In a move that could transform the Supreme Court for decades, Justice Anthony Kennedy has announced his retirement, giving President Trump a chance to pick a second conservative on the high court. Kennedy, who was nominated by President Reagan, was widely seen as the swing vote on the nine-justice court. On Wednesday, he sided with the conservative wing of the court to deal a major blow to public-sector unions in the case of Janus v. AFSCME. He also sided this week with the majority upholding President Trump’s Muslim travel ban. But Kennedy has sided with the liberal wing of the court on a number of pivotal issues. He has been instrumental in preventing Roe v. Wade from being overturned, and he has supported same-sex marriage, affirmative action and criminal justice reform. On Wednesday, President Trump said he wants to pick a justice who will be on the court for the next 40 or 45 years. We speak to Dahlia Lithwick, senior editor at Slate.com.
AMY GOODMAN: We’re broadcasting live from Brownsville, Texas, on the U.S.-Mexico border.
In a move that could transform the Supreme Court for decades, Justice Anthony Kennedy has announced his retirement, giving President Trump a chance to pick a second conservative on the high court. Kennedy, who was nominated by President Reagan, was widely seen as the swing vote on the nine-justice court. On Wednesday, he sided with the conservative wing of the court to deal a major blow to public-sector unions in the case of Janus v. AFSCME. He also sided this week with the majority upholding President Trump’s Muslim travel ban. In 2010, Justice Kennedy wrote the majority opinion in the landmark Citizens United case, which opened the floodgates for unlimited corporate spending on election campaigns. Three years later, he voted with the majority to gut the Voting Rights Act.
But Kennedy has sided with the liberal wing of the court on a number of pivotal issues. He’s been instrumental in preventing Roe v. Wade from being overturned. And he’s supported same-sex marriage, affirmative action, criminal justice reform, as well. He also ruled on behalf of prisoners at Guantánamo seeking the right to habeas review.
On Wednesday, President Trump said he wants to pick a justice who will be on the court for the next 40 to 45 years.
PRESIDENT DONALD TRUMP: And Justice Kennedy is a star, and we appreciate it. We really have to take our hats off to Justice Kennedy. Thank you very much. And remember this: So, we have a pick to come up. We have to pick a great one. We have to pick one that’s going to be there for 40 years, 45 years. We need intellect. We need so many things to go. You know, there’s so many elements go into the making of a great justice of the Supreme Court. You’ve got to hit every one of them.
AMY GOODMAN: Senate Democrats lack enough votes to block Trump’s pick, but are pushing for confirmation process to occur after the midterm elections—just over four months away. But Senate Majority Leader Mitch McConnell has rejected that idea, even though in 2016 he refused to hold hearings in an election year for then-President Barack Obama’s Supreme Court nominee, Merrick Garland. McConnell’s decision allowed Republicans to essentially steal a seat on the Supreme Court. Instead of a liberal justice picked by Obama, the court now has ultraconservative Justice Neil Gorsuch. On Wednesday, Senate Minority Leader Chuck Schumer said it would be the height of hypocrisy for the Senate to vote before the midterm elections. He also called for the rejection of any nominee who would overturn Roe v. Wade.
SEN. CHUCK SCHUMER: Will Republicans and President Trump nominate and vote for someone who will preserve protections for people with pre-existing conditions, or will they support a justice who will put health insurance companies over patients or put the federal government between a woman and her doctor? The Senate should reject, on a bipartisan basis, any justice who would overturn Roe v. Wade or undermine key healthcare protections. The Senate should reject anyone who will instinctively side with powerful special interests over the interests of average Americans.
AMY GOODMAN: We’re joined right now from Toronto, Canada, by Dahlia Lithwick, senior editor at Slate.com. She’s their senior legal correspondent and Supreme Court reporter. Dahlia also hosts the podcast Amicus. Her latest piece is headlined “Why Anthony Kennedy Gave Up.”
Dahlia Lithwick, welcome back to Democracy Now! Talk about your surprise yesterday. And why do you see it as Justice Kennedy giving up?
DAHLIA LITHWICK: Well, Amy, first of all, thanks for having me back.
I see it as giving up, because I was one of an enormous number of people who believed that Anthony Kennedy had certain foundational principles that would make him hesitant to step down when Donald Trump was likely to appoint his successor. For one thing, as you said, he was the bulwark in so many 5-4 cases—reproductive rights, LGBTQ rights, prisoner rights, affirmative action. In so many areas, he was the fifth vote that would have precluded a sea change from overtaking the country. And the idea that his legacy wouldn’t matter in considering whether he’d step down, I just didn’t see it happening. I thought he would stay on because his legacy was that important.
More importantly, he has been the one, for 20 years that I’ve been covering the court, who has talked most pointedly about civility, about decorum, about respect, about the dignity of every person. And so, to me, the idea that Donald Trump, who’s been such a bully, such as xenophobe, such a misogynist—it seemed anathema that Anthony Kennedy could allow somebody like that, who has so polluted the political discourse, to also pollute the judicial discourse. And so, I think I was surprised. I knew he was 81. I knew he had been making noises about wanting to step down. But it just seemed to me that he, more than anyone, was the voice of centrism, moderation, a kind of careful respect of dignitary interests. And all that is sort of not how Trump rolls.
AMY GOODMAN: And so, talk about the significance right now. I mean, Trump famously said, you know, “I am,” he said, “pro-life.” He’s against abortion. So, let’s talk about the issue of abortion and what this could mean in this country.
DAHLIA LITHWICK: I don’t think there’s any way to overstate what is about to happen. And I think that there is no doubt in my mind. Donald Trump has a list of 25 nominees that he is going to pick from. He published the list in November of 2017. He has pledged that every single one of those people is gunning for Roe v. Wade. I have no reason to doubt that that’s true, if you look at the list. So I think it is fair to say that the person who was the only vote on the U.S. Supreme Court in the last couple of years to uphold the core principles of Roe and Casey is going to be replaced by someone who wants to overturn Roe.
I don’t think there’s any question that in the next couple of years the right to choose in this country is going to be gone. How that happens, whether the Supreme Court does it the way they did it yesterday, when they simply, with the stroke of a pen, overruled a case in the agency fee case—they overruled a 40-year-old precedent with the stroke of a pen. They could do it that way, or they could chip, chip, chip away at Roe over the coming years, saying things are not undue burdens when they are. But either way you slice it, I think that it is absolutely the case that we are looking at the end of Roe v. Wade in America in the coming years.
And by the way, that was Donald Trump’s promise. That was why people voted for him. So, all he has done is fulfilled on a pledge, that focused the electorate that cared about the court, and forced them to vote for him.
AMY GOODMAN: You know, can you explain what it would mean if Roe v. Wade were overturned? And I’m sitting here talking to you on the Texas-Mexico border. You’re in Canada. But it was here that Roe v. Wade got its start, right? With Norma McCorvey, who was Jane Doe at the time.
DAHLIA LITHWICK: Yeah. I mean, I think that there is—has been a question that has animated Republican politics since the '70s, since Roe, that has really laser-focused on the idea that Roe was the original sin in judicial politics. And you'll remember that Sandra Day O’Connor’s confirmation hearing, Anthony Kennedy’s confirmation hearing, Ruth Bader Ginsburg’s hearing, the issue that matters most to conservative movement Republicans has been doing away with Roe. And that was again—we had never had, until this election in 2016, a president who said, “I am promising you a litmus test. The litmus test is that Roe will be gone. Here are my 25 people I’ll put up.” So he, in effect, promised that Roe will be gone.
What it will mean for practical purposes depends on how the court does it. There are already seven states that have only one abortion provider in the state. We’ve seen state legislatures and state courts chipping away at Roe for the past decades. So what it’s going to mean is that for so many women in this country, many of whom already have to drive for a day to find a provider, many of whom have 72-hour waiting periods, many of whom can’t get medication abortions—already, throughout this country, in so many states, the ability to procure not just abortion, Amy, but contraception, has been under assault for the past decades. What it’s going to mean is that that is going to accelerate, and that in states in which the determination has been made, it’s been made.
AMY GOODMAN: So, explain again how many states, if Roe v. Wade was overturned, already have these anti-abortion laws on the books.
DAHLIA LITHWICK: Well, I mean, the number of states, I can’t remember offhand how many states. There are states that even have—I believe it’s 12—what are called trigger laws, that say the minute the Supreme Court overturns Roe, the entire statutory system in that state will revert to pre-Roe. So there are states that have been teeing up to do away with any abortion protection.
But I think it’s fair to say that in all the states, if you aggregate the number of states that have waiting periods, that have bans that are earlier and earlier and earlier, that make medication abortions impossible, that have mandatory scripts that warn women that there’s a connection between breast cancer and abortion—if you aggregate all the states that have used TRAP laws and whatever means to make it harder for women to get abortions, whatever protections existed in those states for those women will go away. They’ll be gone.
AMY GOODMAN: So, I mean, I think we’re talking about in the range of something like 33 states. I want to go to then-candidate Donald Trump during a 2016 presidential debate, when he was questioned about his views on abortion by moderator Chris Wallace of Fox. We also hear from then-Democratic presidential candidate Hillary Clinton.
CHRIS WALLACE: What I’m asking you, sir, is: Do you want to see the court overturn—you’ve just said you want to see the court protect the Second Amendment. Do you want to see the court overturn Roe v. Wade?
DONALD TRUMP: Well, if we put another two or perhaps three justices on, that’s really what’s going to be—that will happen. And that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court. I will say this: It will go back to the states, and the states will then make a determination.
HILLARY CLINTON: I do not think the United States government should be stepping in and making those most personal of decisions. So, you can regulate, if you are doing so with the life and the health of the mother taken into account.
CHRIS WALLACE: Mr. Trump, your reaction, and particularly on this issue of late-term, partial-birth abortions?
DONALD TRUMP: Well, I think it’s terrible. If you go with what Hillary is saying, in the ninth month, you can take the baby and rip the baby out of the womb of the mother just prior to the birth of the baby.
AMY GOODMAN: That was Donald Trump in a debate with Hillary Clinton, Dahlia Lithwick. And now President Trump will shape the U.S. Supreme Court, if the Republicans get their way in the Senate and are able to confirm a second Trump extremely conservative Supreme Court justice. And I’m wondering if you could just say a few of the names that are on the list that Trump has already put out now. Again, it’s going to be on the younger end, because he says he wants this justice to be there for 40 to 45 years.
DAHLIA LITHWICK: Some of the names on the list—I think probably the front-runner we’re hearing about right now is Brett Kavanaugh, who’s on the D.C. Circuit. He’s, I think, in his early fifties. Amy Coney Barrett on the 7th Circuit, she is not yet 50. Judge Diane Sykes. There’s been a list of—as I said, the youngest one on the list of 25, Amy, is 37 years old. A lot of these folks have not even been judges for very long. Amy Coney Barrett’s only been on the [7th] Circuit for a few months. But I think that the idea will be to pick someone who is as young as possible.
And some of these judges, I think I should add, when they were asked at their confirmation hearings whether Roe was settled precedent—that was a standard answer. Even John Roberts, even Sam Alito were able to say, of course that was settled law. Some of these younger judges that have been put on the bench in the Trump era are not even willing to say that. And some of those folks are on the short list, too.