Supreme Court Justice Anthony Kennedy announced June 27 he will be retiring at the end of July. Kennedy's retirement prompted President Donald Trump to nominate a replacement for him, making this the president's second replacement on the Supreme Court after the death of Justice Antonin Scalia in 2016.
Scalia was one of the greatest minds in American history, which made the replacement of him with Justice Neil Gorsuch a notable moment in history. However, the replacement of Kennedy will mean much more for the future of this country.
As the court stands now, there are four fairly-consistently conservative justices and four more obviously liberal justices. Justice Kennedy, however, has landed himself somewhere in the middle. He served as the usual swing vote for the court — sometimes siding with the conservatives, but often also siding with the liberal justices on the court.
For instance, he sided with the conservative bloc in cases such as the recent Trump v. Hawaii (2018), which upheld the president’s travel ban, and again in National Institute of Family and Life Advocates v. Becerra (2018), which struck down a California law that required pregnancy centers to tell women about abortion availability.
However, he has sided with the liberal bloc on the court in landmark decisions such as Obergefell v. Hodges (2015), protecting the right to same-sex marriage, and in Planned Parenthood v. Casey (1992), preserving Roe v. Wade (1973) to ensure women’s rights to receive abortions.
Kennedy’s implicit position as swing voter cannot be underestimated or overlooked. He, in essence, protected the court from party politics. It has not simply been a court that sided with one political party or another, but rather a court that upheld the constitution to the highest degree, separating itself from politics.
This is not to undermine the other great minds on the court, but the difference is that their decisions have almost exclusively fallen to predictable sides of the political divide.
This is why President Trump shouldn't focus on his personal agenda, self-indulgence or desire for a re-election, but rather focus on nominating someone with the same creed, dignity and passion for justice as Kennedy.
The justices of the Supreme Court are doubly-indirectly elected to their offices — they are nominated by the president, who is indirectly elected via the electoral college. This is aimed to keep them away from politics and populist motives and focus on upholding the constitution.
Furthermore, they are elected to terms for life in order to ensure they do not make decisions with political motives for re-election.
Alexander Hamilton wrote the court exists to uphold and secure a “steady, upright and impartial administration of the laws,” which is only possible when the court dissociates itself from political interests and focuses on more objective standards.
During President Trump's campaign in 2016, as an attempt to gain votes from evangelicals and deeply-rooted conservatives, he pledged to appoint a pro-life justice in hopes of overturning the court’s decision in Roe v. Wade — a decision which has been upheld in law for over 40 years and reassured in Planned Parenthood v. Casey nearly 30 years ago. By doing this, he is completely disregarding the original intent of the Supreme Court and overreaching his powers as executive.
President Trump is now pushing his personal political agendas by trying to appoint justices for the sole purpose of rewriting law into his favor. After repeated proof of constitutionality, abortion is legal in this country, and the only way to reverse that decision is to appoint a justice with motivations outside of upholding the constitution.
Our president should not subscribe to the late trend of blindly following a political party for the money or perceived power, and we cannot sit by idly in a state of dead dogma by not doing anything about it.
We must look past the history of oppression, and push forward to equality and recognize autonomy. We are not a homogeneous people; we are autonomous beings with the ability and right to make decisions for ourselves. Justice Kennedy recognized that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and of the mystery of human life.”
He lays out the groundwork to say it is not our job to instill a common morality, but rather we must find it for ourselves.
Thus — as I see it — the reversal of Roe would be a direct obstruction of justice, furthermore making the president’s motives fundamentally unjust.
Appointing a justice to the highest court of appeals for a tenure of life — to affect many generations to come — with hopes that don’t seem to extend further than overturning Roe would be an blatant abuse of power, undermining the trust of the American people.
President Trump needs to find someone who can equate the progress Kennedy left on this nation.
Congress must not use the same motivations as Trump when accepting his nomination. We need to be an active check on the court after one is appointed.
