Tuesday, July 3, 2018

Concerned about Justice Kennedy's replacement: 'Go out and organize'

Here is an excerpt from Duquesne Law Professor Bruce Ledewitz's opinion piece for Jurist:
Jurisprudentially, Justice Kennedy’s replacement is likely to further consolidate the conservative interpretive methodology of originalism. Justice Gorsuch was perhaps the first expressly originalist Supreme Court judicial nominee since the disastrous confirmation fight over Robert Bork. But he will not be the last. Justice Kennedy’s replacement will probably also publicly embrace originalism.
As monumental as all this sounds, there is reason to question how important a more conservative Supreme Court will turn out to be. The most obvious positions of the post-Kennedy Court are likely to be negative. The Court will be less protective, or not protective at all, of the right to choose, the right to same-sex marriage, the rights of criminal defendants and the right to vote. But the Supreme Court will not actually threaten these rights. The Justices simply may not defend them.
There are exceptions to this judicial passivity, of course. The new Court will be even more anti-union. It will protect big campaign contributors from regulation. It will protect religious believers in the exercise of conscience. And the Court may even attempt to limit the power of Congress to legislate.
But even in its more affirmative positions, these actions by the Court would still be marginal in terms of American public life as a whole. Such actions may make it a little more difficult to overturn the current status quo, but that is all the Justices really can do.
That leaves matters to the rest of us—the voters. For the retirement of Justice Kennedy may have the unexpected result of leading to a genuine rebirth of American democracy. Yes, efforts are made, often successfully, to interfere with the will of the voters. Gerrymandering is openly practiced. Voter ID laws are adopted for partisan purposes. The anti-democratic structures of the Constitution—the Electoral College and the makeup of the Senate—also restrict majority rule. And big money wants to have its way.
Yet, with all that, the American people are not helpless. Basically, as the stalled effort to repeal Obamacare demonstrated, the will of the people still decides policy in America. We can have the country and the future that we insist upon. The question is really one of commitment. Anyone unhappy or fearful because of the retirement of Justice Kennedy has a clear path to follow—as the labor movement used to say, “go out and organize.”
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