Originalism helps maintain the norm that the Court should follow precedent when there are truly enormous costs of discarding it.
Justice Kennedy, America’s philosopher-king, has announced his retirement. The press is fulminating; so are the politicians. The GOP promise to replace him with a nominee to their liking this autumn. The Democrats are shocked and somewhat powerless to do anything except perhaps motivate their voters for November. Indeed, the coming elections, will teach us just how strong the effects of Kennedy on American partisan politics are.
Isn’t it strange that one unelected man should count so much?
Americans live in a culture than no longer retains political modes of dealing with our most divisive questions. From Obamacare to homosexual marriage, from immigration policy to abortion—when we disagree, our parties, our Congress, and even the presidency collapse, to be replaced by Court decisions, usually written by the philosopher-king now retiring.
This brings up questions we almost always prefer to avoid. How can 320 million Americans even live without Justice Kennedy? The millennial quarter of the nation was as yet unborn when Kennedy took his throne with his decision in Planned Parenthood v. Casey in 1992, reaffirming Roe v. Wade and imposing Kennedy’s philosophy on America. On that bright day, he gave us all the “right to define our concept of existence… and the mystery of human life”—but only he and eight other justices got the right to vote on abortion.
After passing politics on to the Court for so long, we must now ask ourselves: How can we make our laws and enforce them? It would make us Founders almost, learning the rudiments of self-government after servitude to a king! We would have to take incalculable risks and try long-forgotten schemes. We’d have to test the purpose and strength of government, as well as our citizenship.
Do we have the parties, Congress, and presidency for such a test? Nowadays, these once-powerful institutions, all subject to election, are reduced to suing each other and hope the unelected King Kennedy—gives them what they want, out of his own free grace. Where they quarrel childishly, he decides with patriarchal authority. He can tell us whether homosexual marriage is legal and whether Christian bakers are forced to bake cakes for homosexual marriages: The rest of us must obey his will! No elected man or woman has been able to disagree with him! What if elections themselves weaken our politicians?
Now, two paths are open to us. The first is perseverance in obedience: America finds another philosopher-king to hold the balance of power, less flamboyant and more lawyerly than Kennedy, but just as keen to rule a 5-4 Court. The likely candidate, Chief Justice John Roberts, is hated by conservative and liberal partisans alike. The conservative who saved Obamacare can never be forgiven by half the nation—nor can the other half really love him.
President Trump can gain support and awe his opponents by giving conservatives another justice they trust with utmost ease. The Chief Justice could respond by moving to the liberal side of the Court and preserving things as they are. But America would have to face two urgent challenges. First, two other liberal justices are 80 and 85 respectively, and may be forced to retire before 2020. Secondly, the 2018 elections will likely strengthen the GOP Senate majority. Balance on the Court depends on Democrats winning the Senate or the liberal justices enjoying good health through January 2021. It’s possible, but it seems strange for a country of institutions to bet its political balance on such chances.
The second path is the likelier in the short term and inevitable in the long term. A balanced Court is impossible, for three reasons. First, the Court has assumed amazing power to decide the questions that divide us. After 45 years, Americans still hate each over Roe v. Wade. The Court keeps deciding political questions on which we fight elections. Thus, the Court is too powerful now for either party to obey without losing its raison d’ȇtre.
Second, divided government, the rule in this generation, forces the branches of government to fight ever more seriously. What’s worse for balance, wave elections keep happening. These, almost unknown to mid-century America, have changed the Congressional majority and presidency twice in eight years and nobody believes they’re over. The wave of 1994, a novelty then, seems to have been a harbinger of coming strife. This must lead the Court itself into political fights. Its putative neutrality compromised, it cannot be an arbiter between the political choices of America’s two voting blocks. Partisanship is more reliable than possession of any branch of government and so the branches of government must fight each other, unless the parties should seriously weaken.
Third, the age of the justices themselves is threatening to destroy the Court’s continuity. They, no more than other men, retire wisely. They serve uniquely long terms, which makes their power that much more necessary to the parties. At the same time, old age makes them vulnerable to chance and prone to losing control of change. Despite pious lies about neutrality, everyone knows justices choose to retire to give their favored party the choice of replacement. This fiction can only be maintained so long—but it cannot be maintained at all by octogenarians, who can no more predict the results of partisan elections than anyone else. Were justices satisfied to retire when their chosen party is in power, things would be otherwise—but they are not.
These three facts will soon cause a political crisis. We have elections this year, in full knowledge that the 2016 elections decided two Supreme Court seats and that two octogenarians are still on the Court. At the same time, the Court keeps deciding political questions involving the president and the policies on which he was elected. And come 2020, the president will be up for reelection with the near-certainty of more seats opening.
Political strife seems likely, therefore, to overcome the old pieties about the Court’s neutrality. We have no reason to suspect political uniformity, one-party rule like that of FDR’s Democrats will return. We suspect, instead, the Court must lose much of its power to decide political questions for Americans, as it comes under sustained political attack in the press and the other branches of the federal government refuse to obey it. I cannot see why the states will not in some cases disobey. Partisanship, precisely because the parties are weak, cannot impose discipline throughout the federal government, much less the states. But it must arouse hatreds that do not easily die, not least because the prospect of victory and the fear of defeat are so much more urgent in an era of divided government.
It is poetic justice that Kennedy should retire just at such a moment: He was the most audacious justice in his generation to impose his philosophy and the Court’s power in American politics. That his legacy should crumble in his lifetime should teach us to be skeptical about many things we have hitherto believed about the relationship between the powers of government and the indisputable character of judicial authority. We must now begin to fear that law itself becomes more political, open to strife, and in need of deliberations we have forgotten how to conduct, if any calm and confidence is to be restored to the public sentiment. Justice Kennedy had no idea what he was really doing. Worse still, because of him we do not know what to do.
We will not learn in comfort or leisure, but in crisis.