Disaster! (Justice Kennedy Resigns)

Wed Jun 27, 2018 7:54 pm

I probably should and will change the name of this thread, but I can't think of anything more apt from my point of view. Justice Kennedy has announced his resignation, meaning that Trump will be able to name his replacement, and McConnell will be able to ram it through the Senate before the next Congress. This means, among many other things, that abortion will again be illegal in this country very soon. And probably same-sex marriage, as well.

Disaster!

Post by **Jude** » Wed Jun 27, 2018 8:33 pm

Voronwë the Faithful wrote: This means, among many other things, that abortion will again be illegal in this country very soon. And probably same-sex marriage, as well.

Is that your best guess, or an absolute certainty?

Wed Jun 27, 2018 8:54 pm

My best guess. But if he nominates someone similar to Gorsuch and he is confirmed (I say "he" because I seriously doubt that Trump will nominate a woman) it would be a near-certainty.

Post by **Inanna** » Wed Jun 27, 2018 8:59 pm

WTF could he not retire in the Obama years??

Wed Jun 27, 2018 9:05 pm

Well, Scalia passed away in the Obama years and Obama still wasn't able to replace him. Kennedy's replacement would largely be a moot point if Merrick Garland was on the court instead of Gorsuch.

Post by **Inanna** » Wed Jun 27, 2018 9:16 pm

Since the timing of retirement can be chosen, I’m thinking like something early 2013.

This is horrible. Just horrible.

Wed Jun 27, 2018 9:27 pm

Really, the only way that this resignation will not lead to the end of legalized abortion and same-sex marriage would be if Susan Collins and Lisa Murkowski refuse to confirm a nominee that is not committed to upholding Roe v. Wade and Obergefell v. Hodges, which is think is quite unlikely.

Post by **yovargas** » Thu Jun 28, 2018 1:18 am

Is he resigning right away? If he waited till after the midterms, the Dems could at least maybe block any really extreme nominations....

Post by **tinwë** » Thu Jun 28, 2018 1:29 am

July 31. Yes, this is disaster.

Post by **Frelga** » Thu Jun 28, 2018 1:47 am

McConnell already said he isn't going to wait until the midterms.

Is there any explanation for the urgency of his retirement?

Post by **Inanna** » Thu Jun 28, 2018 2:12 am

Do such SCOTUS rulings get overturned easily? I Mean, when they passed, they became law, no?

Thu Jun 28, 2018 5:46 am

Frelga wrote:Is there any explanation for the urgency of his retirement?

The Kennedy watch has been going on for several terms now. Last year many thought he was going to retire when he did not initially hire new clerks. I think he just decided it was time. He is, after all, 83 years old, and he has been on the court for 30 years. That is a long time.

Inanna wrote:Do such SCOTUS rulings get overturned easily? I Mean, when they passed, they became law, no?

Justices are supposed follow precedent under the doctrine of stare decisis unless they determine that the previous decision was clearly incorrect. For instance, the decision of Plessy v. Ferguson, which held that segregation was legal if it was "separate-but-equal" was overturned in the landmark Brown v. Board of Education case. I'm sure that to conservatives, overturning Roe v. Wade would be considered equivalent to that.

Post by **Cenedril_Gildinaur** » Thu Jun 28, 2018 8:15 am

Voronwë the Faithful wrote:This means, among many other things, that abortion will again be illegal in this country very soon. And probably same-sex marriage, as well.

How confident are you in those predictions?

Post by **Dave_LF** » Thu Jun 28, 2018 1:54 pm

To actually make abortion and/or gay marriage illegal nationwide would require new bills from Congress, would it not? I think either one would be difficult to get through even now, and even if the Supreme Court promised to stay out of the way afterwards.

Thu Jun 28, 2018 2:08 pm

Cenedril_Gildinaur wrote:
Voronwë the Faithful wrote:This means, among many other things, that abortion will again be illegal in this country very soon. And probably same-sex marriage, as well.
How confident are you in those predictions?

I'm going to say probably 70-30 for abortion and 50-50 for same-sex marriage. Of course, that is only a rough estimate. I think it largely comes down to whether Susan Collins and Lisa Murkowski are willing to buck the GOP leadership and reject a strongly anti-abortion nominee. And even if they did, vulnerable Democratic senators like Manchin and Heitkamp might vote to confirm. I think it would be harder to overturn Obergefell than Roe because public opinion has turned so sharply. Normally, a decision that has been in place for as long as Roe has would be due more deference, but I think Roe is the exception to that, as strongly criticized as it has been all along.

And of course as Dave points out, it is not that abortion or same-sex marriage will be illegal nationwide. Rather it will be on a state-wide basis. CNN's legal analyst Jeffrey Toobin predicted that abortion will be illegal in 20 states within 18 months. That sounds about right to me.

Post by **yovargas** » Thu Jun 28, 2018 2:08 pm

Dave_LF wrote:To actually make abortion and/or gay marriage illegal nationwide would require new bills from Congress, would it not? I think either one would be difficult to get through even now, and even if the Supreme Court promised to stay out of the way afterwards.

A more precise statement would be that the future court would allow individual states to make abortion or same-sex marriage illegal.

eta - I'm less worried about marriage as I think that ship has largely sailed. As I recall, it has majority support even among Reps. Even if a few states pursue laws to not perform them, I doubt any would pass laws to not acknowledge marriages performed elsewhere, which would make it easy to get around.

Post by **Dave_LF** » Thu Jun 28, 2018 2:15 pm

Yes, that I could see.

Post by **Inanna** » Thu Jun 28, 2018 5:54 pm

Yes, I can see that. Women, especially worn in red states will be hammered. I forgot about the state thing - that seems like a blessing now.

Post by **Primula Baggins** » Thu Jun 28, 2018 6:36 pm

Not all blue states yet have solid abortion rights laws—New York is apparently one of them. There will be some scrambling this year.

Post by **Cerin** » Thu Jun 28, 2018 6:38 pm

I recall how aggravating it was when the Senate refused to consider Merrick, and how infuriating their supposed rationale was. I thought it was plainly wrong of them not to do their constitutional duty and consider Obama's nominee. Democrats all railed against this (ineffectually). But now I've received at least a dozen emails from leftist activist groups with petitions urging Democrats to propose the same thing -- no SCOTUS hearings until after the election (although I don't know that Dems have the power to actually prevent hearings, as the Republicans did).

It seems to me if the claims of undermining the constitutional process were valid then, they are equally valid now, and people should not be urging Congress to double down on a bad precedent. I just wondered what the rest of you thought about that. Even though it's a disaster in the making, shouldn't we urge respect for the constitutional process?

edit

make that a half dozen

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