Justice Kennedy retires after 30 years

Justice Anthony Kennedy announced his retirement from the Supreme Court, which gives President Donald Trump an opportunity to move the Supreme Court to the right with his replacement. CNN's Jessica Schneider reports.

Posted: Jun 28, 2018 4:40 PM
Updated: Jun 28, 2018 5:02 PM

If it was not clear before, it is now: Donald Trump will be a historically consequential president.

The furious and disorientating theater of the last 17 months has often obscured the deep changes Trump is unleashing on America and the rest of the world.

But the retirement of Supreme Court Justice Anthony Kennedy gives Trump the chance to shape the highest court in his image for a generation and will reinforce the weighty legacy he is constructing under cover of his daily whirlwind of chaos and controversy.

Republicans are already savoring the short- and medium-term bonanza offered by the vacant seat on the nation's highest bench. And the disappearance of Kennedy's fickle swing vote on some landmark cases on social issues such as gay marriage and abortion.

Trump made the long-term implications of Kennedy's decision clear Wednesday.

"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," Trump said during a campaign rally in Fargo, North Dakota.

Assuming his pick is confirmed in the Republican-led Senate, the President can repay his debt -- already partially cleared by the seating of Justice Neil Gorsuch -- to evangelicals who took a leap of faith on his checkered character in 2016.

In North Dakota Wednesday night, Trump said he was "very honored" that Kennedy chose to retire during his presidency, "because he felt confident in me to make the right choice and carry on his great legacy."

Trump's next pick could jolt Republican turnout and possibly save GOP majorities in midterm elections. And Trump has a another gift to add to his mammoth tax cuts and regulatory swipes to sell to GOP voters in his 2020 re-election race.

All of that is nice.

But for Trump, there is a greater prize, that comes at a time when he is also tearing down legal, political and geopolitical and trading conventions that have underwritten life in America and the world for much of the period since the end of World War II.

He is poised to cement his own influence on American law, life, culture and character for a generation. This beats buildings emblazoned with his name or reality shows that fade into TV history. No one is going to be able to escape the reverberations of the Trump-branded Supreme Court, long after his presidency, and potentially even his life is over.

"It is going to be impossible for history to forget Trump, like it did Franklin Pierce or James Garfield," said Rice University historian Douglas Brinkley.

Uncertainty remains, of course

One big caveat to Trump's permanence in history lies in the so far uncertain outcome of Robert Mueller's special counsel probe into alleged electoral collusion with Russia, that could still, theoretically at least strangle his presidency before its time.

And Trump's critics are certain that his administration is certain to end in disaster at home or abroad and point to his low approval ratings and polarizing impact to argue that he is leaving a trail of irrevocable damage.

But it's also clear that Trump's presidency can no longer be seen as a fluke or a joke. He has completed the takeover of the Republican Party, changed it into a populist nationalist force. He's dissing US allies, assailing the global trading system, broke bread with North Koreans, is railing against institutions that check his domestic power and making friends with tyrants.

You might not like it, but you can't say it's not significant.

Now he's poised to change the court in a way that few of his conventional GOP predecessors ever did, in a move that could rewrite business law for decades and change the attitude of the government toward the lives of everyday Americans.

For a man who craves recognition, and respect that has often proven elusive but that is clearly a motivating factor of his anti-establishment crusade, that may be the most important thing of all.

Gloom for Democrats

It is no wonder that Democrats, already disappointed by a swathe of Supreme Court decisions this week that favored Trump on immigration and trade unions, are deflated.

The party has little realistic hope of thwarting Trump's next pick, following the GOP's decision to kill the filibuster for Supreme Court justices during Gorsuch's Senate confirmation fight.

There is the theoretical chance that a Republican senator, perhaps Susan Collins of Maine or Lisa Murkowski of Alaska, could be troubled by the possibility that the new court could overturn Roe v. Wade and decide to vote against the next nominee.

But it seems just as likely that a Democratic senator up for re-election in a red state where Trump won big in 2016 could themselves caught between conservative Trump voters and the Democratic base -- and reluctantly chose to vote for the nominee.

These are going to be tough months for Heidi Heitkamp of North Dakota, John Tester of Montana, Joe Manchin of West Virginia and Claire McCaskill of Missouri.

Reflecting already intense pressure -- including a Trump visit to her state Wednesday -- Heitkamp rejected suggestions that the GOP refusal to allow a vote on President Barack Obama's Supreme Court nominee Merrick Garland in an election year should mean Trump should be forced to wait until after the midterms.

"I was taught that two wrongs don't make a right," she said.

The departure of Kennedy, who controlled the outcome of the court in big cases for years, is the latest bitter pill for Democrats to follow.

"It is one bad news story after another," Democratic strategist Angela Rye told CNN's Jake Tapper on Wednesday.

Kennedy's role

Recent weeks certainly put the heady days of the Obama presidency when it felt like not even the often conservative court could not hold back a liberal tide further in the rear view mirror.

After all, Kennedy, despite angering liberals in the Citizens United campaign finance case and helping to install George W. Bush as president, also wrote the majority decision in the Obergefell case that required states to license and recognize same-sex marriage.

The left always knew there was a chance with Kennedy on the bench. There's zero chance liberals will be able to say that about Trump's next pick.

For now, liberals, shut out of power in Congress, the court and the White House can only taste their own impotence as they make ritual calls for Trump to pick a candidate who mirrors Kennedy's relative moderation.

They are surely also stewing even more over Hillary Clinton's devastating election loss that becomes more significant by the week.

Had she won, Democrats could now be looking at the prospect of their own generational majority on the court.

While it's possible that the remaking of the court could juice Democratic turnout, after underlining the vital nature of elections, it looks likely that things could get even worse for liberals soon.

It's quite likely for instance that the Kennedy seat may not be the last one that Trump gets to fill in his first term. Liberal Justices Ruth Bader Ginsburg and Stephen Breyer are 85 and 79 respectively. It's also possible that Justice Clarence Thomas could chose to cede his seat to a younger conservative while Trump is in the Oval Office.

So it's quite conceivable that the familiar 5-4 split on the Roberts Court could become a much more significant 6-3 tilt in the near future -- and for years to come.

Such a lineup could also be significant for Trump in another way since it would remove one of the few remaining constraints on his own obvious desire to maximize his power.

Judiciary's role in Trump presidency

While a tame Republican Congress has done little to curtain him, the judiciary has often frustrated Trump. Some cases are yet to reach the Supreme Court, though in an ominous sign for liberals, the top bench, including Kennedy, upheld the President's travel ban that included several mainly Muslim nations this week in a huge win for the White House.

There's no guarantee that the new court would side with Trump on questions of executive power or in cases that arise from the Mueller probe -- including on whether he could be compelled to testify if he refuses to comply with any subpoena from the special counsel.

But it's almost certain that it will align itself with the President on questions of regulation of business and the environment, criminal justice and social issues.

Trump is not the only Republican leader with an eye on posterity.

The coming conservative consolidation on the Court also cements the legacy of Republican Senate Majority Mitch McConnell, and confirms that his decision to hold up the Gorsuch nomination in 2016 was one of the most significant moves in recent political history.

The hardline maneuver staved off a liberal majority, gave evangelicals a reason to vote for Trump, opened the way to replacing Kennedy and could yield even more open seats.

He's probably not losing much sleep over Democratic accusations of hypocrisy.

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