John Davis Consulting

Solid Conservative U.S. Supreme Court Now Probable in 2018 Following Justice Anthony Kennedy’s July Retirement

June 27, 2018         Vol. XI, No. 12         4:13 pm

U.S. Supreme Court Justice Kennedy to Resign July 31

U.S. Supreme Court Justice Anthony Kennedy made a surprise announcement today of his intention to retire July 31, opening the opportunity for President Trump to solidify a conservative advantage on the nation’s highest court this year.

Kennedy, nominated by President Ronald Reagan in 1988, was often the court’s swing vote. He cast the deciding votes on many controversial decisions including the constitutional right to same-sex marriage, and Citizens United, the decision giving unlimited free speech rights to groups making independent expenditures during political campaigns.

It was also Kennedy who often sided with conservatives, like many of the rulings this month:

• June 4: Colorado baker, who refused to make a wedding cake for a gay couple, has a constitutional right to have his religion treated with impartiality by government
• June 18: “Extreme Partisan Gerrymandering” cases in Wisconsin and Maryland “punted” back to lower courts
• June 21: OK’d sales taxes on online purchases (NC losing $400 M yearly per NCRMA)
• June 25: “Extreme Partisan Gerrymandering” case in NC “punted” back to lower courts
• June 26: Pro-life crisis pregnancy centers cannot be forced to provide information re: taxpayer-funded abortions
• June 26: Trump’s Travel Ban on 7 mostly-Muslim countries upheld on president’s right to secure borders
• June 27: Can’t force government employees to pay union dues

The U.S. Supreme Court currently consists of a four-member liberal wing (Breyer, Ginsburg, Kagan, Sotomayor), and four conservatives (Alito, Roberts, Thomas, Gorsuch).

Kennedy, 81-years-old, is leaving the court at about the average age of retirement from the court, which is 79-years-old.  Two other justices are near or past the average retirement threshold: Ruth Bader Ginsburg, a liberal, 84, and Stephen Breyer, also a liberal, 79.

If Republicans hold on to the U.S. Senate majority in 2018, President Trump may have an opportunity to replace a liberal member of the court with a conservative. Regardless, the social and political consequences of a solid 5-4 conservative court will be as disruptive as it will be transformative for decades to come.

A conservative U.S. Supreme Court will be able to trump all liberals on lower courts.

Conservative Supreme Court Will Trump Lower Court Liberals

As important as the Supreme Court is, they only hear 70-80 cases a year out of 7,000-8,000 requests, issuing 50-60 opinions.  Most of the heavy lifting at the federal level is done in the U.S. District courts (673 district judgeships) and the U.S. Courts of Appeals (179 circuit judgeships), where 350,000-400,000 cases are being managed at any given time.

According to The Brookings Institution:

• In 2009, at the beginning of the Obama administration, Republican appointees held 56% of the federal circuit court judgeships to only 36% held by Democratic appointees (8% vacant)
• In 2016, after 55 confirmed Obama nominees, Republican appointees made up only 42% of the federal circuit court judgeships to 53% held by Democratic appointees
• In January 2009, 10-of-13 U.S. Circuit Courts of Appeals had Republican-majority appointees to only 1 Democratic-majority court; no majority on 2 courts
• In January 2016, only 4-of-13 U.S. Circuit Appeals courts had Republican-majority appointees to 9 Democratic-majority circuit courts

Now, with the resignation of Justice Kennedy and a solid 5-4 conservative bloc on the court likely, the next Supreme Court will routinely thwart the lower court rulings of liberal Democratic appointees.

Kennedy’s resignation makes it all the more imperative that both parties make winning the majority in the U.S. Senate their most important goal this fall.

Although historically, the first midterm elections during a new presidential administration do not favor the party in the White House, the GOP structural advantage in the U.S. Senate races in 2018 will be a formidable challenge for Democrats:

• Democrats are defending 25 seats, 10 in states Trump won
• Republicans are defending 9 seats, 8 in states Trump won

Bottom line: The 2018 midterm elections are coming down to the highly anticipated Democratic wave versus the Trump seawall of successes. The economy/jobs/wages. Government reform/draining the swamp. Trade deals. Military might. Denuclearization and reunification of Korean peninsula. FBI and DOJ scandals. Another conservative Supreme Court nominee likely. All building towards a positive referendum on the White House this fall.

Without a doubt, June is on track to become the most consequential month of the election year.

END –

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John N. Davis

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