如果特朗普坚定履行承诺，从去年11月拟定的法官清单中遴选下一位大法官，那么，最高法院很大程度上将被五位原旨主义法官主导，而两位最年长的法官都是进步主义者。金斯伯格法官现在85岁，布雷耶法官今年8月将迎来80岁寿辰。很久没有这么一位总统，能有机会对最高法院的司法哲学施加如此明显、如此决定性的影响。同时，这意味着原旨主义者很可能有一个重整我们法律体系的黄金机会，以使其更符合宪法的言语和含义。认为罗诉韦德案（Roe v. Wade）会被推翻也许言过其实，但我们可以很容易地想象到，最高法院将授予州政府更大的自主权以监管堕胎场所。我们也能想象到对言论自由、宗教自由的保护将更为有力，对持有、携带武器的权利的保护将更加完善，与违宪的行政国家的斗争将取得重要进展。
Supreme Court Associate Justice Anthony Kennedy speaks during a swearing in ceremony for Judge Neil Gorsuch as an associate justice of the Supreme Court in the Rose Garden of the White House, April 10, 2017. (Carlos Barria/File Photo/Reuters)
Earlier this afternoon, Justice Anthony Kennedy announced his retirement. Court observers long thought it was possible that he'd step down after this most recent term, but now it's confirmed. The moment has arrived. In the first two years of his first term, President Trump is set to nominate just as many Supreme Court justices as Clinton, Bush, and Obama nominated in all eight years of their presidencies. That means that no matter what happens the rest of his presidency — whether it's cut short by scandal or it extends to two full terms — he'll make an indelible mark on the Court. Trump will have an enduring judicial legacy.
In fact, the consequences of Kennedy's retirement — both legal and political — are immense. First, let's look at the legal angle. While Kennedy's judicial liberalism was often exaggerated (for example, he wrote or joined a number of solid opinions that protected and reaffirmed core constitutional liberties, including liberties protected by the First and Second Amendments), it's a simple fact that as a "moderate" swing justice he served as the primary judicial guardian of abortion rights and was more responsible than any other justice for the relentless legal march of the sexual revolution. This tweet, from Slate's Mark Joseph Stern, sums up the feeling on the left half of Twitter right now:
Twitter Ads info and privacyIf Trump holds firm to his promise to choose his next justice from thelist he put forward last November, the Supreme Court will be dominated by a core of five largely originalist justices, and the next two oldest judges are both progressive. Justice Ginsburg is 85, and Justice Breyer turns 80 in August. It may be quite some time before a president will have the opportunity to so clearly and decisively impact the judicial philosophy of the Court. In the meantime, that means that originalists may well have a golden opportunity to reset our jurisprudence to align more with the words and meaning of the Constitution. It's too much (perhaps) to argue thatRoecould fall, but one can easily imagine the Court granting greater autonomy to state governments to regulate abortion providers. One can also imagine more robust protections for free speech and religious liberty, greater protection for the right to keep and bear arms, and further inroads against the unconstitutional administrative state.
And that brings us to politics. Heading into the midterms, Republicans were desperately worried about an "intensity gap." Democratic voters seem prepared to turn out in huge numbers. Republicans — while holding firm in their support for President Trump — lacked the same excitement. Special elections were swinging strongly Democratic, and even though the generic preference numbers were trending closer, most observers thought Republicans would struggle to get their voters to the polls. I'd say those concerns are eased a bit today.
After all, for an immense number of base GOP voters, judges aren't just an issue. They're the issue that drives them to the polls. Republicans are all over the place on immigration policy, trade policy, and foreign policy. Divisions in the party are deep and real. Those divisions disappear when judges are on the line. We can debate all we want about Russian influence on the 2016 election (or about the effect of the Comey letter), but one thing is certain — if Evangelicals and other conservatives weren't afraid of the impact of a progressive Supreme Court on their fundamental liberties, Donald Trump doesn't win. A new Supreme Court pick will galvanize the entire base for months.
And let's not forget that this pick is landing in the middle of one of the most toxic political environments in generations. Progressives believe that Justice Gorsuch sits in a "stolen" seat. Many of them see Trump as an illegitimate president — for reasons that range from Russian interference to disgust at his popular-vote loss — and find it unbearable that he could not just win the presidency but also select the man who could swing the Supreme Court. Expect increasing rage. Expect more personal confrontations of senators and Trump officials. Expect the political environment to get even more toxic, perhaps dangerously so.
Finally, a word of caution to gleeful conservatives. We've been here before. We've had opportunities to remake the Court. President Reagan and the first President Bush together appointed a majority of the Supreme Court. Yet Roe endured, and the Court even moved left on key issues. Presidents don't nominate robots. They nominate people who possess their own will. It will be imperative that conservatives closely evaluate Trump's potential picks, but that person — no matter his or her record — will not only possess immense power, they'll face immense pressure. May he or she possess not just the right philosophy, but also the necessary character to do all the job requires.
So much for a quiet summer. The next weeks and months may well define the Supreme Court for a generation — and help decide who controls Congress. Buckle up. It's going to be a wild ride.