Justice Anthony Kennedy’s retirement from the Supreme Court gives President Trump the chance to replace the court’s long-serving swing justice with an arch-conservative. Instead of a world in which the court divides between four on the left and four on the right, with the centrist Kennedy up for grabs, come October there will be five unwavering conservatives, enough to overturn Roe vs. Wade.
Some progressives are mustering for protests now and for “court packing” later, when Democrats regain power. Some would like to waylay the nominee’s confirmation a la Merrick Garland’s. Some suggest pivoting to state courts that are potentially more receptive to the rights of workers, women and minorities.
There is something else that can be done — something easy to implement and likely to pay dividends for years to come. Starting this October, the four progressive justices can be more strident, inventive and ambitious in their dissents.
It’s an idea that warrants amplification: The payoff may seem small. What good, for example, comes from Justice Elena Kagan penning an angry dissent, as she did in the recent Janus union case, accusing a slim conservative majority of “weaponizing the First Amendment” and taking aim at American workers? And who really cares if Justice Sonia Sotomayor “dissents” — as opposed to “respectfully dissents” — as she did in the Muslim travel ban case? The lives of those the court marginalizes aren’t materially benefited from sharper internecine squabbles.
Bold, defiant dissents can nurture a left-liberal farm team.
Yet, as Harvard’s Mark Tushnet writes, knowing there’s no hope of winning over a swing justice frees the court’s progressives to make “utopian rather than pragmatic can-we-get-a-fifth-vote-for-this-today? arguments.” Advancing unabashedly progressive positions (they need not be utopian) can, over time, make a real difference.
First, bold, defiant dissents can pull the court to the left. For years, progressive justices have tacked to the center, principally to win over Kennedy. In the process, they’ve often abandoned left-liberal constitutional theories. But now, liberated from that strategic quest (the far-less-compromising Chief Justice John Roberts will be the new median justice), the progressive four can broaden the court’s discourse to reflect the true range of lay and scholarly thought on such issues as poverty, voting rights, war powers, criminal justice and the environment.
Second, bold, defiant dissents can nurture a left-liberal farm team. It isn’t just Kennedy’s immediate colleagues who have been playing the “get Kennedy’s vote” game. Progressive lower court judges, lawyers and scholars likewise can count to five — and they too have long been in the business of crabbing and moderating their positions accordingly. Now, however, those judges, lawyers and scholars will have newfound incentives and institutional cover to develop and advance creative, bold arguments that may, one day, find a receptive majority, in the Supreme Court, in Congress, or in the “court of history.”
William Rehnquist’s career proves the point. Dubbed the “lone dissenter” during the 1970s, when the court skewed left, the future chief justice’s dissents kept the fire lit for then-marginalized conservatives. Rehnquist proffered theories that not only eventually commanded majorities, but also provided young conservatives cover to develop radical positions far from the then-judicial mainstream. Indeed, without the lone dissenter pushing legal thought rightward, it is likely that Antonin Scalia would have had trouble getting confirmed, let alone getting confirmed unanimously, as he was in 1986.
Third, bold, defiant dissents can expose and undo the court’s ideological pathologies. Progressives in search of a fifth vote have been too kind to conservative legal dogma, which all-too-often has been presented to the American public as neutral, settled principles of law. Now, however, the progressives can vigorously challenge the majority’s commitment to the Framers’ original meaning, a reading of the Constitution that ignores the legal, political and demographic changes wrought by modernity. And they can forcefully reject the court’s endorsements of a formal equality that turns a blind eye to the realities of structural poverty, racism, sexism and homophobia. Denouncing such dogma on Kennedy’s watch risked offending his judicially bourgeois sensibilities. No longer.
Progressives cannot and should not rest their hopes entirely on the fiery rhetoric of four justices, all of whom are accustomed to judicial moderation and some of whom show centrist leanings independent of Kennedy’s gravitational pull. But constructing a solidly left-liberal front — to match the far-right flank Rehnquist established some 40 years ago — ought to be a key feature of any long-term progressive strategy.
Jon D. Michaels is professor of law at UCLA School of Law. He is the author of “Constitutional Coup: Privatization’s Threat to the American Republic.”