Today, Explained - The most powerful man in America retires

Episode Date: June 27, 2018

After 30 years on the Supreme Court, Justice Anthony Kennedy announced his retirement today. Slate’s Dahlia Lithwick explains what the departure of the swing vote means for the Court and the country. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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America? It's extraordinary. I mean, really, all I can think is that to the extent that the Supreme Court has had a center since Sandra Day O'Connor retired, he was the center. We effectively had a 4-4-1 court. I want to be clear that didn't make Kennedy a moderate or a liberal. He was certainly very conservative, but I think in one area of the law after the other, he was the swing vote. And to the extent that all of that is going to be up for grabs when a new justice is seated in October, there will not be a center at the U.S. Supreme Court, or maybe to put it another way, the incredibly conservative Republican Chief Justice John Roberts now becomes the median voter at the U.S. Supreme Court. So it's a sea change.

Yeah, I mean, all the talk is about Kennedy being the most powerful man in America because he possessed the swing power. But in the past few days, we've seen him with the conservative bloc on freedom of speech slash abortion, on the union case, on the travel ban. Is this really the Supreme Court losing its swing vote? What were the cases where he was this major force? Well, I think that interestingly, the issues that going forward were going to feel his loss were not on the docket this year. In other words, I think that the key areas where he was the fifth swing vote and not a reliable conservative vote were things like reproductive rights. He voted with the court's liberals to uphold the core of Roe v. Wade. For instance, in the Texas abortion case from two years ago, Whole Women's Health, he voted to uphold an affirmative action program with the liberals.

He has historically voted with the court's liberals to affirm, and this is so important, gay rights, both in Lawrence v. Texas and then most recently in Obergefell, the gay marriage case. And so I think it's very fair to say that those issues on which he was in play, so to speak, were not on the docket this term. And instead, as you noted, on the cases where we thought he might be in play, no go. He either kicked them back and said, I can't decide these, or in some really striking cases, as you said, public sector unions and the travel ban, he voted in lockstep with the conservatives. Who appointed Anthony Kennedy to the Supreme Court? He was appointed by Reagan in 1988. He was, I guess it's worth saying, appointed in the last year of the Reagan presidency, just to the extent that that used to be a thing. What was the makeup of the court then? Did he come on as the immediate swing vote or did that establish itself over time? Yeah, he was not a swing vote because at that point, I think Sandra Day O'Connor was the swing vote. And in all the time that they sat together, he was actually, I think, considered part of the reliably conservative block on the court. And it was, in fact, O'Connor who was seen as the swing vote. But when she stepped down, Kennedy really did become the center of the court. And as I point out, I think it's just worth noticing that the swing vote on the court keeps shifting to the political right, so that it went from, you know, in my career covering the

court, O'Connor to Kennedy, and now will become, I think, probably predictably, John Roberts will be the moderate center. So I'm not really sure. President Trump has fired people via Twitter. How do people retire off the Supreme Court? Is there a formality to it or do you just send an email or what? term this morning after they announced the last two decisions and there was no announcement. Everyone went, phew, I think we've got another year of these nine justices. And then within two hours, there was a letter released, dated today, that Justice Kennedy sent to the president. It begins, my dear Mr. President, this letter is a 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 while continuing to serve in a senior status. And then he just thanks the president and thanks the court for the privilege. You mentioned breathing a sigh of relief. I mean, that's one way some people in

this country were looking at this idea of Kennedy staying on the bench a little longer, right? But I'm sure several Trump voters who voted based on this issue are now celebrating that the president will get another appointment. I just wonder, do we know anything about how Anthony Kennedy feels about the president of the United States? Or do the justices other than Ruth Bader Ginsburg typically keep that information pretty close to the vest? It's such a great question. And I think, you know, when Trump first took office, I think I was apt to think of Justice Kennedy as somebody who would be a little bit affronted and offended by Donald Trump. You know, Kennedy's watchwords that he repeats time and time again are dignity and civility. He really prizes norms.

He prizes institutions. I mean, he really thinks about that constantly. And so, in a way, I thought to myself, Kennedy is one of those people who will be bothered, he will be affronted by a president who not just, you know, is uncivil on Twitter and, you know, mocks handicapped reporters and, you know, talks about predation toward women, but who threatens sitting federal judges, you know, who says so-called judges and who as recently as this past weekend said, oh, all immigration judges, you know, are corrupt and we should get rid of them and there should be no due process at the border.

I would have expected, based on his profile and his character, Anthony Kennedy to balk at that. But I think the two clues, maybe if we work backward, that I was wrong about this are, you know, first and foremost, these words, my dear Mr. President, which certainly suggests that there is a close relationship there. But also, I think that it's fair to say that his concurrence in the travel ban case yesterday, where he effectively said, this isn't a blank check for the president we can do. The law is the law. And I think that that taken together with this, my dear Mr. President, taken together with this retirement really is a way of giving a profound vote of confidence to Donald Trump. He is allowing Donald Trump to pick his successor. And bear in mind, Donald Trump has put up people for the federal judiciary who've

never set foot in a courtroom, who didn't know what a motion in limine is. He's put up bloggers. So the idea that I'm going to sleep easy tonight knowing that Donald Trump is going to replace me is a staggeringly important statement of confidence in the president. And I think if this is the question you're asking, then yes, it's one that slightly surprises me from the decorous Anthony Kennedy that I've been watching for almost 20 years. Donald Trump can appoint anyone to the Supreme Court, one of his sons, his sister, Merrick Garland. Who's he going to pick? That's next on Today Explained. Uber's got goals. One of them is to improve the experience for both riders and drivers.

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If you're having trouble wrapping your head around that, you're going to want to watch today's episode of Explained on Netflix. When Donald Trump was running for president, he released a list of judges that he might appoint to the Supreme Court if elected, right? He did. It was the first time it had ever happened. Nobody had ever done that kind of signaling. It was always considered unseemly for a presidential candidate or even for a president to say, here's who's on the menu. But I think it was, in hindsight, a very smart way of signaling to voters going into the 2016 election that he took very seriously Republican voters' prioritization of the court. And he essentially said, I know you think I'm going to put a Kardashian up. I know you think I'm going to put

Judge Judy or someone up, but I'm going to put up someone that you take seriously. And he unfurled a list of people who had been vetted and approved by conservative groups who think about judges. And it was a very, very smart way of calling out the message that I'm going to take seriously your values, your priorities, and these are the people I will put up. When you looked at the exit polls after the 2016 election, people who prioritized the Supreme Court as their voting issue, broke two to one for Donald Trump, in some part because he had reassured them that he heard them, he got them, he was going to give them what they wanted. And he promptly turned around and gave them Neil Gorsuch, which has proven to be, I think we can say also, at the end of this term, exactly what they wanted. So he

gamed this really well. And knowing very little about these potential candidates, is there some unifying judicial ideology there? Is it positions on Roe v. Wade that he's shopping around for? Is it positions on the Second Amendment? What unifies these people? I think that they tend to be judges who across the boards disfavor Roe. I think it's fair to say, based on the confirmation hearings that we've been watching as they get tapped and confirmed from the lower courts, some of these judges have been unwilling to say even that Roe v. Wade is precedent and was correctly decided. But generally, I think they tend to be opposed to expansive views of gay rights, apt to be opposed to affirmative action, apt to be generally more pro-business than not, with a narrower view of what voting rights may encompass. So I think that they look a lot like Neil Gorsuch and Antonin Scalia, who Gorsuch replaced. I don't think there are a lot of wild cards on this list. People who may turn out to be David Souter who got onto this list but will tend to shift left over their careers. I think that the hallmark of the conservative judicial nomination program has been no more David Souters. In fact, the hallmark has been no more Anthony Kennedys.

And once in a while, the hallmark has been no more John Roberts. So, it's very, very important to have folks who will toe the line. Folks do not get tapped, vetted, and nominated and then confirmed unless they are pretty staunchly in the mode of an Antonin Scalia or a Clarence Thomas at this point. This might be the most Captain Obvious question I ever ask, but is that to say that no one is interested in a justice having nuance anymore? It's all about picking someone who will toe the line on party ideology in the Supreme Court. Well, I don't know if it's kept in obvious, but I think I would say it might be Sergeant Naive. If you think about the programmatic effort and the laser focus that the Republican Party has put on the courts in the past few decades. And, you know, to their immense credit, they've been successful and organized in a way

that the Democrats have not been. The laser focus has been to capture the Supreme Court and to capture the lower courts and to never again allow somebody to be confirmed who will, as I said, turn out to be a David Souter. Which is to say that Souter was tapped by a Republican, but turned out to be a pretty liberal justice on the bench? Exactly. Well, Souter and Stevens are examples of people who drifted so far to the left that when they stepped down, they were the radical left wing of the court.

I will tell you, interestingly, when John Paul Stevens is asked about that, he says, I didn't migrate to the left, the court torqued around to my right. And so, when I came on, I was center right. By the time I left, I was far left because everybody who was to the left of me was gone and replaced by people to the right of me. And if you think about the arc of what we just discussed as the center, O'Connor to Kennedy to John Roberts, that actually seems pretty prescient. The court itself is without a doubt moving to the right. But I will say, I think Anthony Kennedy thought of himself as somebody who was trying to be fair, to hear all sides, and to do justice and not just pull the lever for the side that was his team. I think Barack Obama, when he tapped Merrick Garland, really did think that he was tapping someone who was center left, who would have been slightly to the right of Stephen Breyer, slightly to the left of Anthony Kennedy,

and would have been the justice that you're describing. But the politics of the moment said, no, that guy doesn't even get a hearing. Whomever the president picks, he or she will be appointed, right, with majorities in the House and Senate? Well, that's right. The Democrats, in much the same way they couldn't do anything when Scalia's seat was held open for more than a year, there's truly nothing they can do. And so we'll be looking to see if some of the moderate Republicans, don't forget three of Trump's judicial nominees for the lower courts have been withdrawn. Again, I think one was a blogger and one didn't know the rules of evidence. So there have been occasions where senators like John Kennedy from Louisiana has said like, no, I just, this is a bridge too far. I cannot support this. And I guess we'll be looking to some of those folks to see if they are going to rubber stamp anyone Donald Trump puts in front of them.

But I want to be clear that I don't see a lot of people on this list of 25 on the short list that Susan Collins couldn't pull the lever for. With Ruth Bader Ginsburg being 85 years old, might Donald Trump get to a point three? Absolutely. I mean, Ginsburg has certainly suggested that she is not going anywhere. She's going to keep doing the work as long as she can. Stephen Breyer is the next oldest. He is about to turn 80. And then there were a lot of rumors swirling in D.C. in the last week or two that Clarence Thomas also was getting ready to retire this term to make way for somebody who's 45 or 50 that Donald Trump could get through. So I think the average retirement age for a Supreme Court justice in the last few decades has been 77. So we've just named

a couple who are older than that. And what does that mean for the legacy of the Supreme Court, of the Roberts Court, or whatever it's going to be called for the next generation? Well, I think that the legacy will be, and we're seeing it at the end of the term with some really explosive cases. I mean, I cannot put too fine a point on what the Janus decision today will do to the future of public sector unions in the United States, what the travel ban decision yesterday will do for the vision of executive authority in national security matters. I think that this is a court that is no longer in a posture of mincing along, taking baby steps, minimalist, humble decisions. I think this is a court that is pretty overtly and programmatically going to effectuate what the Republican Party has wanted

in terms of voting rights, in terms of worker rights, in terms of voting rights, in terms of worker rights, in terms of the environment, in terms of women's reproductive rights and gay rights and the rights of minorities. I think that it is hard to envision a scenario in which we have anything other than a possibly decades-long, extremely conservative Supreme Court. There's a study that was done by Richard Posner a few years ago that suggests that in the last 100 years, four of the most conservative justices who have been seated at the Supreme Court are now sitting. So this court is very, very conservative. I don't think that's an opinion. I think that's a fact. And I think it is in some ways possibly more conservative than the mainstream of the country. But I think that we are now locked into that for the foreseeable future. And you're right,

long after, you know, the Senate or the White House or the House changes hands, those justices are seated for life. And so people who are seated in the next term or two who are in their 50s and 60s will be serving on the Supreme Court when our grandkids come into existence. Thank you, Dahlia. You are welcome. Thank you for having me. Dahlia Lithwick writes about the law for Slate. I'm Sean Ramos for him. This is Today Explained. Uber is moving forward, listening to feedback so they can improve and get better with every trip. The company's building new features to take the stress out of your pickup and working on ways to keep you better protected and connected throughout your ride. Find out more at uber.com slash moving forward.