On Thursday’s edition of the Political Gabfest, Emily Bazelon, John Dickerson, and David Plotz discussed the political and historical implications of Supreme Court Justice Anthony Kennedy’s decision to retire from the bench. The excerpt from the show below has been edited and condensed for clarity.
David Plotz: What does Kennedy’s resignation mean for the court? Is Roe v. Wade dead?
Emily Bazelon: Kennedy’s resignation is just a huge thunderclap of an event for the Supreme Court. It probably means the Supreme Court, as we know it, will transform. Kennedy has been the swing justice for 12 years, since the retirement of [Justice] Sandra Day O’Connor, and in occupying that center role, he moved the court to the right from where it was before. But he didn’t move it always to the right, and he didn’t move it giant steps to the right. And his exceptions happened to be causes that liberals deeply cherish. So Kennedy will be remembered as the champion of gay rights, in a way that’s deeply important to civil rights and to progressives in the country.
He also protected the right to abortion in two really important ways. He was part of this compromise with O’Connor and former Justice David Souter in 1992 when he had the vote to either overturn Roe or fundamentally change it. He didn’t. He opted to protect its core, and then in 2016 there was a big case, Whole Woman’s Health, where lots of state restrictions were purporting to protect women’s health, and Kennedy joined the majority in seeing through that and seeing that the notion that closing clinics helps women and protects their health has no factual basis.
His other really important progressive set of moves has been in the area of criminal defense, where he helped end the death penalty for people who commit crimes as juveniles and for people who are intellectually disabled. Recently, he’d called into question the constitutionality of prolonged solitary confinement and had importantly ruled against California in a case about their terrible overcrowded prison conditions.
So there were these sets of concerns he had that mattered a great deal to the left and made him seem like a kind of—I used the phrase guardian angel when I was writing about this [on Wednesday]. He was a super fickle guardian angel because most of the time he delivered the kinds of fifth votes that we saw this week, where we’re talking about the electoral process, whether to make the vote harder or easier to access—Kennedy sided with the conservatives consistently.
There’s just no question that a Trump appointee will be more reliably consistently conservative than Kennedy will be. So yes, Roe v. Wade and the right to abortion [are] on the line. It could change in a couple ways. The court could outright overrule Roe or perhaps more cleverly, and more in the kind of canny style of Chief Justice John Roberts, it could just whittle away at Roe and gut it in a way that maybe would create less of a political backlash.
We are in for a real sea change in American law. It’s going to be a roller-coaster ride when this new justice gets appointed. And of course that means we’re going to have a huge fight over this nomination.
Plotz: “Roller-coaster ride” implies it goes in more than one direction. This is just going down. This is the down part or the up part, depending on your point of view.
Bazelon: Maybe I should say from my point of view, it’s going to be a very rough, rough ride to watch. And to live.
Plotz: John, let’s talk a little bit about the political machinations here. Famously, and in probably the most successful political gambit of our lifetimes, Mitch McConnell kept that seat that [Justice] Neil Gorsuch occupies open. He refused to allow any hearings. He refused to allow a Senate vote in 2016 [and] said the elections had to happen. Now there’s an election coming in only  days. There were  days when [Justice Antonin] Scalia died. There’s no chance that Mitch McConnell is going to delay a vote in this case, is there? Is there anything the Democrats can do to stop or slow or inveigle the appointment of a Supreme Court justice that Donald Trump wants?
John Dickerson: I think the short answer for Democrats at the moment is there’s not much they can do. Other than to deny unanimous consent for anything to go forward in the Senate—that’s the burning-the-ships move. The Senate would have to just stop functioning, period.
Bazelon: What needs to be done between now and November?
Dickerson: I guess what needs to be done is you’ve got [Sens.] Heidi Heitkamp and Jon Tester and Claire McCaskill all running in the states where Democrats think they have a chance to hold those seats, and their electorates are more conservative than they would be, and that electorate would probably not take kindly to shutting down the Senate completely. The benefit you would get from rallying Democrats by taking such a move would, in those redder states—the nine that are red states where Trump won—it probably would backfire on those candidates. Then you’d probably have somebody, like Heitkamp, [who] would bolt, and then the story would be Democratic infighting.
Bazelon: Politically, it’s not viable.
Dickerson: And also they do want some stuff. Democratic senators in particular, on things like appropriations bills and things like that, do want things. They are a particular of the normal quote-unquote “functioning” of the Senate.
Plotz: But also let’s assume they decided to deny unanimous consent, and they were able to delay things such that nothing was able to happen. That presumes that the Senate composition would change enough for the Democrats to control that. They don’t think they’re going to control the Senate in 2019, do they?
Dickerson: It’s like a 100-to-1 shot. Because they not only have to hold all their seats, they’d have to then beat [Dean] Heller in Nevada.
Bazelon: He looks vulnerable in the polls.
Dickerson: Maybe. But you’d have to run the table. And we should note that any Republican who needs to be encouraged to turn out, this is [a] turnout mechanism for Republicans. If it is dealt with before the election, it still is a tidy reminder to Republicans, many of whom voted for Donald Trump only for this reason—that he could name people to the Supreme Court—that he has a shot to name people to the Supreme Court in perhaps two other instances if [Justice] Ruth Bader Ginsberg or Justice [Stephen] Breyer retire. So he’ll need the Senate to confirm that, and they’ll need a majority in the Senate for those years, 2019 and 2020, and so would even further lock in conservative control of the Senate. Republicans will turn out in strong numbers if they follow the behavior that they followed in 2016, where they had doubts about the presidential nominee of their party but they overcame those doubts for the purposes of gaining control of the Supreme Court. That bet paid off for them—it’s paying off quite handsomely.
Bazelon: And it would seem to help Republicans either way in the sense that Democrats have already been energized and so now this is the kind of issue that, traditionally, Republicans have been more energized about.
Plotz: I guess I’m not sure I necessarily agree with you about that, Emily, in the sense that, I think, if there’s no justice confirmed by Election Day, that’s a huge turnout mechanism for Republicans. And it almost certainly helped them in the election, particularly in redder states in Heidi Heitkamp’s race or in Claire McCaskill’s race. But if there’s a very conservative justice who is put on the court in the next month and is perceived to have been jammed through, yes, Democrats are already motivated, but they can be even more motivated. I think that will surely, surely be helpful.
Dickerson: I think that’s right. I don’t know how we’d play this out, but given that it’s likely to go through, how then, if you’re [Senate Minority Leader] Chuck Schumer and the Democrats, do you play this politically in a way that kind of allows this to move through the bloodstream? In other words, there isn’t a fight.
Bazelon: No, they have to have a fight. Their base will absolutely clobber them if they don’t. I’m not sure about shutting down the Senate. I’m gonna be agnostic about that. But this is the Supreme Court. This is for generations.
Plotz: Emily, let’s go back to Kennedy for a little bit. What real, practical difference do you think his retirement makes? Certainly on abortion rights, it’s a huge shift because, undoubtedly, whoever comes in will be much more opposed to abortion rights than Kennedy is. But on the other issues, he’s been very conservative on almost everything else. So is his loss gonna make that much of a difference?
Bazelon: Two things: It matters a lot what the reasoning is behind votes—not for the outcome in that particular case, but for what happens next. And Kennedy was mediating, slow, like a simmer. He was not someone who liked to make everything happen rapidly and turn up the water to full boil immediately, in the way that Justice [Antonin] Scalia famously was. He was an incrementalist. And so there are ways in which behind the scenes, he tempered the kinds of rationales that the conservatives used for their 5–4 votes.
For example, he did vote to uphold these racially gerrymandered redistricting maps in Texas this week, but Neil Gorsuch and Justice [Clarence] Thomas wanted to argue that the Voting Rights Act doesn’t apply at all in redistricting. That’s a question that was originally settled in 1968. The court has assumed that the Voting Rights Act matters to redistricting for all those 50 years, and there’s a whole body of law. And if the court decides that is no longer the case, that’s a huge seismic shift in law, instead of just a decision against the plaintiffs in this one case that a different majority of the Supreme Court could easily move away from.
The second is the abortion part of this. I wonder what you guys think of Jeff Toobin and Elie Mystal, who was saying when I was on the radio with him on Wednesday—they were arguing that between 20 and 24 states are gonna outlaw abortion. Because what was standing between them and having that outcome was the presence of Justice Kennedy—the knowledge that a district court would stop that law from going into effect because the Supreme Court would strike it down. And now that is gone.
Jeff and Elie were arguing that within a year and a half or two years, we’re gonna have a country where there are huge swaths where there are no abortion clinics and women have to travel vast distances to have access to abortion. Now, because Roe v. Wade has been such a divisive issue for so long, I guess you could argue that maybe that kind of traveling and that kind of lack of access will either galvanize people politically in a different way or heal this breach in the country. But on the other hand, at least to me, I just don’t know how women are supposed to live in a society without a right to end their pregnancies and still be free human beings on the planet. I wish I could come up with that idea, but I can’t. And so that part of it alone seems worth really thinking through.
I wonder, John, what you think about the politics of that. In those states that now have that freedom to make this move, in those legislatures, how many of them will it really be politically popular to ban abortion? Certainly they’re a whole bunch, but I wonder what the count will end up being?
Plotz: There are 17 states that have automatic triggers such that if the Supreme Court overturns Roe, abortion’s automatically outlawed in those states. So there won’t even be any process—it will just happen.
Dickerson: Emily, tell me if this is right, but of the 13 cases in which there were 5–4 decisions [this term], Kennedy voted with the conservatives in all 13.
Bazelon: Yes. It is a very funny moment for liberals to mourn Kennedy. He delivered nothing for them this term. And you know, to me the most important thing the Supreme Court is doing are the cases that affect the electoral process, and the chances that we’re gonna have of a free and fair vote. And on all of those cases, and not just this term, he voted with the conservatives. And this year he had teed up, with great fanfare back in 2004, a challenge to parties in gerrymandering. He looked like he was just waiting for some social scientist to come up with a valid measure so that he could intervene and stop both parties from redistricting in a way that turns partisan advantage to an extreme sport. There, when faced with these cases from Wisconsin and Maryland, which were well-positioned for a big decision, he totally punted, and there’s just no question that his replacement is going to close the door to partisan gerrymandering challenges.
Plotz: We live in a country where increasingly it is incredibly difficult for women to get access to birth control. Then at every turn someone is trying to prevent them from doing it. The pharmacist declines to fill the prescription. The employer is saying they have [a] religious objection to it. Their insurer won’t cover it. And now, it’s the constraint on abortion, the constraint on abortion drugs. Or, if you do want an abortion, being delayed, having to sit through some nonsense lies about the effects [of[ abortion on you. I don’t know why women who have to consider the possibility of childbearing, either because they want to do it or they don’t want to do it, why they’re not enraged, and every single one of them isn’t voting on this issue. It’s insane to me.
Bazelon: Some women are enraged. There are a lot of women who think abortion is sinful, and they don’t support access to it. And sometimes when they’re confronted with an unplanned pregnancy in their own lives or families, and they change their mind, and sometimes they don’t. I don’t think women are united on this front at all.
Plotz: But it’s not just abortion. It’s birth control. Make abortion illegal, but let me have birth control so I don’t have to get pregnant.
Bazelon: Right. And there is almost no space to stand in this country where people say, “I believe in outlawing or restricting abortion, but I want to make the most effective forms of long-acting contraception as available as possible.” Please, yes, let’s make it really easy and cheap for everybody to get IUDs and other long-acting contraceptives. No, that contingency doesn’t exist. Look, you’re right that women’s sexual freedom is on the line. And that there are ways in which the Trump administration has been nibbling away at it in terms of reducing funding for Planned Parenthood, the nonabortion work Planned Parenthood does. And you’re also right about contraception becoming harder to get or harder to pay for. And maybe this will produce a kind of groundswell of women, more women seeing that it’s our lives that we need to be thinking about and voting on.
But I think it’s complicated. I think people’s ideas about all of these issues get baked into their more tribal identities. And the women who are supporting President Trump feel like he is embattled. They feel like he’s their guy. They’re culturally alienated from a lot of the people on the pro-choice side of the equation. And people who stay home might feel like this is really a reason to go vote. I just wish I wasn’t so worried about the ways in which we’re making it harder for them to vote.
Dickerson: Can we just tally for a moment the possibility here on the court and what it could mean depending on the way the 2018 election rolls out [that Trump] will have named 20 percent of the court? The court will be a locked-in conservative court. You see a president who has unity and power of a kind we haven’t seen—I think, you certainly go back to Johnson, but Johnson was making more deals with Republicans in some cases. He had a split Democratic Party that he had to massage and deal with and handle. There is no split like that in the Republican ranks of any consequence for President Trump. So [there] is really potential for an extraordinary historical consolidation for the president, if his Republicans retain control of the House and the Senate.
Plotz: [The court] has very strong approval ratings, and it’s been seen as a fairly neutral arbiter, even though it’s been fairly conservative, for a long time. But it’s largely because of Kennedy’s presence as a counterweight to a lot of what people see as the excesses of both left and right. I do worry that the concretization of the court as a conservative institution is going to be pretty damaging to people’s sense of democracy as a whole. On the left, people are going to be very skeptical because you have this incredibly expansive executive, you have a totally supine Congress that will not do anything, and then a court which is affirming that which the president and that which conservatives want to do. That could be quite disillusioning. I worry about that.
One of the things I hear Democrats talking about now, Emily—and I don’t quite understand it because I thought this was a New Deal failure and it was illegal—is expanding the size of the court so that it’s clear that Democrats cannot overturn the conservative majority by the usual means because unless they can force Justice Thomas to retire with a Democratic president, they’re not going to be able to do it. So there’s a discussion about making it a bigger court. Is that realistic?
Dickerson: How does that happen?
Bazelon: They just could put more people on, the same way FDR tried.
Dickerson: But how?
Bazelon: The Constitution doesn’t specify the number of justices. It would be a hugely out-of-order move, right?
Dickerson: That’s what I mean. I get the theory, but other than having a magic wand, how does it go?
Bazelon: The practice is what Mitch McConnell did. You think of it as a counterpoint. You think of it as Mitch McConnell broke all norms, played constitutional hardball by refusing to give Merrick Garland a hearing. The only way to retain and to restore balance on the court is to add some new justices.
Dickerson: I get that, but that requires getting control of the Senate back.
Bazelon: You need the presidency and the Senate.
Plotz: If you have the presidency and the Senate, is it a trivial thing?
Bazelon: It’s highly untrivial. Do you mean if it’s possible?
Plotz: Is it just matter of saying, “I nominate our 10th Supreme Court Justice Bazelon, our 11th Supreme Court Justice Dickerson”?
Bazelon: I don’t see what the legal barrier is to it. And maybe there is one that was put in place after FDR’s court packing, but there’s no constitutional amendment that specifies the number of justices, so I don’t think so. I think we’re just talking about deeply embedded norms and expectations and politics. This in itself, this conversation being live, is a kind of check and restraint on the court because Chief Justice Roberts, while a far more conservative figure than Justice Kennedy, cares about the image of the court. He does not want his legacy to be the court going down in flames and becoming this wholly partisan institution.
What he is going to try very hard to do when he gets his reliable fifth vote is to write the kinds of opinions that do a lot of change without seeming to do a lot of change. So I don’t think that Roe v. Wade will be directly overturned. I don’t think those trigger mechanisms in those 17 states will go into place. I think he will open the door for states to pass laws that effectively close down clinics and eliminate the right that Roe has preserved, but I don’t think it will be the kind of direct acts of aggression that would put the court so out of sync with the country that you end up with something like court packing.
One more thing
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