Everyone can calm down
Alexander Hamilton considered the Supreme Court “the least dangerous branch” because it lacked “influence over either the sword or the purse.”
But if we define “danger” as the potential for tyranny flowing from power and absence of accountability for its exercise, then Hamilton’s assessment provides evidence that even great political minds can occasionally be wrong.
As such, it is precisely the court’s dangerously elevated significance in our politics, to the great detriment of our constitutional order, which explains both the despair of liberals and the euphoria of conservatives over the retirement of a justice who wrote some of the most incoherent judicial opinions in our nation’s history.
The left is dismayed and the right heartened because Anthony Kennedy, who consulted his inner feelings to save the right that Roe v. Wade invented and to then invent another right (to gay marriage, in Obergefell v. Hodges), is to be replaced by a more conservative justice nominated by Donald Trump. Which also means that rigorous constitutional reasoning will henceforth be substituted for the arbitrary jurisprudence that Kennedy employed to preserve his status as the court’s “swing vote” and hand the left victories on cultural issues it couldn’t obtain through valid interpretations of constitutional provisions or legislation passed by the people’s representatives.
But the interesting part is that neither the liberal despair nor the conservative euphoria is actually justified, at least not this time around.
First, the odds that Trump can get any of the candidates on his short list confirmed by the Senate are not nearly as good as thought. The oneseat GOP edge means that the fate of any nomination essentially rests in the hands of two pro-abortion Republicans, Lisa Murkowski and Susan Collins, and three Democrats seeking re-election in “red” states (Joe Manchin, Heidi Heitkamp and Joe Donnelly).
That each of them voted to confirm Neil Gorsuch last year is hardly an indicator of how they will now vote when it comes to an Amy Barrett or Brett Kavanaugh. Gorsuch was filling the seat of Antonin Scalia in what was perhaps the closest thing in jurisprudence terms to replication. The longstanding “balance” on the court was unaffected and there wasn’t much heard about Roe v. Wade.
Because there is assumed to be so much more at stake this time around, the pressure on Collins and Murkowski will be much more intense. That they voted for Gorsuch might even provide them (and Democrats like Manchin) with a certain amount of “cover” to now go the other way, to, in essence, “split the difference” on two Trump nominees.
At the least, it is difficult to believe that even endangered red-state Democrats will enrage their party’s base by voting for a nominee who might overturn perhaps the most revered liberal court victory of the past century. And if Collins and Murkowski (along with a spiteful John McCain) were willing to “save” Obamacare, there is little reason to believe they wouldn’t try to save Roe as well.
Second, even if Trump eventually manages to get a genuine originalist on the court, it is by no means likely that that jurist or others in the conservative wing would be willing to overturn Roe. It’s one thing to express criticism of the sloppy legal reasoning in Roe in a law review article, another thing to repeal it in an actual case before the court.
This is especially important when considering that one of the purported principles of originalism, of conservative jurisprudence in general, is fealty to precedent, however regrettable. In stark contrast to “the living Constitution” approach of liberals, which stresses the role of constitutional reinterpretation and activist judges in bending the “arc of history” ever leftward, originalists stress the necessity for stability and hence predictability in the law, personal preferences of judges notwithstanding.
Roe has now been the law of the land for nearly a half-century and however much they might detest the constitutional mischief that it represents, it is difficult to foresee a judge like John Roberts, with his preference for narrow rulings that don’t go any further than necessary, leading a frontal assault upon it.
Any jurist who can politically rescue the individual mandate in Obamacare by reinterpreting a fine as a tax can find a way to avoid overturning the right to abortion.
As of this juncture only Clarence Thomas, the most conservative of the conservative wing, is on record calling for Roe’s repeal.
Finally, any 5-4 court quickly becomes a 4-4-1 court because the temptation for the least liberal liberal or least conservative conservative to fill the “swing vote” role, and thereby become the most powerful person in American politics, is simply too great. Kennedy succumbed to that temptation, nay, reveled in it, at the expense of any kind of principled jurisprudence, but even more principled justices like Roberts will find it hard to resist.
Thus, what liberals have long feared and conservatives pined for—a truly conservative court that will overturn liberal activist rulings— won’t happen with the coming Trump appointment.
No, it can only arrive with the one after that, when 5-4 becomes 6-3, and the swing vote consequently disappears.
Regarding which, Ruth Bader Ginsburg is 85 and Stephen Breyer turns 80 this summer.