THE FUTURE OF THE SUPREME COURT / THE ECONOMIST

The future of the Supreme Court

Anthony Kennedy’s retirement comes at a worrying time

The swing vote is lost just as the constitution is under strain from a norm-breaking president

FOR 12 years, Anthony Kennedy has been the Supreme Court’s swing vote. The court’s liberal and conservative quartets voted predictably. He did not—which is why those who want the Supreme Court to float above America’s partisan divide reacted with such dismay to his retirement, announced on June 27th. Justice Kennedy’s departure from the bench might sound like a minor detail set against everything else that is going on with America’s government at the moment. It is not. President Donald Trump now has the opportunity to appoint a second Supreme Court justice and with it to cement a 5-4 conservative, one might even say Republican, majority at a time when the constitution is under strain from a norm-breaking Republican president.

The high stakes herald a gigantic fight in the Senate. Democrats are still smarting from the way that Senate Republicans in 2016 ignored Barack Obama’s Supreme Court nominee for 293 days. The Republicans’ failure to give Merrick Garland a hearing before the election allowed Mr Trump to pick a judge. Democrats will bend every remaining Senate convention rather than be bested again. This will poison a polarised polity even further. But it is hard to blame them. The legislative branch has become so gridlocked that no president can expect to sign more than one or two significant laws. Far more lawmaking is therefore done by the Supreme Court, through its decisions to overturn or uphold state laws or presidential decrees. A reliable 5-4 majority will give conservatives immense power to reshape America by doing just that.

For a sense of what a court with a stable conservative majority might look like, consider the term just past. Its 63 rulings marked the most decisive shift to the right in years. The court upheld Mr Trump’s ban on travel from several mostly Muslim countries. It dealt a blow to public-sector unions by overturning a 41-year-old precedent that allows them to charge non-members for collective bargaining. And, most consequentially, it issued a series of decisions on voting laws that found in favour of entrenched (Republican) majorities.

The court declined to condemn gerrymandering. It upheld congressional and state legislative maps in Texas that, according to lower courts, discriminated against black and Latino voters. And it rejected a challenge to an Ohio law that takes voters off the rolls who stayed at home for several elections and neglected to return a postcard (voters who, by some extraordinary coincidence, were predominantly Democrats). Most of those decisions were 5-4, with Justice Kennedy, contrary to his usual pattern, voting each time with the conservative bloc.

Root and third Branch

Once a 5-4 majority becomes their worst outcome, Republicans will have an incentive to push for more radical change. Republicans have long wanted to overturn Roe v Wade, the ruling in 1973 that decided federal abortion law. Justice Kennedy’s departure will give them that chance.

His was the swing vote that decided that the federal government could regulate carbon-dioxide emission. That, too, could go. Another sally against Obamacare is inevitable. So are attempts to roll back socially liberal rulings of recent terms, such as expansions of gay rights and limits on capital punishment.

Even in normal times, activist judicial partisanship is dangerous. All the more so with a president so contemptuous of institutions. In the “Federalist Papers”, Alexander Hamilton called the judiciary the “least dangerous” branch of government, because instead of “force” and “will”, it has only “judgment”. That looks like cold comfort today.