The retirement of Justice Anthony Kennedy from the Supreme Court, and the imminent nomination of his replacement by Donald Trump, confirm that the United States has entered a new era. Or rather, it has left an old one.
We might or might not be seeing the birth of an institutionalised, twenty-first century populism; we’ll have to wait and see who Trump nominates and how he or she acts. But we are seeing the judicial demise of big-state liberalism.
On the face of it, the change is almost invisible. With Kennedy on the bench, five of the nine Supreme Court judges were nominated by Republican presidents, and four were nominated by Democratic presidents. With Kennedy replaced by a nominee congenial to Donald Trump and tolerable to the Republican majority in the Senate, five of the nine judges will still be Republicans nominees and four will still be Democrats.
The difference is one of ideology and context. Anthony Kennedy was nominated by Ronald Reagan, but he sided with the ‘liberal’ members of the court on crucial decisions on abortion rights, the death penalty, detainees in Guantanamo Bay, and gay rights, including the 2015 ruling that established the right to same-sex marriage in federal law.
Kennedy also wrote the 2016 decision that upheld the use of race as a criteria in college admissions. Has the polarisation of American politics caused Republican-nominated judges to become more “conservative” in their findings, and Democratic-nominated ones more “liberal” since Reagan’s day?
The judges nominated by the first President Bush, David Souter and Clarence Thomas, are less predictable than one of those nominated by the second President Bush, the self-described “practical originalist” Samuel Alito. The opinions of the judges nominated by Bill Clinton, Ruth Bader Ginsburg and Stephen Breyer, are less predictable than those nominated by Barack Obama, Sonia Sotomayor and Elena Kagan. Yet George W. Bush’s other nominee, the generally conservative John Roberts, often joined Anthony Kennedy in aligning with the “liberal” judges.