Visitors outside the Supreme Court building in 2015. (Jonathan Ernst/Reuters)

Breaking down the likely impact of Justice Kennedy’s retirement

Years ago, when I was a young lawyer, I had an interesting conversation with a much older judge. He was a Democrat, an old-school liberal, and he said something revealing: “There’s the law, and then there’s what’s right. My job is to do what’s right.” Or, to put the philosophy in the words of one of my leftist law professors, “You determine the outcome first, then you do your reasoning.” Time after time, that’s exactly what Justice Anthony Kennedy appeared to do.


I can think of few better summaries of Kennedy’s jurisprudence — especially in the cases that fired his passion the most — than this infamous passage from Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” As a statement of dorm-room philosophy, it’s mildly interesting. As the expression of a constitutional ideal, it’s wildly incoherent.

Looking at Trump’s list of 25 candidates (and reading the speculative “short lists”) to replace Kennedy, one thing seems certain: The moment the new nominee is confirmed, no matter who it is, the Supreme Court will grow appreciably more originalist. Look for fewer sweeping moral statements — like Kennedy’s declaration in Obergefell that “marriage responds to the universal fear that a lonely person might call out only to find no one there” — and more close textual and historical analyses of the Constitution.


No one should believe that any judge is entirely free of ideological bias, but there is a profound difference between judges who approach a legal conflict with the question, “What does the Constitution mean?” and those who instead ask, “What does justice demand?”

Any originalist would come to the court facing an immensely powerful administrative state and a social movement that increasingly places statutory or regulatory rights (like public-accommodation statutes or contraception mandates, to take two recent examples) in conflict with constitutional rights. Moreover, this same originalist will likely at some point have to face the immense confusion and uncertainty surrounding the scope of the Second Amendment. And he or she will have to decide claims asserted on the basis of judge-made civil liberties, most notably the right to abortion.


So, what can we reasonably expect?


First, when the sexual revolution collides with the First Amendment, expect to see the First Amendment win. That’s the way the conflict played out in NIFLA and Masterpiece Cakeshop, to take the two most prominent examples from the Court’s most recent term. A more solidly originalist court would likely have decided Masterpiece Cakeshop on broader free-expression grounds, would scoff at the very notion that the government could revoke religious institutions’ tax exemptions for upholding their own notions of sexual morality, and may well take a dim view of efforts to prohibit counselors or pastors from sharing such notions with gay or transgender clients.

Second, look for the court to offer greater clarity on the Second Amendment. Since Heller and McDonald, the Court has essentially gone quiet about gun rights. Left undecided are questions about the extent of the right to bear arms outside the home (implicating carry permits) and the nature and type of weapons precisely protected. If an originalist court follows the late Antonin Scalia’s reasoning that the Second Amendment attaches to weapons “in common use for lawful purposes,” then broad “assault weapons” bans will likely fail.

Third, you’d likely find interesting majorities protecting civil liberties from police abuse. There was a time when a “conservative” judge was essentially a judge who was traditionalist, statist, and institutionalist. Indeed, one of the quickest ways to determine the difference between a liberal and conservative jurist was to examine their record in criminal cases. The conservative judges sided with the state in close cases; the liberals sided with the defendant. With the increasing influence of originalism in conservative legal circles (and the increasing distrust of state power), the entire Bill of Rights has new life. (At the same time, judicial efforts to end the death penalty would likely prove fruitless. Who can credibly argue that abolishing capital punishment was part of the “original public meaning” of the Eighth Amendment?)

In short, an originalist court stands for a simple proposition: The Founders created an ingenious system of government. We should give it another try.

Fourth, prepare for a more color-blind court. State-sponsored affirmative action — especially in higher education — has hung on by its fingernails for more than a decade. It’s beyond difficult to make an originalist argument for policies that, to take a contemporary example, effectively cap the number of Asians in any given class. The case for affirmative action has rested for a long time on magnifying the state interest in creating “diverse” communities through policies that explicitly use race as a factor to punish or privilege specific demographics. These policies exist far more as a matter of social justice and academic theory than actual constitutional law. Soon enough, the nation may understand that “equal protection” means just what it says.


Fifth, expect greater skepticism toward the exercise of executive authority. In the absence of clear and express congressional delegations of power, there is growing originalist resistance to what’s called Chevron deference — the voluntary judicial practice of deferring to agencies’ interpretations of federal law so long as they are merely “reasonable.” The practical result of this doctrine has been an enormous expansion of administrative power and authority, permitting executive agencies to make the law as well as enforce it.


In fact, numerous executive agencies are now combining all three branches of government under one roof. They’re enforcing and interpreting the laws they make. This practice has had pernicious effects on our constitutional structure and has created an executive branch that would be unrecognizable to the Founders. Ending Chevron deference wouldn’t be a cure-all, but it would help restore constitutional governance, and it would start to reverse the incentives for congressional action. Do you want to see new law? Then let’s see more legislation and less regulation.

Sixth, American abortion law would likely change, though we don’t know how much. It’s possible that a solid originalist majority of five justices could reverse Roe. But even though Roe is repugnant to originalism (as is Casey, for that matter), the justices don’t issue policy statements; they decide cases, and they’ll likely review one or more challenges to various state restrictions on abortion soon enough. A more thoroughly originalist court is far more likely to uphold abortion restrictions and far less likely to adhere to Casey’s “undue burden” standard. But there’s nothing about originalism that mandates that they choose to overturn Roe in any given abortion case, and the simple fact of the matter is that each justice in a 5–4 split would be under immense pressure to preserve abortion as a constitutional right. Would they have the courage to do the right thing, even if that requires doing the right thing with a one-vote majority? Time will tell.

Finally, don’t expect an originalist court to overturn Obergefell. I say that not because Obergefell is a well-reasoned decision or because there’s anything originalist about it, but because there exists little appetite to mount a serious legal challenge Obergefell, because it’s difficult to foresee a cert-worthy case that would require the justices to consider the precedent, and because the primary legal controversies surrounding same-sex marriage often have little to do with the legitimacy of same-sex marriage itself. Conflicts between gay rights and religious liberty arose both before and after Obergefell, and their outcomes don’t tend to stand or fall on the basis of Kennedy’s most famous precedent.


There are those who will look at the list above with shock and horror. But I’m less sympathetic to the notion that the cause of building a just society somehow requires granting the state the power to dramatically limit free speech (or even compel speech, as California attempted to do to pro-life crisis-pregnancy centers in NIFLA), to create immense administrative superstructures subject to the barest legal oversight, and to make explicit, race-based decisions in dispensing jobs or college admissions. And justice actually requires that we reverse Roe and work mightily to end the senseless and unjustified slaughter of millions of the most innocent and vulnerable Americans.

In short, an originalist court stands for a simple proposition: The Founders created an ingenious system of government. We should give it another try.

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