welcome to the journal editorial report I'm Paul Gigot and we begin this week
with a dramatic end of the Supreme Court's term Justice Anthony Kennedy
announcing his retirement Wednesday giving President Trump his second
vacancy to fill and a once-in-a-generation chance to cement
conservative control of the nation's highest court the 81 year old Kennedy
stepping down after 30 years and setting up a confirmation battle in the Senate
just before the midterm elections let's bring in Wall Street Journal columnist
and deputy editor dan henagar columnist bill McGurn editorial board member
Alicia Finley and editorial features editor James Toronto so James what
difference is it going to make to the Supreme Court without Anthony Kennedy
well Anthony Kennedy was an unusual member of the court particularly after
justice O'Connor left he was the most heterodox of the nine justices and I
used the word heterodox alright advisedly he was often called a moderate
he's really not a moderate he has very strong views on subjects but they don't
always line up with the traditional liberal conservative dichotomy so he's
very much in favor of gay rights he's very much in favor of free speech
whether it's a liberal free speech argument or a conservative free speech
argument and so he was something of a wild-card on the court most likely the
new justice will be war i apt to line up with the other four republican nominees
well that could be the case although Dan it's interesting because if you look at
his First Amendment jurisprudence for example Kennedy was very very strong
wrote the Citizens United decision for example on campaign finance and free
speech and there's no guarantee that his replacement even if a so-called
conservative is going to be a strong eye on say on First Amendment or even on
states rights well that's right I mean all of these nominees everyone who comes
onto the Supreme Court intelligent person they have their own minds by and
large it's able to be able to identify whether they're going to vote most of
the time with Conservatives or the Liberals but there is no real predict
and a lot of these issues have been in play I think the the first amendment it
going forward is going to be a big one as people begin to argue that the First
Amendment should give give way to things like hurtful speech in the last term
justice Gorsuch and one of his interesting concurrence has said he
would like to revisit the Fourth Amendment on ceases and searches and
seizures he thinks it's very unclear he thinks the court ought to do some
housecleaning there so yeah it's a little hard to predict other than as
James suggests probably the next nominee will align with the Conservatives almost
certainly all right Alicia let's talk about the politics of this already we're
seeing the Democrats react with horror at this place they're still very sore
over Merrick garland not getting a vote and in President Obama's last year in
office but Congress has confirmed many the
Senate has confirmed many judges in midterm years I think that's right Elena
Kagan was confirmed in 2010 David Souter you can go Justice Scalia several
nominees both from both parties have been no confirmed during a midterm year
and the filibuster is no longer than right but you can blame Harry Reid for
that in 2013 because he want to basically pack the DC Circuit so he
could so that they could reinforce the bomber regulations so that went but that
was for appellate courts that's ran with a Gorsuch nomination the
Republicans decided to get rid of it for Supreme Court nominations but that's in
part because the Democrats opposed courses right they wanted wanted to
allow they would have allowed any coffee come for me and that's because partly
well I think you saw Manchin Donnelly and Heitkamp would eventually did vote
three Democrat three Democrats did vote but they would not have allowed Trump to
get any nominee onto the court they supported Gorsuch and they wouldn't
have unless the Republicans had shown in advance they had the votes to confirm
that's right I think the Democrats would have been a lot smarter to support
Gorsuch and retain the filibuster for this nomination absolutely they have
they have nothing going in look a couple things one the fact that they're
reacting so strongly tells us the Supreme Court probably looms too
large in our life and agree more bill I mean and the fact of Justice Kennedy
often substituting his personal beliefs for the law that's a problem whichever
side comes down I think one of Justice Kennedy's great contribution so in those
decisions where he went south was producing some of Justice Scalia's
greatest design and most memorable phrases about you know fortune cookies
and and so forth but I think that the the reason the Supreme Court especially
looms large for the left it's their preferred legislature right did rather
work through and get five justices to put something through that couldn't make
it through the democratic system especially on a state-by-state basis and
that's why their that's why they're so very upset with this James the friends
on the Left are already saying this is going to be the end of abortion rights
the end of gay marriage but I really do not see that happening even with a fifth
conservative vote I think the certainly Chief Justice Roberts will be very
cautious about overturning any of these any of those precedents I think that gay
marriage is here to stay obergefell is never going to be
overturned because how would you undo all of these marital contracts that have
already been entered into by people all over the country on abortion I think
it's quite possible that eventually Roe vs. Wade will be overturned but I think
it's gonna take years it'll probably take at least six justices I think they
will proceed cautiously yeah they will proceed constantly but James I'm not
sure sure even even the conservatives on this court would overturn at this stage
roe v-- wade it would be very very disruptive I don't know
Dan what do you think yeah I think that's right
and especially John Roberts being the chief justice he's very aware of the
courts reputation and so I think that part is overblown but make no mistake
the Liberals are going to elevate this issue during the battle over abortion
rights women's rights minority rights health rights they're gonna try to make
it a big political issue problem is that could animate conservatives and
Republicans to turnout in November I think the Democrats are in a very very
tough spot with this nomination politically all right thank you all when
we come back from free speech to affirmative action a
look at Anthony Kennedy's legacy and how the Supreme Court is likely to change
with his retirement
a ronald reagan appointee Justice Anthony Kennedy was at the center of
many of the courts biggest decisions over the last three decades casting the
key vote in landmark cases involving abortion affirmative action gay rights
guns and campaign finance Ilya Shapiro is editor-in-chief of the Cato Supreme
Court review I spoke with him earlier about the Kennedy legacy Illya Shapiro
welcome let's talk about Justice Kennedy and his legacy he wrote this week that
while you ended up agreeing where justice came out on a lot of cases you
disagreed with the way he got there explain that
yeah part of the rule of law isn't just getting the right results but the
reasoning matters that's why the Supreme Court explains itself so people can
follow how the law develops what it means what the Constitution means and
Justice Kennedy didn't follow kind of conventional jurisprudential methods be
that originalism and textualism be that legislative history or the purpose of a
given law or or way or anything in particular people tried to evaluate I
certainly did how he got to the answer in a lot of different areas of law but
often there was a simple inscrutability he seemed to find for example the equal
dignity clause with relate with respect to gay rights or the idea that a
civilized society doesn't pass laws that that harm people for example rather than
importing either a natural rights theory of the law or evolving constitutionalism
or anything and so yeah I agreed with them a lot he was probably the most
libertarian justice although that's a low bar but a bit of a black box as well
well and I agree with you I think on his racial jurisprudence for example he
didn't give clear guidance even though it was the swing vote on issues like
university racial preferences but on the first amendment for example I think that
he had actually a very clear sense of what was
legal and constitutional under the First Amendment he provided the key fifth vote
for example he wrote the opinion on citizens united and had a lot of these
First Amendment cases gone the other way his vote
we'd have a diminished free speech right yeah that's one of the exceptions that
proves the rule that I was talking about before absolutely justice kennedy was
actually not the swing vote on First Amendment case that citizens united or
otherwise he was the most Pro free speech justice that we've had in quite
some time maybe ever and you saw that in several opinions this term that's this
past week whether with the compelled speech with public sector unions or or
crisis pregnancy centers or masterpiece ketchup for for that matter very
solicitous of First Amendment protection well let me let me push back again I
think if you want to describe Kennedy's jurisprudence one way to do it would be
that he had a kind of a jurisprudence of personal liberty that is that led him to
for example the social left on abortion rights or on gay rights but on free
speech and gun rights and even property rights led him to what we would call the
right but that was the consistency at the core of his jurisprudence what do
you think about that well again you're trying to make consistent claims across
issue areas and I don't think it holds up you mentioned property rights he was
one of the votes for the government for the development agency in kilo versus
New London that said that you can take property from a private business or
individual and give it to another private actor and so again it's harder
to contextualise across issue areas certainly he was for
personal liberty in many ways but not in the way that libertarians not in the way
that that the Cato Institute or other classical liberal organizations or
scholars might like he didn't apply a natural rights theory or a you know any
other way that you might describe it like Gorsuch like Neil gorse is the
newest justice I think is dedicated to and so it really depends on how it fit
into his view of the world in certain cases the Constitution's structural
protections for liberty be that federalism or separation of powers
we're very important and he was a key vote on the Obamacare cases for example
fully in line with striking it all down but in other examples Rach versus
Gonzalez the federal government yes apparently can regulate plants that you
grow in your own backyard that was a medical marijuana right right local
again alright fair enough I agree with you there's some inconsistency there but
on the balance I would say he did strike he did tend to support cases that helped
a clear definition of the separation of powers but I want to talk about Neal
Gorsuch his first year on the court very important term how do you think he did
and what's the big I think he did really well he very quickly has become my
favorite justice he's the only PhD on the court and his approach is very
philosophical very first principles oriented you saw that for example in his
opinion in carpenter versus United States relating to whether the police
need a warrant to get cell phone location data and although technically
Gorsuch was dissenting from that ruling against the criminal defendant for the
government that dissent was a concurrence in all but name he had some
technical reasons there but calling for a fundamental rethink of our Fourth
Amendment jurisprudence not to be tied to this 50 year old precedent about the
reasonable expectation of privacy which after all is judge made and he even more
than Justice Thomas who focused on the property right aspect of the Fourth
Amendment course it's really looked at have you taken steps to protect your
personal effects and papers whether that's digital contractual property or
otherwise I mean you can see that it again and again in textual and first
principle constitutional cases he really wanted wants to go back to that well all
right one question here about the future of the court after Justice Kennedy a lot
of people on the Left are saying that roe v wade abortion rights are in
jeopardy with a new justice do you think that that that roe v wade would really
be overturned at this stage not roe v wade itself or planned parenthood versus
Casey which is of course Kennedy's standard about the undue burden and all
that but with with John Roberts presumably moving to be
the median justice right which is the case if we have another Gorsuch he's an
incrementalist and a minimalist so I doubt he would want sweeping over
rulings of a whole slew of controversial precedents but he'd be more likely to
uphold restriction so some of the restrictions that have been overturned
or struck down in the last little while on abortion and other things would be
upheld without necessarily overturning some of these long-standing project
states a chance to regulate a little more but upholding the fundamental right
Ilya Shapiro I think that's right thank you very much for being here appreciate
it opponent still ahead a blockbuster end
this week - a banner Supreme Court term from first amendment rights for public
union workers to president Trump's travel ban our panel looks back at
justice Neel courses first year on the court and Anthony Kennedy's last
last year
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