Time Article Argues the ‘Era of the Swing Justice Is Over’ on Supreme Court

August 13th, 2018 5:56 PM

Ever since President Trump nominated U.S. Circuit Judge Brett Kavanaugh on July 9 to fill the seat on the Supreme Court left open by retiring “swing justice” Anthony Kennedy, those on the left and in the media have hammered the pick as everything from “controversial” to “cruelly regressive.”

While some swore they’d do anything to prevent the Supreme Count from turning more conservative, Time magazine writer Abigail Simon asserted that Kavanaugh is almost certain to be approved, so liberals and Democrats must adapt to the situation until they regain control of the Senate, whenever that happens.

Simon began by stating:

When Supreme Court Justice Anthony Kennedy announced his retirement in June, Avery Gardiner began saying “No, no, no” at her desk so loudly that she interrupted a meeting in a conference room next door.

The co-president of the Brady Campaign to Prevent Gun Violence knew then that Kennedy, who has historically been a swing vote for the Court -- occasionally siding with liberals on a few key cases -- would likely be replaced by a more consistent and stalwart conservative.

“Although Kennedy joined with the conservative majority on pro-gun rights decisions, the Court has passed up every opportunity to hear a Second Amendment case since 2010,” Simon said. “Gardiner and other liberals worry that could change without Kennedy’s moderating presence on the court.”

However, the columnist noted: “Advocates for everything from abortion to same-sex marriage to affirmative action are concerned that the court will not only rule more consistently against them, but also take on issues it has avoided in recent years.”

“At the same time,” Simon added, “some see an opportunity for liberals to begin building a counterweight to the powerful conservative legal machine that helped elect Trump and gave him the opportunity to name two originalist justices to the nation’s highest court.”

She noted that “Republicans have a 51-person majority in the Senate, but with Sen. John McCain fighting brain cancer and unlikely to vote, they can afford only one defection,” so “[l]iberal activists are targeting GOP senators such as Susan Collins of Maine and Lisa Murkowski of Alaska,” without losing any red state Democrats.

Cornell University's Josh Chafetz syated that any attempt to block that approval “seems really unlikely.” Simon then noted: “In short, as some pundits say, the era of the swing justice may be coming to an end at the Supreme Court for the foreseeable future.”

“It took years for conservatives to get to this point,” Simon said, “because seats on the Supreme Court open up only when a justice retires or dies.”

As a result, Democrats will have to focus on victories in lower courts and be very aggressive and very smart in challenging things, the columnist stated.

Either way, “a conservative Court is going to be an ongoing challenge that Democrats may grapple with for decades,” Simon asserted.

“This is going to be a slog,” Democratic strategist Colin Strother added. “This is going to be a process that takes years -- that takes decades. And it may get worse for us before it gets better.”