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Jordan Candler / Jun. 28, 2018

Six Potential Targets of Trump’s Supreme Court

Replacing Kennedy might just mean overturning some really bad precedents.

In a piece devoted to Justice Anthony Kennedy’s departure, National Review’s David French lays out the case for why the “the consequences of Kennedy’s retirement — both legal and political — are immense.” Justice Kennedy is universally regarded as a swing jurist. French observes that “he wrote or joined a number of solid opinions that protected and reaffirmed core constitutional liberties, including liberties protected by the First and Second Amendments.” But Kennedy also “served as the primary judicial guardian of abortion rights and was more responsible than any other justice for the relentless legal march of the sexual revolution.” Therefore, the addition of another originalist will be unquestionably influential.

The Washington Examiner editorial board highlights six pivotal cases that could be overturned without Justice Kennedy: Roe v. Wade, which “struck down all state abortion restrictions in 1973” (Kennedy himself voted in support of Planned Parenthood v. Casey in 1992 — a case that would have overturned Roe v. Wade); Kelo v. New London, which in 2005 “re-established that private property can be taken from owners through eminent domain for nonpublic uses”; Obergefell v. Hodges, which “established in 2015 that all states are constitutionally mandated to recognize marriages between two people of any sex”; Massachusetts v. EPA (2007), which mandates that “the Environmental Protection Agency must regulate carbon dioxide”; U.S. Term Limits, Inc. v. Thornton (1995), which stipulates that “individual states … may not set rules for would-be members of Congress that are more restrictive than what’s outlined in the U.S. Constitution”; and Kennedy v. Louisiana (2008), which “blocked the expansion of the death penalty for violent crimes where the victim did not die and was not intended to be killed.”

Kennedy’s departure doesn’t mean all of these will be overturned in the near future. Some (most?) may not be overturned at all. However, another originalist at least denotes that all of these cases face the possibility of being reversed. French ends his op-ed with a cautionary tone: “We’ve been here before. We’ve had opportunities to remake the Court. President Reagan and the first President Bush together appointed a majority of the Supreme Court. Yet Roe endured, and the Court even moved left on key issues.” True enough. However, many of the people on Trump’s Supreme Court list are exceptional, bona fide conservative candidates. It’s certainly not unrealistic to envision an A-team-caliber Supreme Court majority whose decisions will result in a defense of life (literally), Liberty and justice unforeseen in our modern day.

(Edited.)

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