The Most Powerful Man In America

Yesterday (June 27, 2018), the most powerful man in the country announced his retirement.  No, it wasn’t the President, nor was it the Speaker of the House, the Chairman of the Joint Chiefs or even the Commissioner of Baseball.  No, it was Associate Justice of the Supreme Court, Anthony Kennedy.

So, am I being a little facetious saying he’s the most powerful man in the country?  No, I don’t think so, and here’s why:

The Supreme Court of the United States (SCOTUS) is populated with nine justices.  Four are generally identified as liberals or progressives or activists or some other term indicating a left-leaning mindset.  These are Justices Kagan, Ginsburg, Sotomayor and Breyer.  Four others are generally thought of as conservatives, originalists, textualists or other right-leaning terms.  These would be Chief Justice Roberts, Thomas, Alito and Gorsuch.  This leaves Kennedy kind of in the middle.

For three decades, and even more so after the retirement of Justice O'Connor, Justice Kennedy has been seen by most as the “swing vote” – the one who chooses a side in those 5-4 decisions to make a majority one way or the other.  And that’s what makes him the most powerful man in the nation.  No one else has the influence he does on our nation’s laws and jurisprudence.  Pundits are already arguing about whether Kennedy has such an ego that he put himself in this position precisely because he wanted this kind of power, and I’ll leave the pundits to shout each other down over that.  Have at it.

But what is not debatable is the fact that Kennedy has been powerfully consequential.  Let’s look at just a few of the 5-4 decisions in which he was essentially the tiebreaker:

Decisions “The Left” would generally cheer:

Obergefell v Hodges, which essentially legalized same-sex marriage in the U.S.

Planned Parenthood v Casey, reaffirming Roe v Wade and the legality of abortion (with some restrictions)

Kennedy (not Justice Kennedy) v Louisiana and Hall v Florida, placing restrictions of capital punishment

Decisions “The Right” would generally cheer:

Citizens United v FEC, ruling that campaign spending is protected as free speech under the First Amendment

DC v Heller, affirming the right to keep and bear arms and an individual right

Bush v Gore, putting an end to the 2000 presidential election recounts

And much more.

So, what comes next?  Obviously, President Trump is going to nominate a replacement.  The interesting political situation is going to be this: if one of the “conservative” justices needed to be replaced, like the late Justice Scalia, nominating and confirming a justice like Gorsuch keeps the court’s “ideological” (I hate using that term, actually, as there should be no ideology involved, but that’s a separate blog for some other time) balance more or less at the status quo ante.  Likewise, when President Obama replaced Justices Souter and Stevens with Justices Sotomayor and Kagan, respectively, there was no discernible ideological shift on the bench.  But with a centrist, for lack of a better term, like Kennedy, how does the president proceed, and is there any way to please either of the parties in the Senate with any one candidate?  This is likely going to be the most contentious SCOTUS nomination and confirmation process of a generation, if not longer.

Now, should one person, especially an unelected person who serves essentially for life, have the kind of influence and power Justice Kennedy has wielded?  Again, sounds like a good topic for another blog entry, and will be an issue we'll hear raised over and over again in the upcoming months.

Justice Kennedy, by design or by chance, has made things really interesting for us.

Buckle up…