In the days after the 2016 election, it was common to feel shell-shocked. After so long fighting to avoid the worst-case outcome, it had come anyway, and while no one knew for sure what was going to happen next, we could all guess that it would be catastrophic. That feeling returned on the twenty-seventh of June when Supreme Court Justice Anthony Kennedy announced his retirement.
Tonight, Donald Trump announced that 53-year old Maryland native Judge Brett M. Kavanaugh would replace Justice Kennedy. J.D. Vance, the author of the “economic anxiety” bible Hillbilly Elegy, said that Kavanaugh “deeply believed in the constitutional separation of powers as a means for ensuring governmental accountability and protecting individual liberty.”
It would be a fun mental exercise to argue that surely Kavanaugh would defend a woman’s “individual liberty” to make her own medical decisions, or his belief in “governmental accountability” would lead to him curbing the Trump administration’s authoritarian tendencies. But this is hardly time for fun mental exercises.
For years, Kennedy has served as the court’s swing vote on crucial cases. His legacy is mixed– he is well known for his critical vote in Obergefell v. Hodges, which legalized same-sex marriage. He also protected access to abortion in Whole Women’s Health v. Hellerstedt. However, Kennedy ruled to strike down part of the Voting Rights Act in Shelby County v. Holder, and, was the deciding vote in the now infamous Citizens United case that allowed unlimited campaign spending.
The 2018 Supreme Court session saw Kennedy serving as the swing vote on a number of important cases–upholding the Muslim travel ban in Trump v. Hawaii, gutting public sector unions in Janus v. AFSCME, and protecting fake reproductive healthcare centers in National Institute of Family and Life Advocates v. Becerra. We will likely be seeing the fallout from these decisions for centuries. And then, in the same day that the Janus decision came down, Kennedy retired, handing another Supreme Court seat to the ultra-conservative Trump administration. This will be his legacy–a man who knew what the right side of history looked like and willingly turned his back on it.
It is difficult to overestimate the scope of the danger that social progress in America faces right now. The Supreme Court is the final word on issues ranging from access to abortion to voting rights, and it will now have a firmly Republican majority. I use the word “Republican” deliberately because it is utterly fallacious to pretend that the court is anything resembling nonpartisan. For decades there has been a concentrated and well-funded movement by conservatives to roll back advancements America has made towards equality using the law, ever since courts proved a challenge to the conservative white male order. This was the mission of William F. Buckley and Ronald Reagan, and we are finally seeing it come to completion now, spearheaded by groups like the Alliance Defending Freedom, the Liberty Counsel, and the American Center For Law and Justice.
The tragedy of the Voting Rights Act was a canary in the coal mine. So was Citizens United. And then, in 2016, Mitch McConnell refused to even hold a hearing for President Obama’s Supreme Court nominee, ignoring the will of the majority of Americans who chose Obama as their president and the rules set out in the Constitution. The knowledge that the Supreme Court hung in balance drove evangelicals out en masse in 2016, even as progressives refused to vote for the “lesser of two evils.”
Understandably, activists are demanding action from the Democratic Party. While this is not a complete waste of time, the Democrats have limited ways of blocking Kavanaugh. Minority Leader Chuck Schumer can’t stop his confirmation because McConnell eliminated the filibuster. To stop Kavanaugh, two Republicans would have to break party lines. On a chance to guarantee a conservative Supreme Court. The chances here are slim to none
Here is what you should think of when you think of Kavanaugh. When Jane Doe, a 17-year-old undocumented immigrant detained by the U.S. government, sought access to an abortion, the Trump administration–the administration responsible for her detention– tried to keep her from getting the procedure, forcing her to have a sonogram and receive religious counseling. When the D.C. Circuit Court ruled in her favor, Kavanaugh disagreed, stating that the ruling created “a new right for unlawful immigrant minors in U.S. Government detention to obtain an immediate abortion on demand.”
I don’t have a hopeful note to end this on. What is essential in moments like these is to draw on the past for strength. Our generation is not the first to face seemingly insurmountable threats to social progress–the arc of the moral universe never bends on its own. We stand on the shoulders of people who saw tragedy and didn’t give up, and we can’t give up either.
On the twenty-seventh, Congressman John Lewis tweeted: “Do not get lost in a sea of despair. Be hopeful, be optimistic. Our struggle is not the struggle of a day, a week, a month, or a year, it is the struggle of a lifetime. Never, ever be afraid to make some noise and get in good trouble, necessary trouble.” In the coming months and years, when things get difficult, remember his words.
Communications Director, College Democrats of Maryland