Stare decisis
The retirement of Justice Kennedy threatens a full slide toward a partisan Supreme Court.
It’s hard to imagine now, but Anthony Kennedy was unopposed in his Senate confirmation to the U.S. Supreme Court. He was the last justice to earn that kind of support.
For some, the announcement Wednesday of his planned retirement was met with fears for the future and mourning for an era soon to live only in history books.
Kennedy is seen as the court’s swing vote. The term swing — like something children do from old magnolia trees — denotes a kind of freedom. A movement of the mind, limited by law and precedent, yet not locked in by rigid ideology or partisan obligation. The 81-year-old represents a time when the court could claim to have aspirations of apolitical rumination and earnest debate over questions of jurisprudence. In the past several decades, the nation’s highest court has undergone a steady metamorphosis toward becoming just another political body — a transformation guided by forces both internal and external.
It would be too much to hope for Democrats and Republicans alike to yearn for a nominee whose agenda is largely free of partisan norms. It would be quixotic to yearn for a justice with a deferential respect for judicial norms — a nominee in the mold of David Souter.
A George H.W. Bush appointee, Souter was considered an odd duck even by standards of the federal judiciary. He wrote with a fountain pen, ate the same thing for lunch every day — a cup of yogurt and an entire apple, including the core and seeds — and lived in a New Hampshire farm home previously owned by his grandparents. But to judicial scholars, what stood out about Souter was his reverence for stare decisis — “to stand by that which is decided.”
He was reluctant to overturn prior cases and relied heavily on the opinions of past judges. It was a philosophy that treated the court as an institution above the other two branches, beyond the reach of partisan winds.
As Jeffrey Toobin wrote in “The Nine”: “Souter put his faith in the common law, the accumulated wisdom of judges and courts going back to the Middle Ages.”
The majority on today’s court often seems to put faith in itself. Five justices — including Kennedy — had no qualms overturning a 40-year-old precedent of protecting dues for public unions in Janus v. American Federation of State, County, and Municipal Employees. For years, right-wing groups have worked to craft a universal judicial philosophy that largely works to further political ends. It is a philosophy that conveniently both embraces and rejects judicial activism based on the outcome.
This editorial board, like Justice Souter, also believes in stare decisis asa virtuous starting point. And as we’ve said before, Supreme Court nominations are the president’s to make. We’ve also said that opponents have the right to push back. The Senate has rejected nominees from Lyndon Johnson, Richard Nixon and Ronald Reagan. Harriet Miers under George W. Bush withdrew herself from consideration. Each of those moments was a mix of partisan positioning and earnest critique of individual candidates.
What Republicans did in the final year of the Obama administration, however, was different. They didn’t simply try to block nominee Merrick Garland. Instead, they refused to accept any candidate, no matter how well qualified. It was a strategy that elevated the lowest instincts of partisan politics to the highest court — a strategy echoed by U.S. Sen. John Cornyn, R-Texas, when he tried to eliminate seats on the D.C. Circuit Court of Appeals rather than vote on Obama nominees.
Now some Democrats offer rumblings of their own corrosive strategies in return: Impeaching Trump-appointee Justice Neil Gorsuch, adding new seats to the Supreme Court to dilute conservative influence, and denying hearings for the president’s judicial candidates because Trump failed to win the majority of the popular vote.
If you view politics as a winner-take-all game of tug-of-war, it only makes sense to pull harder. It’s also the quickest way to drag the judiciary down from the heights to which Souter aspired.
Maybe it was inevitable that a man so disconnected from contemporary culture — he supposedly never owned a TV — would see his judicial philosophy so easily dashed. Perhaps his vision of civil society is just one of those jingoistic fairy tales that you tell kids alongside stories of George Washington chopping down a cherry tree.
Meanwhile, the adults know the truth: Politics isn’t about ideals; it’s about power.
“I am not a pessimist, but I am not an optimist about the future of American democracy,” Souter said in a 2012 interview. “We’re still in the game, but we have serious work to do, and serious work is being neglected right now.”
We wait to see, not necessarily with bated breath, whether Washington’s powerful heed Souter’s warning.