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A New Balance on the Supreme Court Won’t Be the End of American Democracy

February 1, 2018 in Economics

By Reilly Stephens

Reilly Stephens

Realities both political and actuarial fuel speculation about
when Supreme Court Justice Anthony Kennedy — for more than a
decade the deciding vote on issues from abortion and gay marriage
to campaign-finance regulation and gun rights — might hang up
his robe. Conservatives hope that a Trump-appointed replacement
might roll back decisions such as Obergefell v. Hodges and
Planned Parenthood v. Casey. Progressives, for the same
reason, root for him to keep at it till at least January 20,

Here at National Review,
Michael Brendan Dougherty comes to a dire
conclusion on the matter: “Anthony Kennedy Can’t Be Allowed to
Die.” Kennedy, Dougherty believes, is more or less the last rivet
keeping the wings on our political 747 attached. The Supreme
Court’s role has evolved from simply deciding cases; it now must
“moderate and restrain the ambitions of each party.” On this view,
the fact that Kennedy “swings” from right to left from case to case
keeps each side on board. And since any replacement would probably
conform more closely to one faction or the other, “if the Court
soon consolidates to the left or the right, partisans on the losing
end of that bargain will swiftly lose faith in democracy itself.”
In our current hour of political craziness, the Court must keep
swinging, the way kids must clap to sustain Tinker Bell.

The good news is that there are reasons to doubt this prognosis.
To begin with, it does not address how the Court functions in
practice: There is always a median justice, so the effect
of any change is felt on that margin. Justice Sonia Sotomayor is a
far more solid progressive vote than was Justice David Souter, but
her appointment merely shored up the outer flank of that coalition.
Chief Justice John Roberts is a more reliably conservative vote
than was Chief Justice William Rehnquist, but this difference was
dwarfed from the beginning by the gap between Justice Samuel Alito
and the justice he replaced, Sandra Day O’Connor (Kennedy’s
predecessor as median vote).

How will Kennedy’s
would-be replacement adjust the Court’s equilibrium?

So how will Kennedy’s would-be replacement adjust the Court’s
equilibrium? If President Trump replaces Kennedy with someone on
the model of Neil Gorsuch, then the most likely applicant for
median-vote status would become the chief. A few years from now,
the sort of replacement one would expect from President Oprah
Winfrey would shift the center to Justice Kagan (or perhaps Breyer,
or his replacement) in the same manner.

The latter scenario represents a greater “swing” in the
equilibrium, but the system would also adjust dynamically: What
cases are brought depend in …read more

Source: OP-EDS

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