Monday’s Landmark 5-3 Decision Throws Out Texas’s Draconian Abortion Restrictions
In Whole Woman’s Health v. Hellerstedt, the Supreme Court issued its most important abortion ruling in over 20 years. The opinion, authored by Justice Breyer, was predictably joined by Justices Kagen, Ginsburg, and Sotomayer from the liberal branch and often swing vote Justice Kennedy to reach the required majority.
And on Friday, in another bombshell lobbed at the right, Justice Kennedy provided the key fourth vote in Fisher v. University of Texas II which held that the affirmative action policy of the University of Texas did not violate the Equal Protection clause of the Fourteenth Amendment. The opinion in the long-running case was written by Justice Kennedy. Justice Kagan abstained since she had worked on the case when she was Solicitor General, causing the highly unusual 4-3 split.
Two liberal decisions in three days! Seismic shocks reverberated in Washington and across the legal world.
Impact of Scalia’s death
Because of the previous makeup of the court, analysts predicted that this year’s precedent-setting cases would lean to the right by a 5-4 vote, including Kennedy’s. There were controversial issues to be decided including health care, women’s health, public corruption, affirmative action, unions, and global warming.
The conservatives wanted legal help from the court. Last year it legalized same-sex marriages across the U.S. and again upheld the controversial “Obama Care.” What was going on? Just a few years ago, the New York Times wrote that this was the most conservative court in decades.
Then came the shocker in February when Justice Scalia died suddenly, leaving the court with an even number of eight justices and 4-4 votes probable. Some even accused liberals of murdering the justice.
In an effort to avoid this result, Chief Justice Roberts reached out and tried to find consensus in the warring camps to continue his conservative agenda.
But Kennedy, the last appointee of President Reagan, and Breyer appear to be bonding. Note who authored those new decisions in the past few days.
They are deciding cases based on strict review of the individual facts, as opposed to rigid adherence to political ideologies held by the zealous members of the liberal and conservative factions. Ironically, justices are not allowed to let their personal political views taint their legal analysis. And perhaps Justice Scalia’s dominant voice had swayed the votes of the middle-leaning Justice Kennedy.
Next justice to be more liberal or conservative?
President Obama has nominated the more than qualified Judge Merrick B. Garland to fill Justice Scalia’s vacancy. However, the Senate has not even held a hearing to consider his credentials and fitness for the position. Never before has the United States had such a long-term vacancy. This stalemate could easily continue into the next session and the next presidency. This has become an issue in this year’s election.
There will be at least one vacancy to fill and possibly more in the coming years. Monday’s decision telegraphs that even should the GOP get to name the new justice, there may still be a five-justice majority to issue liberal rulings.
Should Hillary Clinton be elected, that majority could grow given the ages of Justices Kennedy (almost 80) and Thomas (68). Justice Ginsburg is 83 and Breyer is 77. Justice Scalia was almost 80 when he died. Justice Kagan is the “baby” at 56. That’s crazy, right?
Why do our justices get to stay on the bench until the day they die?
The life tenure granted by the Constitution should be revised. The famously liberal William Douglas suffered a debilitating stroke but continued on the bench for almost a year. Justice Black (85) and Marshall (83) were shadows of their former selves when they finally retired at ages 85 and 83, respectively. No other governmental official or president of a major corporation would be allowed to stay on that long. This article points out the problems with lifelong appointments including decrepitude, poor decision-making, and complacency. Here’s another problem with the court that needs to be resolved if our third branch is to effectively perform.