Justice Kennedy Becomes the Key to the Supreme Court

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Supreme Court Justice Anthony Kennedy testifies before the Senate Judiciary Committee on Capitol Hill in Washington D.C., on February 14, 2007. Ilya Schapiro writes that once another conservative has been appointed to the court, Justice Kennedy will be the “swing justice” on most controversial issues facing the court, making him the biggest winner of the Trump election victory. Kevin Lamarque/reuters

This article first appeared on the Cato Institute site.

Some thoughts, with thanks to Josh Blackman for getting the ball rolling:

  • The Merrick Garland nomination is dead. Does this mean that Trump will indeed pick someone from his list of 21 potential nominees? That list was perhaps most notable for including 9 state jurists; will we get one of those on the Supreme Court for the first time since Sandra Day O’Connor was picked in 1981?

  • Senate Republicans’ strategy of not even considering D.C. Circuit Judge Garland, of letting the American people decide who gets to fill Scalia’s seat, worked. Not only that, but it didn’t at all hurt vulnerable senators running for re-election.

  • Anthony Kennedy will almost certainly continue to be the “swing justice” on most controversial issues; he may have been the biggest winner last night.

  • I feel sorry for Garland, a respected jurist and honorable man who’s been in limbo for nearly eight months. That said, this wasn’t about him and I would’ve advised voting against him.

  • An open question is what happens when Trump realizes that the sorts of judges he’s been advised to appoint would rule against him on various matters.

  • 11_10_Trump_Court_01 Interns with media organizations run with the decision upholding the Affordable Care Act at the Supreme Court in Washington June 25, 2015. Ilya Schapiro writes that Justice Anthony Kennedy will be the “swing justice” on controversial issues; he may be the biggest winner of the Trump victory. Joshua Roberts/reuters

  • If you live by executive action, you die by executive action—which means that many high-profile cases looming on the Supreme Court docket will simply go away. DAPA (executive action on immigration) and the Clean Power Plan will be rescinded, religious nonprofits will be exempt from Obamacare, Trump’s HHS won’t make the illegal payments that have led to House v. Burwell, and more. That may include the transgender-bathroom guidance, which if rescinded would remove the biggest controversy from the Court’s current term.

  • With the election of (my friend and University of Missouri law professor) Josh Hawley as Missouri’s new attorney general, the not-yet-scheduled Trinity Lutheran case will likely be settled.

  • The New York Times editorial board better include, “It turns out that Ilya Shapiro was right” in its editorial urging senators to reject Trump’s judicial nominees. Also, I can’t wait for the Paul Krugman column making that point.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.