican moderates. The vetting of judicial appointees is much more careful, to avoid surprises.

      “As history shows, a Republican president like Trump will appoint a justice who will interpret law, rather than make it.” Good one! The appointee picked for Trump by his handlers (you don’t think he has the attention span to vet a Supreme Court nominee) will be one who hews reliable to right-wing Republican orthodoxy.

      In any event, it is true folly to say that there is only one way to interpret the Constitution or the laws of the United States. Even the self-proclaimed textualists like Justice Scalia have had no qualms about leaving the text behind when it was convenient.

    • Submitted by Connie Sullivan on 06/28/2018 - 04:49 pm.

      Trump has promised very loudly and repeatedly that his appointees to the Supreme Court will vote to reverse Roe v. Wade and thus prohibit women’s right to choose abortion. The list of possible appointee justices he has prepared and shared publicly contains all anti-choice advocates (by Trump’s own requirement).

      That makes all women into Hand Maidens again, forced to bear children by the men who control them.

      I’d like to remind men who are so comfortable with dividing the abortion-rights issue into trimesters when you can or can’t have a legal abortion, that most women are unaware that they are pregnant until they’re pretty far into the first trimester. That means they have to rush a decision if they are forced to have an abortion in the almost-vanishing first trimester that some men would make the only legal time frame.

      I’d like all American women to keep in mind that abortion will probably be illegal, totally, in several years with another Trump appointee to the Supreme Court. Those women who are younger than forty have absolutely NO IDEA of what we went through before Roe v. Wade. They have grown into adulthood assuming the right to choose whether or not to complete a pregnancy.

      Another note. No one is making much of this, but we should: Trump’s been nominating judges all over the place, by the dozens, to federal courts beneath the Supreme Court. They are the courts that have been protecting us from Trump’s worst instincts and edicts like the Muslim travel ban, and he has been eating away at their ideological liberalness for 18 months now. The federal judiciary is turning conservative right under our noses, outside of the light.

      We are becoming a nation of one-party rule. What’s the name for that, again? We should ask Putin when he comes for his State Visit or Summit With Trump or whatever. In any event, I think we have only one election–this fall’s–to get our country back.

  13. Submitted by Jon Kingstad on 06/28/2018 - 05:58 pm.

    Partisan and “conservative”

    Retiring Justice Kennedy was the author of Citizen’s United, a decision which expanded the First Amendment to embrace a corporate “personhood” and fuse that expansion with the novel idea of expenditure of money as “speech”. We know that the parties in that case had not even raised that issue but that these “conservative” justices had asked for the issue to be briefed in a second round. Yesterday’s decision in Janus is another example of how these same justices, now fortified with Neil Gorsuch, are using judicial review to overturn prior decisions and legislation which they disagree under the pretext of enforcing the First Amendment. That’s not “interpreting the law”; that’s making law by judges under the guise of constitutional interpretation.

    Their decisions resemble nothing so much as the use of substantive due process and related constitutional verbalisms by the Supreme Court before 1937 to hold state and federal legislative reforms attempting to protect the rights of labor and individuals and curtailing the power of concentrated wealth as unconstitutional.

    “Judicial partisanship” used to have only a passing resemblance to “partisanship” among elected representatives. Since the GOP has been in control of the White House for more years since 1968, the fact some of the Republican appointees have turned out to be more “liberal” is only because the politics have changed over that time to make some decisions “political.” Roe v. Wade, decided by a mostly GOP appointed Court, did not become partisan until Reagan broke tradition, making it a political and campaign issue. This culminated in Mitch McConnell making the appointment of a Supreme Court justice blatantly partisan by refusing to even hold hearings on Obama’s nominee to the Court. With that action, this country lost the United States Supreme Court as a credible arbiter of the important justiciable issues of our times.

  14. Submitted by Neal Rovick on 06/28/2018 - 08:25 pm.

    While there is great pretense by conservatives that law is immutable and must be the same as it as it always was–law is ever-shifting. What was illegal a decade ago is legal now. I’m sure you can come up with many examples on your own of long-abandoned laws and laws that technology and attitudes have left behind. Laws need to be renewed The demand that laws remain is only a reflection of the power values of backward looking conservatives who are a demographic minority who are increasingly relying on undemocratic means to get their way.

  15. Submitted by Hiram Foster on 06/29/2018 - 05:42 am.


    Even if there was the barest possibility at all that a Trump nominee would reduce partisanship, I hope no one tells Trump supporters that. More than any other reason, Trump supporters were promised a partisan nominee, one that would support their positions down the line. If Trump dared to appoint a justice with even a modicum of fairness or legal neutrality, the partisan sky would fall on Trump the moment after he did it. Literally he could not survive it politically.

    Along with tax cuts, literally the only thing the Republican Party stands for is partisan, extremist judges. They simply cannot depart from that position now. It would be the ultimate betrayal.

  16. Submitted by Mike Chrun on 06/29/2018 - 12:26 pm.

    The Irony, Dear God

    “No one should have to abide with something they truly believe is beyond decent human behavior…”
    This is actually written by a guy basically gloating over what he sees are the successes of a President who goes beyond “decent human behavior” daily. I’d say something about irony, but it would be lost on him. After the initial gloom, I have real hope this is going to energize the opposition even more.

  17. Submitted by Curtis Senker on 06/29/2018 - 08:35 pm.

    “the Supreme Court will vote to reverse Roe v. Wade and thus prohibit women’s right to choose abortion.”

    I’m always amazed at how uninformed many pro abortion people are about the issue. If Roe is overturned, as it will be, it won’t be the end of abortion. It will he the end of abortion in states where the majority doesn’t want it.

    I’m sure it will continue to flourish in leftist stronghold states. No worries.

    • Submitted by Jon Kingstad on 06/30/2018 - 09:51 pm.

      No worries

      You’re right that abortion will end in “states where the majority doesn’t want it”. But I’m amazed you don’t understand that it’s irrelevant that the “the majority doesn’t want it.” You are confident that it’s irrelevant that a majority wants to require people to contribute to unions that bargain for them collectively, so they can have their cake and eat it too. But you have no problem in a minority dictating that people have no right to access birth control or to decide to terminate a pregnancy. Who cares what the Supreme Court thinks. What do you think?

  18. Submitted by Carrie Anderson on 06/30/2018 - 12:39 pm.

    Legality notwithstanding, abortion is here to stay

    Abortion won’t go away in states that outlaw it. There will always be a need for it, and though it won’t happen for everyone seeking it, there will be those who will find a way to get an abortion. Where one lives has nothing to do with it.

    Prior to Roe v. Wade, there were networks throughout this country — including one made up of clergy and rabbis — who worked to ensure the availability of a safe medical procedure, even though they put themselves at risk for criminal prosecution. I’m guessing similar networks exist today in states that have made abortion all but illegal. I would also add that these networks (or individuals) are probably much more undercover due in part to state laws but also to the Pro-Lifers who have seen fit to kill those with whom they disagree. And if such support can’t be found, there is the time-honored tradition of various forms of self-treatment, which can end up injuring or killing the person who is pregnant or causing her to carry to term a fetus that is irreparably harmed.

    In 2018, it is unfortunate but not surprising that those who call themselves staunch Conservatives — no less while arguing for a partisan supreme court — are so ignorant about abortion and so callous toward the right to life, liberty and pursuit of happiness of about half the population of this nation.

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