The news this week that Justice Anthony Kennedy, above, is retiring from the US Supreme Court is ‘an ominous development for our civil liberties’, according to the Freedom From Religion Foundation, which said Trump’s list of replacements ‘includes the worst of the worst’.
In an article yesterday headed “We’re in big trouble with Kennedy’s Supreme announcement “, the FFRF said:
The Associated Press reports that President Trump has a list of 25 candidates (24 judges plus Utah Sen. Mike Lee), which includes the worst of the worst. There is no question that Kennedy’s replacement, handpicked from this list put together by the arch-reactionary Federalist Society and Heritage Foundation, will mean the beginning of the end for many US civil liberties.
Although Kennedy’s record in keeping state and church separate has been spotty at best, replacing him with another Neil Gorsuch [a Trump apointee} will lead to 5-4 decisions with majority opinions that are far more emphatically hostile to secularism and true religious freedom. We will go from a 5-4 court with Kennedy sometimes swinging to our side, to an entrenched 5-4 ‘anti’ court, leaving only Justices Ruth Bader Ginsburg, 85, Stephen Breyer, turning 80 in August, and the more youthful Elena Kagan and Sonia Sotomayor.
Further, Kennedy was always a hopeful check against the most egregious cases of government actors using their position to promote religion. With his replacement, the court will be more willing to accept cases that will allow it to drastically rewrite state/church law from the last 70 years, confident that it will always have the five votes it needs.
According to the Chicago Tribune, although Kennedy held the deciding vote on many issues, abortion is likely to be the key focus in what is expected to be a bruising nomination battle for his successor.
Trump promised during the campaign that he would try to overturn Roe v Wade. “Well, if we put another two or perhaps three justices on, that’s really what’s going to be — that will happen,” Trump said during a debate.
Forces on both sides of the abortion fight made it clear that they are prepared for battle.
Said Marjorie Dannenfelser, above, President of the Susan B Anthony List, an anti-abortion group.
The most important commitment that President Trump has made to the pro-life movement has been his promise to nominate only pro-life judges to the Supreme Court, a commitment he honored by swiftly nominating Judge Neil Gorsuch. We trust him to follow through on his promise.
But Nancy Northup, President and Chief Executive of the Center for Reproductive Rights, said:
That promise should set off alarm bells for anyone who cares about women – and the Constitution. The future of reproductive rights is on the line.
Others said the stakes are bigger than that.
Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense Fund, said:
This is a monumental moment for our country. The very integrity of our justice system and the rule of law will be affected by the confirmation of a new justice to the Supreme Court.
Kennedy’s legacy probably will be defined to a great extent by the decisions he wrote championing gay rights: striking down discrimination, restrictions on sodomy and the federal government’s position of not recognising legal same-sex marriages.
The culmination was his opinion in Obergefell v Hodges in 2015, in which the court’s four liberals joined him in finding that it violated the Constitution for states to offer marriage licences only to heterosexual couples.
The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.
Thomas Goldstein, a Washington lawyer and founder of SCOTUSblog.com, said:
An already right-leaning Supreme Court is poised to become the most conservative institution in the entire history of America’s government. Justice Kennedy was the last obstacle to reshaping our law on a host of hot-button issues.
CNN legal analyst Jeffrey Toobin predicted that abortion would be illegal in 20 states within 18 months.
Let’s talk about what America is going to be like that’s different. You are going to see 20 states pass laws banning abortion outright. Just banning abortion. Because they know that there are now going to be five votes on the Supreme Court to overturn Roe v Wade.
There was “just no doubt,” Toobin said, that abortion would be illegal in a significant part of the United States within a year and a half.
Roe v. Wade is doomed. It is gone because Donald Trump won the election and because he’s going to have the chance to appoint two Supreme Court justices.