Although I think that they’re far too kind to Justice Kennedy, I agree with this observation on the part of the editors of the Wall Street Journal about his departure:
As for the Court after Justice Kennedy, we doubt it will overturn his precedents on abortion or gay marriage. Even with a new conservative Justice, Chief Justice Roberts remains a legal and political wild card, and we use those words advisedly. He will certainly not want the Court to overturn the gay marriage case so soon after it was decided, lest it make the Justices seem too political.
As for Roe v. Wade, the abortion case was a legal travesty and should be overturned. But the Court has upheld its core right so many times that the Chief Justice and perhaps even the other conservatives aren’t likely to overrule stare decisis on a 5-4 vote. The likelier judicial path would be to allow the states modestly more room to regulate abortion while preserving the right.
Our point is that replacing Justice Kennedy should not be the legal war to end all wars. A single Justice will not turn the Court sharply to the right, and Republican Senators should not be intimidated by hyperbolic Democratic claims designed to fire up their voters for the November election.
Trump-hatred and the longing of Democrats for revenge for the Republicans’ slight of President Obama are powerful forces and continue to rankle. Sadly, I don’t think that the editors’ advice will be heeded.
After Griswold v. CT (1965), which guaranteed marital privacy, there was no legal basis for the regulation of any sex act between consenting adults. Next up are legalization of prostitution (standard in EU), legalization of polygamy and polyandry, legalization of pedophilia (See NAMBLA.), and legalization of bestiality.
There is support on the left for all of these, although it is not uniform among lefties. Many feminists oppose prostitution and polygamy, although how that comports with a woman’s right to control her body is unclear. With luck we will hold the line at pedophilia and bestiality, but that requires a conservative Supreme Court.
With any luck, and by the Grace of God, Ginsberg will die this summer before the midterms and give Trump yet another opportunity.
I think it goes deeper than animus towards Trump or Republicans. It’s a battle between constitutionalists and those who view courts as a way to implement political agendas without legislation.
Well, yes. There’s money involved.
You ignore the politics. Trump has won and will continue with a maximalist appeal to his base, relying on a turnout based election. He needs some dramatic events to make his base happy. While he is very good at promoting fake achievements, his base (talk to them) actually believe that we now have a deal with North Korea and they have agreed to denuclearize, he will probably need to do something to make them really happy, especially the evangelicals. I expect him to choose someone as young as possible, as young as Thomas was if possible, and a woman or minority would be great since he will play that well against Democrats. It will be certain that whoever is selected will agree to reverse Roe v Wade. Expect cases to come piling out of the red states. I would expect some minor changes before the 2020 election, but if he wins in 2020, full repeal after winning.
Steve
I agree with that part of your reasoning but disagree with the balance. I think it’s much more likely that a Supreme Court sans Kennedy could uphold more of the states’ restrictions on second and third trimester abortions rather than outright reversal.