Legal jargon and Constitutional terminology is not a language most of the world can decipher, let alone fully understand, with ease. The Supreme Court is an institution operating upon the grounds of history—not only the history of the Founding Fathers, the Constitution, and the principles that lay therein, but also by the landmark cases decided on by decades of Supreme Court justices. With so much at stake for the future as the weight of history drags behind, it is no wonder that many different perspectives and opinions are required in making such decisions.
However, on Tuesday, after the Supreme Court upheld the Trump administration’s travel ban in a 5-4 ruling, the division of the court between liberal-leaning and conservative-leaning justices was more evident than ever. Currently, the Supreme Court has four conservative justices: Roberts, Scalia, Thomas and Alito. The four liberal-leaning justices are Ginsburg, Breyer, Sotomayor and Kagan. Justice Kennedy is the notorious swing vote.
Ever since the election of President Trump, talk of Justice Kennedy’s retirement has been circulating the media. Speculation about the appointment of a new justice has been a subject of much contention between the Republicans and the Democrats.
When a Supreme Court justice is appointed, he or she is appointed for life. There is a precedent, but not a rule, that there should be nine justices at a time. When a justice becomes too ill to work, resigns, or dies, the sitting President is allowed to appoint a new justice to the court. The opportunity to appoint a justice to the Supreme Court is a profound opportunity for the President, because it affords them a chance to have some influence on the outcome of rulings long after his own time in the White House has ended.
Most recently, President Trump appointed Neil Gorsuch to the Supreme Court. His appointment was approved by the Senate, and he became a justice in 2017. However, there was controversy surrounding his appointment, not because Gorsuch was an unfit candidate, but because President Obama had actually been the sitting president when the spot in the Supreme Court became vacant after the death of Justice Scalia. The Republican-controlled Senate refused to acknowledge any of President Obama’s nominees, because they deemed him a lame-duck president. Instead, they waited until after the 2016 presidential election to allow the new president to select the new justice.
We are facing a moment of déjà vu.
Justice Kennedy will retire on July 31. After serving as the deciding vote for upholding the travel ban, Kennedy announced his retirement to President Trump in a letter on Wednesday.
His retirement means that President Trump will have the opportunity to fill yet another spot. This time, it is the Democrats who are trying to halt the appointment of another justice until after midterm elections.
The Democrats are building off of the argument used by the Republicans who refused to allow Obama to appoint a justice because he no longer represented the will of the people of the United States. Likewise, the Democrats hope to win the majority of the Senate and the House, thus representing a new will of the people. It is highly unlikely that the Republicans will allow the appointment to wait until midterm elections, and will instead appoint one of President Trump’s nominees as quickly as possible to ensure that the justice represents the conservative ideas with which the Republican-majority Congress aligns.
As for Justice Kennedy, he served an important role in the court for many years. His vote was one that did not adhere to conventional party lines. He often tipped the scale as the deciding vote for many landmark cases such as the right to same-sex marriages and women’s right to get an abortion.