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Monday round-up

Justice Anthony Kennedy’s retirement on June 27 generates significant coverage and commentary—especially with regard to consequences for Kennedy’s legacy, the court, politics and other specific issue areas. Nina Totenberg of NPR writes that Kennedy “may feel secure in his legacy. But Justice Sandra Day O’Connor did, too, only to be disappointed.” For the New Yorker, Jeffrey Toobin observes “some irony in Kennedy’s decision” to retire because the “whole purpose of [President Donald] Trump’s Supreme Court selection process has been to eliminate the possibility of nominating someone who might commit Kennedy’s perfidies of moderation.” Jonathan Turley writes for the Washington Post that because of Kennedy’s “occasional disdain for precedent,” “if any of his major opinions are voided by future courts, the weapon may not bear the fingerprints of his more conservative replacement but rather, in a strange way, his own.” For E&E News, Ellen M. Gilmer reports that although “Kennedy played a momentous role in high-profile environmental litigation over the years — often swinging the court to the left — his impact on energy-focused cases was more limited.” Alan Loncar praises Kennedy’s legacy in an op-ed for the Oakland Press; Lawrence Norden is more critical with an op-ed at Newsday.

Chief Justice John Roberts also attracts attention. Bill Mears of Fox News writes that “the man President Trump once called an ‘absolute disaster’ potentially is poised to inherit the mantle of ‘swing’ justice – and solidify his power on the Supreme Court.” Jonathan Nash expresses a similar view of Roberts as the “biggest beneficiary” of Kennedy’s retirement, in an op-ed at The Hill. For the New York Times, Alicia Parlapiano and Jugal Patel present visual graphics leading to a similar conclusion. Joan Biskupic at CNN observes that Roberts “might have been playing a long game, as much concerned about the institutional future of the court and his reputation than the fate of one law.”

David French for National Review looks at what to expect from a more originalist Supreme Court. Garrett Epps at The Atlantic argues that “the post-Kennedy court first convened on the first Monday in October 2017,” because “the ‘Justice Kennedy’ who sat at the right hand of the Chief Justice for the last nine months was not the Justice Kennedy who defined the court for the past 25 years.” David Savage of the Los Angeles Times echoes that the “Supreme Court term that ended last week gave a preview of the new era ahead.”

Moving on to politics and Trump’s upcoming nomination: Philip Rucker reports for the Washington Post that Trump “has narrowed his list of Supreme Court finalists to five candidates, including two women, and plans to announce his nominee on July 9, one day before he is scheduled to depart for a week-long European trip.” Additional coverage comes from Emily Cochrane and Michael Shear for the New York Times, Matt Richardson for Fox News, Jordain Fabian for The Hill and Noah Bierman for the Los Angeles Times.

Kevin Freking for the Associated Press looks at “some of the factors in play” as “candidates are vetted: their ideological bent, their ability to win confirmation and even whether, according to a key adviser, they are ‘not weak.’” Jess Bravin reports for the Wall Street Journal that a few weeks before announcing his retirement, Kennedy “talked about judicial vacancies with the man assigned to find his successor,” Leonard Leo, the “Federalist Society leader upon whom President Donald Trump relies when it comes to picking judges.” Philip Rucker and Seung Min Kim report for the Washington Post that “Trump is driving to execute the same playbook in selecting a new Supreme Court nominee that last year delivered swift confirmation of Justice Neil M. Gorsuch.” Brandon Bartels at the Washington Post looks at three reasons, involving “the politics of appointments, justices’ ‘ideological conversions,’ and Senate rules,” that conservatives have sometimes been disappointed in Republican presidents’ nominations.

Looking more closely at specific potential nominees, Michael Kranish and Ann Marimow report for the Washington Post that Judge Brett Kavanaugh “has argued that presidents should not be distracted by civil lawsuits, criminal investigations or even questions from a prosecutor or defense attorney while in office.” Additional Kavanaugh coverage comes from Christina Tkacik for the Baltimore Sun; Edith Roberts’ has this blog’s profile. Justin Mack for the Indianapolis Star and Ron Maxey for Memphis Commercial Appeal cover Judge Amy Coney Barrett. And Judge Don Willett receives coverage from Abby Zeugner for The News & Observer and Adia Robinson for ABC News; Edith Roberts has this blog’s profile.

Alexander Bolton of The Hill reports that the “fight to replace retiring Justice Anthony Kennedy is expected to be the most expensive Supreme Court confirmation battle in history.” Elana Schor of Politico reports that Texas Senator John Cornyn, the second-ranked Republican in the Senate, suggested that the confirmation vote for Kennedy’s successor would happen in September. Brent Griffiths reports for Politico that Senate Majority Leader Mitch McConnell, Republican of Kentucky, defended his push for a confirmation before November: “The last time I looked, there’s no presidential election this year,” McConnell said.

Josh Gerstein reports for Politico that conservatives close to the White House believe that “choosing a female nominee could turn down some of the heat on the abortion issue, give some political cover to female Republican senators like Susan Collins and Lisa Murkowski, and complicate the imagery in TV ads that are expected to savage the nominee.” Jessica Mason Pieklo at Rewire.News comments that it’s likely Trump will nominate a woman “to cast the deciding vote to overturn Roe” and looks at several possible contenders.

At The Hill, Brett Samuels reports that an “adviser to President Trump on judicial issues said Sunday that the choice to replace retiring Supreme Court Justice Anthony Kennedy is not about whether the pick will overturn Roe v. Wade.” And Senator Lindsey Graham, Republican of South Carolina, “asserted on Sunday that Roe v. Wade, the landmark Supreme Court case that legalized abortion nationwide, should not be overturned ‘unless there’s a good reason,’” Max Greenwood reports for The Hill. Steve Peoples reports for the Associated Press that “instead of celebrating publicly, some evangelical leaders are downplaying their fortune on an issue that has defined their movement for decades.” On the other hand, Adam Peck writes for ThinkProgress that “already anti-women activists are plotting how best to take advantage of a weakened judicial branch in order to undermine access to safe abortions.”

On the Democratic side of strategy, “alarmed liberal activists are demanding the hardest possible fight,” but “moderate Democrats are in no rush to stake out any firm position,” reports Elana Schor for Politico. Jonathan Swan at Axios reports Democrats “plan to make health care the central issue in their fight to oppose whomever Trump picks.” In an op-ed for The Week, David Faris criticizes “Democrats’ limp messaging.” And Ben Mathis-Lilley for Slate presents eight ways he’s “seen suggested for how they could do this, ranked from least to most likely to be successful.” [SPOILER: “They’re all tied for least likely to be successful.”]

For The Hill, Ben Kamisar and Jessie Hellmann report that in effort “to pick off two Republican votes to stall Trump’s nominee,’ Democrats’ “biggest targets are Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine), two Republican women who support abortion rights.” Also at The Hill, Mary Tyler March reports that Collins “said Sunday that she would have an ‘in-depth’ discussion with any judge President Trump nominates.” Heather Long for the Washington Post reports that Collins “said Sunday she would not vote for any judge who wanted to end access to abortion in the United States by overturning Roe v. Wade.” Brett Samuels has the story for The Hill. Additional coverage comes from Burgess Everett and John Bresnahan for Politico and Seung Min Kim of the Washington Post.

Among other congressional commentary, Alex Seitz-Wald reports for NBC News that Senator Maria Cantwell, Democrat of Washington, “warned her colleagues on both sides of the aisle that the upcoming confirmation vote could be ‘career-ending’ if it leads to the overturning of Roe v. Wade and other major precedents.” Jordain Carney reports for The Hill that Senator Joe Manchin, Democrat of West Virginia, is “signaling that President Trump should avoid picking a Supreme Court nominee that is openly pushing to overturn Roe v. Wade, instead encouraging him to choose a ‘centrist.’”

Abortion access nationwide following Kennedy’s retirement attracts coverage outside the confirmation context as well. Lauren Holter at Rewire.News reports that overturning Roe “could leave abortion access in the hands of individual states—and many are poised to ban the procedure entirely.” For CNN, Clare Foran reports that over “the past year, state legislatures in Iowa, Louisiana and Mississippi have advanced strict limits on abortion that some lawmakers believe could trigger a successful challenge to the landmark 1973 Supreme Court decision that legalized abortion nationwide.” Additional coverage comes from Francie Diep for Pacific Standard, Emma Green for The Atlantic and Joe Fox, Ann Gerhart and Aaron Steckelberg for the Washington Post. Commentary comes from Scott Lemieux with an op-ed at The Week.

In terms of nationwide consequences for gerrymandering and voting rights, Michael Wines reports for the New York Times that Kennedy’s retirement presents “a potentially crippling threat to growing efforts by voting rights advocates and Democrats to halt gerrymanders by legal and political means.” Stephen Wolf for Daily Kos looks at voting rights and five ways the “Supreme Court will soon shift radically toward the right in ways that threaten democracy and the rule of law.” Additional commentary comes from Colbert King with an op-ed for the Washington Post and Nick Ciccone for Elite Daily.

Dana Milbank at the Washington Post suggests that “backlash is coming” against Republicans, “the deserved consequence of minority-rule government protecting the rich over everybody else, corporations over workers, whites over nonwhites and despots over democracies.” At Rewire.News, Kira Shepherd argues that the Supreme Court “has appeared to embrace the idea of white Christian supremacy—the view that conservative Christianity and mainstream white culture are superior to other religious systems and cultural norms, respectively.”

Lest we forget, last week the Supreme Court also released its decisions in six cases, including Trump v. Hawaii, in which the court voted 5-4 to uphold Trump’s order restricting entry into the United States by nationals of seven countries, and Janus v. American Federation of State, County, and Municipal Employees, in which the court held 5-4 that an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment.

Kenneth Jost comments on his eponymous blog that the “well-worn adage” that “none are so blind as those who refuse to see” “applies perfectly to the Supreme Court’s willfully blind decision to uphold President Trump’s travel ban.” Thomas Berg argues in America Magazine that the Supreme Court missed “an important opportunity to give teeth to one of the nation’s most basic constitutional principles: the prohibition on official religious bigotry.” Noah Feldman for Bloomberg suggests that Kennedy “buried a nugget in his concurring opinion that allows the challengers to go back to the district court and demand a trial on whether President Donald Trump’s travel ban was motivated by anti-religious animus.” A different opinion comes from Shadi Hamid for The Atlantic, because the “Supreme Court, unlike Congress, is not tasked to make moral judgments about the law, at least not explicitly.” Additional commentary comes from David Super, with an op-ed for The Hill.

At Religious Left Law, Steve Shiffren predicts that the Supreme Court’s decision in Janus “will undermine the role of unions in confronting corporate power, a needed check against plutocracy. Additional coverage comes from Adam Liptak for the New York Times and Noam Scheiber for the New York Times.

Liz Farmer reports for Governing that a “big question from governments” after Janus “is whether a weakening of labor unions will translate to lower labor costs in the 22 states that have not already adopted right-to-work laws, which let workers opt out of union fees” that the court just held violated the First Amendment. Elizabeth Bruenig in an op-ed the Washington Post laments that freedom “has been bought and scrapped by businesspeople who cloaked the transaction in the language of liberty.” Rick Pearson at the Chicago Tribune looks at the consequences of the decision for Indiana Gov. Bruce Rauner’s legacy. Additional commentary comes from Douglas Schoen with an op-ed for The Hill.


  • We the People (podcast) moderated by Jeffrey Rosen reviews “the Supreme Court’s momentous recent term.”
  • For E&E News, Amanda Reilly reports that “[m]ajor interstate water disputes highlighted a Supreme Court term that was generally light on environmental law.”
  • In an op-ed for the Washington Examiner, William Perry Pendley comments on two establishment clause cases involving challenges to crosses at public memorials.
  • Fox News carries an op-ed by Barronelle Stutzman, a florist who declined on religious grounds to provide custom flowers for a same-sex wedding and whose case, Arlene’s Flowers Inc. v. Washington, the court sent back to the lower courts for reconsideration in light of Masterpiece Cakeshop v. Colorado Civil Rights Commission.
  • In an op-ed for the Charlotte Observer, Brett Harvey, co-counsel in Rowan County v. Lund, a legislative-prayer case, criticizes the court’s decision not to take up the case.

Recommended Citation: Andrew Hamm, Monday round-up, SCOTUSblog (Jul. 2, 2018, 8:21 AM),