Replacing Anthony Kennedy

Washington is about to go nuts. Anthony Kennedy, the swing vote on social issues, as announced his retirement. It need not. There will always be a judge at the center. It could be Chief Roberts, who saved health care mandates, Gorsuch (Kennedy’s former Clerk) or the new appointee (who could be another Souter).

Quite a bit of speculation will be on abortion law, although it is unlikely to change. Only Scalia believed the pro-life movement/Federalist Society line that abortion is to be decided by states and should be banned. Thomas believes that the Court has the power to do so by recognizing life at an earlier point in gestation (under the Civil Rights Act of 1875 he is correct, but only because the 14th Amendment gives Congress that power). Roberts, Alito and Kennedy ruled that Roe was settled law and that partial birth abortion could be banned with the Commerce Clause (even though the same clause cannot require insurance mandates).

The majority is not going to overrule privacy. They all supported it (not sure about Gorsuch) on gay marriage and sodomy, nor will it rule against federal supremacy in equal protection. To overturn Roe judicially, they would have to do both. While the right wing wants those things, it will never get them.

After the Second Circuit affirms the District Court applying the protected class findings of the Gay Marriage decisions to the Civil Rights Act, especially with regard to employment discrimination, the Court may simply let the precedent stand and go national, although it could just as easily take the case for the ceremony of the thing. Even if it is close, Roberts will be the fifth vote with the liberals. He helped prepare the winning side in Roemer v. Evans, which first recognized that animus toward gays was not a legitimate reason for laws persecuting them. He will vote that way now (and take Alito with him).

One thing we can count on: that the new justice will support Capitalism, as the others always do, unanimously. American law is biased in that way, so capitalism must be defeated from the inside.

One final thing. You can almost count on Trump’s stupidity in trying to make sure the nominee is loyal to him on impeachment, which will only get him in more trouble. Roberts, of course, is the only Justice involved. He will be presiding over the Senate trial and won’t have a vote.