The Daily - The Supreme Court Loses Its Swing Vote

Episode Date: June 28, 2018

Justice Anthony Kennedy, often considered the Supreme Court’s ideological center, announced that he would retire this summer. His departure could fundamentally change the direction of the court. Guests: Adam Liptak, who covers the Supreme Court for The New York Times, and Sheryl Gay Stolberg, a congressional correspondent for The Times. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, Justice Anthony Kennedy announces his retirement. What it means for the court to lose its only swing vote. It's Thursday, June 28th. June 27, 2018. My dear Mr. President, this letter is respectful and formal notification of my decision,

effective July 31 of this year, to end my regular active service as an Associate Justice of the Supreme Court. For a member of the legal profession, it is the highest of honors to serve on this court. Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises. Respectfully and sincerely, Anthony M. Kennedy. Adam, what did you think when you read that letter from Justice Kennedy telling the world that he would step down from the court?

I thought, there goes my summer. What do you mean? This is an earthquake. Adam Liptak covers the Supreme Court for The Times. This is the biggest story in a big news environment in a long time. I mean, this will be an epic fight. This is not an ordinary Supreme Court retirement or confirmation process. Justice Kennedy has for decades held the key to the most divisive and important decisions in American life.

And in giving President Trump the opportunity to replace him, the Supreme Court will be transformed. Can you tell me a little bit about how Justice Kennedy was first nominated? He was President Reagan's third choice, but it's with great pleasure and deep respect for his extraordinary abilities that I today announce my intention to nominate United States Court of Appeals Judge Robert H. Bork to be an Associate Justice of the Supreme Court.

The first choice, Robert Bork, very conservative. Mr. Byrd? No. Mr. Metzenbaum? No. ...was voted down by the Senate. Mr. DiVincini? No. Hmm. Mr. Biden? No. Second choice... I am announcing today

that in accordance with my duty under the Constitution, I intend to nominate and ask the Senate to confirm Judge Douglas Ginsburg of the United States Court of Appeals for the District of Columbia Circuit for the position of Associate Justice and ask the Senate to confirm Judge Douglas Ginsburg of the United States Court of Appeals for the District of Columbia Circuit for the position of Associate Justice of the Supreme Court. Douglas Ginsburg never really got started because there was a scandal about marijuana smoking.

And so finally, we turn to Justice Kennedy. I am today announcing my intention to nominate United States Circuit Judge Anthony Kennedy to be an associate justice of the Supreme Court. Who is not the hardcore conservative that the Reaganites probably wanted, but by then they'd been forced into going a little more moderate. Now, I believe that Judge Kennedy has a few words to say. Thank you, Mr. President.

By announcing your intention to nominate me to the Supreme Court of the United States, you confer a singular honor, the highest honor to which any person devoted to the law might aspire. And who did Reagan and the conservatives around President Reagan think that they were getting when Kennedy was nominated? Well, they hoped they were getting a reliable conservative. Judge Kennedy is what in many in recent weeks have referred to as a true conservative, one who believes that our constitutional system is one of enumerated powers, that it is we, the people,

who have granted certain rights to the government, not the other way around. And was he that, a somewhat reliable, hoped-for conservative, once he was confirmed to the court? In a lot of ways and a lot of the time, yes. He cast the decisive vote in some very big cases, wrote the opinion in Citizens United, which amplified the role of money in politics, joined conservative 5-4 majorities in Bush v. Gore, which handed the presidency to President George W. Bush, joined the majority in a 5-4 decision in District of Columbia against Heller, which established a

constitutional Second Amendment right to keep and bear arms in the home. So in many cases, in most cases, he was what he seemed to be, a Republican appointee who voted conservatively. So what Reagan expected him to be and hoped he would be. Right. But. I say pro. You say choice. Pro.

Choice. Pro. Choice. In not a few cases, in some of them very big cases, he leaned left. some of them very big cases, he leaned left. He joined other justices to save the right to abortion in Planned Parenthood against Casey, which reaffirmed the core of Roe v. Wade, establishing a constitutional right to abortion.

He voted to cut back on the death penalty. He voted in favor of affirmative action. Justice Anthony Kennedy, writing for the majority, argued for American education's need to reconcile the pursuit of diversity with a constitutional promise of equal treatment and dignity. So he disappointed conservatives and presumably disappointed President Reagan in a whole array of cases. Love! Love means love! But nothing compares to the 2015 decision in which Justice Kennedy, writing for the court in a 5-4 decision joined by the court's liberals, established a constitutional right to same-sex marriage,

saying it was required by the equal dignity protected by the Constitution. Just moments ago, the Supreme Court and this landmark ruling, the court making same-sex marriage legal in this country, across every state in this nation. There were tears in the courtroom. There was jubilation outside the courthouse. I was trying to file my story, and so many people were on their phones that I couldn't get cell service. It's the only time it's ever happened to me.

Writing for the court, Justice Anthony Kennedy said same-sex couples seek not to denigrate marriage, but rather to live their lives joined by its bond. That was easily one of the most important cases in the Supreme Court's history. He was the greatest judicial champion in American history of gay rights. But it's Justice Kennedy who's been the decisive voice affirming gay rights under the Constitution in four separate major opinions over the past 20 years. Those cases will be his legacy, Scott, putting gays and lesbians on equal ground. Well, how do you understand the kind of Kennedy level of unpredictability, sometimes siding very deeply with conservatives, sometimes siding very deeply with liberals? Is there something discernible guiding him?

A great deal of self-confidence and actually no particularly discernible judicial philosophy, no particularly discernible judicial philosophy, a kind of mystical judicial supremacy in which he thinks that judges can be trusted to divine the right answers from the somewhat cryptic language of the Constitution. And you're very gracious not to use the term swing vote. I hate It has this visual image of these spatial gyrations. The cases swing. I don't. Thank you for not using that term. One thing to bear in mind is people think that he's Hamlet, that he's the swing justice, that he's picking between one side or the other. But that's not the right way to think about it.

How should we think about it? When he's with you, he's with you 110%. So in the more conservative cases, he was very conservative. In the more liberal cases, he was very liberal. But he had an idiosyncratic jurisprudence that allowed him to have a foot in both worlds. Adam, how has Kennedy's kind of amorphous legal approach

translated to how he dealt with his fellow justices? What was his dynamic with them on the bench and off? My sense is he was well-liked, but much more important, because he had the deciding vote, everyone deferred to him. At arguments, when he started to talk, everyone stopped talking. And after he stopped talking, everyone said, well, as Justice Kennedy wisely pointed out. I understand the alternative approach, as Justice Kennedy wisely pointed out. I understand the alternative approach, which Justice Kennedy was referring to. Here's another way you might think about the excellent point Justice Kennedy just made.

And as Justice Kennedy's question pointed out, if it only includes... Everyone was angling for his vote because it was the key vote. For the reasons that are pointed out by Justice Kennedy's question, because if it can be... So they deferred to him because they needed his vote to decide which way each case was going to go. I'm sure they liked him a lot as a guy also, but they very much cared about getting his vote, yes.

Given how unique Kennedy is, given his swing vote power in this court, and how much his colleagues deferred to him, why do you think he decided to retire? He's 81 years old. I think in some sense he was running out of steam. Hmm. And why now, given that the president that will be appointing his replacement is not as ideologically nuanced as he is? Well, partly because the next president won't be either. There's not a president who will be able to replace Justice Kennedy with a Justice Kennedy. One way to think about it is that justices

like to try to retire under presidents who will appoint someone who will carry on their judicial legacy. Justice Kennedy would have been incapable of doing that under any president. President Obama would not have appointed someone who would vote like him, and President Trump won't appoint someone who votes like him, because while most of the justices are fairly closely identified ideologically with the president who appointed him or her, Justice Kennedy was in this weird and therefore very powerful center spot. center spot. Do you think that we will ever have a justice like Anthony Kennedy again, somebody capable of ideological flexibility like this? These days, ideology is so closely vetted by presidents and the people they put on the court, Robert, Salido, Sotomayor, Kagan,

Gorsuch are such reliable proxies for the presidents who appointed them that we would have to have a very, very different America to produce another Justice Kennedy. Adam, thank you very much. Thank you. Good to be here. Adam, thank you very much. Thank you. Good to be here. We'll be right back. Good morning. Everybody, please have a seat. Of the many powers and responsibilities that the Constitution vests in the presidency,

few are more consequential than appointing a Supreme Court justice, particularly one to succeed Justice Scalia, one of the most influential jurists of our time. Cheryl, where does this story start for Senate Majority Leader Mitch McConnell? So, Michael, today represents the culmination of a plan that Mitch McConnell set in motion back in around March of 2016, when Barack Obama was still in the White House and Republicans had control of the Senate. Cheryl Stolberg covers Congress for The Times. And you'll remember that Antonin Scalia,

the former justice of the Supreme Court, had died a month earlier. And this was a huge opportunity for President Obama, a Democrat, to basically flip a seat and change the math on the court, which could really affect the court's rulings for generations to come. And today, after completing this exhaustive process, I've made my decision. I've selected a nominee who is widely recognized not only as one of America's sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness, and excellence. He picked Merrick Garland, really kind of a moderate, almost centrist Democrat who President Obama thought would be palatable to Mitch McConnell and the Republicans who controlled

the Senate. It is tempting to make this confirmation process simply an extension of our divided politics. The squabbling that's going on in the news every day. But to go down that path would be wrong. I simply ask Republicans in the Senate to give him a fair hearing. And then an up or down vote. But it did not work out that way. If you don't, then it will not only be an abdication of the Senate's constitutional

duty, it will indicate a process for nominating and confirming judges that is beyond repair. It will mean everything is subject to the most partisan of politics. Everything. It is the president's constitutional right to nominate a Supreme Court justice, and it is the Senate's constitutional right to act as a check on a president and withhold its consent. McConnell and the Republicans basically came up with a brilliant strategy to block the confirmation of Garland by simply denying him a hearing.

On the grounds that a presidential election was in progress, the voters were going to decide who would be the next chief executive of the country. The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate somebody very different. Either way, our view is this. Give the people a voice in filling this vacancy. We ought to wait until voters weighed in

and made that decision to give the next president an opportunity to pick a Supreme Court justice. Let's let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be. And it was absolutely infuriating to Democrats. What the majority leader did to Merrick Garland by denying him even a hearing and a vote is even

worse than a filibuster. They feel that Mitch McConnell stole a Supreme Court seat from Barack Obama. They feel that it was wrong. When McConnell deprived President Obama of a vote on Garland, it was a nuclear option. The rest is fallout. But as obstructionist as this was, nobody in Washington thought really that this was going to have any kind of payoff because everybody expected Hillary Clinton to win the presidency. And in fact, there was a lot of discussion that Hillary Clinton might pick her own nominee, somebody who would be more liberal than Merrick Garland. So Democrats are furious

with McConnell, but they're not really afraid that this is going to change much. I think that's right, Michael. Will you appoint, are you looking to appoint a justice who wants to overturn Roe v. Wade? Look, here's what's going to happen. I'm going to put, I'm pro-life.

The judges will be pro-life. Do you want to see the court overturn Roe v. Wade? Well, if we put another two or perhaps three justices on, that's really what's going to be, that will happen. And that'll happen automatically, in my opinion, because I am putting pro-life justices on the court. So when do we see this McConnell maneuver start to pay off? Not just be a stalemate, but become a victory for him?

Well, the minute Donald Trump got elected president, that was a huge turning point, because now we were going to have a Republican in the White House, and not just any Republican, but a Republican who ran on an explicit platform of promoting and nominating conservative jurists. Millions of voters said this was the single most important issue to them when they voted for me for president. I am a man of my word. I will do as I say. Something that the American people have been asking for from Washington for a very, very long time.

So literally within days, less than two weeks of taking the oath of office, President Trump makes good on that promise and he nominates Neil Gorsuch. And I would like to ask Judge Gorsuch and his wonderful wife, Louise, to please step forward. Please, Louise, Judge. Here they come. Here they come. So attention immediately turns to the next appointment or the next vacancy on the court because it was clear that that would likely be an opening that would change the nature or shift the balance on the court. Right, because if another seat opens on the court with a Republican president in power, no matter what, it's good for Republicans.

If it's a seat already held by a conservative, things stay the same. If it's a Democrat, they get a pretty rock solid 6-3 majority. And if it's Kennedy, then they can replace him with a conservative who will vote in lockstep, which solidifies a 5 to four majority. That's exactly right. So this plan that McConnell had really has kind of succeeded beyond his wildest dreams. And there was no way that he could have known at the time that it would work because nobody thought

that President Trump was gonna be elected. Huge piece of news this Wednesday afternoon. Jessica, what are you learning? Well, Brooke, some news just coming across right now from the Supreme Court. After the final day of the term and a few hours after some of those final decisions, we have just learned that Justice Anthony Kennedy will be retiring. You are going to see 20 states pass laws banning abortion outright, just banning abortion because they know that there are now going to be five votes on the Supreme Court to overturn Roe v.

Wade. And abortion will be illegal in a significant part of the United States in 18 months. There is just no doubt about that. And that's why these seats matter so much. Roe v. Wade is doomed. It is gone because Donald Trump won the election. So you're on the Hill today. In fact, we're talking to you from the Senate gallery. What was it like there when the news came that Justice Kennedy was retiring? There was sort of two reactions. The first reaction was, oh my God. And the second reaction was, are Democrats going to try to do what McConnell did to Garland?

And what do we know about whether Democrats are going to try to do to the next nominee what McConnell did to Garland? Well, Chuck Schumer, the Democratic leader, quickly got on the Senate floor and tried to make the case that Republicans should wait to consider President Trump's nominee. Our Republican colleagues in the Senate should follow the rule they set in 2016, not to consider a Supreme Court justice in an election year.

Millions of people are just months away from determining the senators who should vote to confirm or reject the president's nominee, and their voices deserve to be heard now as Leader McConnell thought they should deserve to be heard then. Anything but that would be the absolute height of hypocrisy. He's trying to play a McConnell game, but he doesn't have the authority. He doesn't have the power to play the McConnell game because Democrats are not in control. The Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump's nominee to fill this vacancy. And McConnell was very quick to promise. We will vote to confirm Justice Kennedy's successor

this fall. That the Senate would vote on a new Supreme Court nominee before the midterm election. Before the midterm election. Before the midterm election. Yeah. And what's the strategy behind getting it done before the midterms? Well, for one thing, he's got control of the Senate right now. Who knows what will happen after the midterm elections if Democrats gain control of the Senate? We'd see a very different nominee from President Trump because he would be unlikely to get a very conservative nominee through a Democratic Senate. And the other thing is, it becomes a campaign issue. You know, any Supreme Court fight on Capitol Hill always energizes the base of the party. So it's something that tends to pull candidates to the extremes. Progressive Democrats will be very motivated over this, just as conservatives

were motivated to vote for President Trump in 2016. So if all signs point to this getting done before the midterms and Republicans have control of Congress, is there a scenario in which this new justice nominated by President Trump somehow is not confirmed before the midterms as McConnell wants and plans? So there's a couple of things that could happen. First, President Trump could nominate somebody who's not acceptable to Republicans. The president has a history of sometimes nominating people who really haven't been adequately vetted. I think that's unlikely. The second scenario is that Republicans could defect, and some of them could join over with Democrats to block the nominee.

And everybody knows that the big fight, the big question is whether or not Roe v. Wade is going to survive. The stakes are really, really high. And so the question is, which Republicans care enough about Roe v. Wade to want to abandon their party and jump over to the other side with Democrats? And you know who it is? It's Senator Susan Collins of Maine and Lisa Murkowski. So two Republican senators who happen to be women, who Democrats believe might choose the issue of abortion over fidelity to their party at a moment as big as a Supreme Court nomination. That's right. And already today, you could see Senator Schumer, when he was delivering his really impassioned speech on the Senate floor, was looking over at Lisa Murkowski and Susan

Collins. And you could almost see the wheels turning in his head that he was plotting to figure out how he was going to bring them over to his side. And there is going to be a lot of pressure on the two of them in the days to come. It's interesting, like Justice Kennedy in the Supreme Court, here again, huge questions about the future of the United States may lie in the hands of this tiny fraction of Congress that still makes decisions, that can still swing either way, that has some degree of independence that's separate from the expectations of their party. Yeah. And these two women, Collins and Murkowski, are really the rarest of the rare birds in Washington.

Much like Justice Kennedy, they are willing to break with their own party when they sense a higher calling to do so. Gerald, thank you very much. Thanks, Michael. Here's what else you need to know today. On this vote, the ayes are 121, the nays are 301. The bill is not passed without objection. On Wednesday, the House voted down an immigration bill called for by President Trump

that would end the separation of families at the border, fund the president's border wall, and offer a path to citizenship for DREAMers. If H.R. 6136 were presented to the president, his advisers would recommend that he sign it into law. House Republicans had postponed a vote on the bill last week, hoping to gather more support, but still fell far short despite a last-minute plea from President Trump. But you don't have to listen to his advisors. You can listen to the president himself, because he tweeted this morning, president himself because he tweeted this morning, House Republicans should pass the strong but fair immigration bill in their afternoon vote today. Even though the Dems won't let it pass in the

Senate, passage will show that we want strong borders and security while the Dems want open borders, which equals crime. Win. The bill's failure leaves the long-term fate of dreamers and families separated at the border in limbo. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.