Justice Anthony Kennedy has announced his retirement from the Supreme Court. Picking his successor will be highly consequential, and one need only rewind history to the vacant seat that ultimately became Kennedy’s 30 years ago to see the real-world stakes for millions of Americans.
During his Supreme Court tenure, Justice Kennedy cast critical votes in landmark decisions upholding individual dignity and autonomy. He voted to preserve the core holding of Roe v. Wade in Planned Parenthood v. Casey, and reaffirmed the Court’s commitment to reproductive rights again two years ago in Whole Woman’s Health v. Hellerstedt. He also authored a number of decisions protecting the rights of gay people, including the decision guaranteeing same-sex couples the right to marry.
{mosads}Justice Kennedy’s record is far from perfect. He often sided with corporations over workers, and endorsed the anti-abortion movement’s efforts to ban certain methods of abortion and to seemingly deceive women seeking reproductive health care. Nevertheless, Kennedy was essential to securing individual liberty and equality at the Court.
But those rights could just as easily have been lost years ago. When Justice Lewis Powell — a long-time swing vote on the Court — retired in 1987, President Ronald Reagan nominated the arch-conservative D.C. Circuit Judge Robert Bork to fill his seat. Judge Bork’s nomination was defeated by the Senate, and the seat ultimately went to Justice Kennedy.
Had Judge Bork been confirmed to the Supreme Court, America would be a very different country today. Judge Bork did not believe that the Constitution protected the right of women to terminate a pregnancy. He also rejected settled Supreme Court precedent stating that the Constitution guarantees individuals a sphere of privacy free from unwarranted government intrusion.
Judge Bork also would have undermined civil rights legislation. He called the historic Civil Rights Act of 1964 a threat to individual freedom, and opposed the idea that government could prohibit businesses from discriminating. And while on the D.C. Circuit, Bork ruled that it was fine for the United States Navy to discharge an officer solely because he was gay.
Judge Bork’s jurisprudence had little room for women, gay people, or people of color. Instead of becoming a more inclusive society under Justice Kennedy, a confirmation of Judge Bork to the Supreme Court would have made the country a much more hostile place for many Americans.
Fortunately, the United States Senate understood that decades of progress — both past and future — hung in the balance. The day that Judge Bork’s nomination was announced, one senator, Ted Kennedy (D-Wash.), warned from the Senate floor what the nominee foretold for America’s future, “Robert Bork’s America is a land in which women would be forced into back-alley abortions,” and “the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”
We were spared from living in Bork’s America because the Senate stood up and rejected a nominee who did not support our core legal precedents, and who would swing the balance of the Court for a generation.
The Senate took seriously the responsibility that the Constitution’s framers gave it to review the president’s Supreme Court nominees, and to ask whether a nominee can be trusted to treat all people fairly with equal respect under the law.
Three decades later, today’s Senate must be even more vigilant when considering a replacement for Justice Kennedy. A modern Supreme Court nominee is unlikely to have Judge Bork’s long history of uninhibited public statements and writings.
The Senate must now be on guard against a stealth extremist — especially given President Trump’s vow to exclusively nominate justices who will overturn Roe “automatically.”
Nominees to our highest court shouldn’t be allowed to get away with hiding the ball by refusing to answer the Senate’s questions, either. The Constitution gives the Senate the final say over who joins the Supreme Court.
A single Justice’s judicial philosophy can affect the lives of millions of Americans. Senators have the right to know that philosophy before giving a nominee life tenure to hold such an awesome power. A nominee that deprives the Senate of this knowledge simply does not deserve to be on the Court.
There are encouraging early signs that some senators recognize these stakes. The day that Justice Kennedy announced his retirement, Sen. Patty Murray (D-Wash.) invoked the parallels to Judge Bork’s nomination. “Robert Bork was rejected, and Justice Kennedy took his place,” she said on the Senate floor. “And today we face similar stakes right now, in this moment.”
The Senate must stand ready to ensure that any nominee to serve on the Supreme Court commits to upholding Justice Kennedy’s core legacy of safeguarding the rights and dignity of all Americans. As the vast difference between Robert Bork’s America and Anthony Kennedy’s shows, nothing less than the future of the country is at stake.
Joel Dodge is a staff attorney for judicial strategy at the Center for Reproductive Rights, working on innovative legal strategies to advance the current reproductive rights framework. Before joining the Center, he was an associate at Stroock & Stroock & Lavan LLP, where he worked on a wide range of civil litigation and pro bono matters.