Anthony Kennedy is retiring. Kennedy, appointed by Ronald Reagan after the successful attack on Judge Bork, was known as a "swing" Justice--he might vote liberal, or he might vote conservative.
I recently wrote that
The Supreme Court has upheld Trump's "travel ban" prohibiting people from some but not all Muslim countries from coming to America.
The decisions by various judges blocking it were always crazy--see #NeverTrumper David Frum On Why The Hawaiian Judge Attacking Trump's Travel Order Is Crazy.
The Supreme Court proved to not be crazy...by a vote of 5-4.
Kennedy was one of the 5--the 4 were Sonia Sotomayor, Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan.
Before the election, law professor Mark Tushnet [Email him] wrote a post titled "Abandoning Defensive Crouch Liberal Constitutionalism," about the cases that could be overruled following a Hillary victory and the appointment of a Leftist Justice to the vacancy left by Scalia.
John Derbyshire discussed it here (lengthy quote from him)
With a solid liberal majority on the Supreme Court, justices should, Prof. Tushnet tells us:
- Overrule key cases. Prof. Tushnet offers a list. Head of the list is the 1978 Bakke ruling, that imposed some slight, cautious restraints on Affirmative Action in college admissions, ruling out blatant racial quotas, for example. According to Prof. Tushnet, the ruling amounted to "rejecting all the rationales for Affirmative Action that really matter."
- Deal sternly with what Prof. Tushnet calls "the losers in the culture war." Quote: "The war's over, and we won." Further quote: "Taking a hard line seemed to work reasonably well in Germany and Japan after 1945." This is what tjcfs means by treating us like “Nazis after 1945.” Just to remind you, this is a professor of constitutional law at America's most prestigious law school.
- "Exploit the ambiguities and loopholes in unfavorable precedents that aren't worth overruling." The assumption here is that with Mrs. Clinton in the White House, liberal justices would be able to overrule anything at all; but where it's too much trouble, a precedent should be interpreted with maximum progressive spin.
- Be more ideological! Conservatives are too dimwitted consciously to practice ideological jurisprudence, although the results of their rulings are anti-progressive none the less. Progressives should have their ideology always in mind.
- Be bold and triumphalist, like Justices Brennan and Marshall (Tushnet clerked for Thurgood Marshall in the early 70s)…not timid and accommodating like that squeaky little mouse Ruth Bader Ginsburg, whose "work as a judge has been shaped more than it should be by defensive crouch constitutionalism."
- Stop pandering to Justice Kennedy, whose vote won't be crucial any more.
That's an executive summary of Prof. Tushnet's prescriptions last May at Prof. Balkin's blog. He closes with the following, quote:Of course all bets are off if Donald Trump becomes President. But if he does, constitutional doctrine is going to be the least of our worries.
Oh, I do hope so, Professor!
And a sidebar note here: On that sixth bullet point, the one where Professor Tushnet tells liberals to stop pandering to Justice Kennedy, he doesn't actually use the words "stop pandering." He actually uses an obscene four-letter verb with Justice Kennedy as its object: “F— Anthony Kennedy.” (Italics his, dashes ours.)
All of which is by way of reminding you of the stakes involved in a Supreme Court pick. When Trump nominated Neil Gorsuch, I blogged about it under the heading Neil Gorsuch: Trump Picks White Male Old Stock American For Supreme Court. Trump can do that again.