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Yes, Supreme Court Justice Anthony Kennedy’s Retirement Really Is That Dangerous

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This week has seen a rash of upsetting Supreme Court rulings, including the upholding of Donald Trump’s Muslim travel ban, deciding misleadingly named “crisis pregnancy centers” don’t have to reveal their anti-abortion agendas, and issuing a damaging blow to unions’ negotiating power. It may have felt like SCOTUS news couldn’t have gotten any worse. I miss that feeling.

Wednesday afternoon it was announced that Supreme Court Justice Anthony Kennedy will be retiring next month, after 30 years on the bench. The 81-year-old is currently the court’s longest-serving Justice, and has frequently been the swing vote in landmark ideological cases. He voted to legalize same-sex marriage, as well as to preserve Roe v. Wade on numerous occasions. Not that Kennedy is a sure champion for liberal causes. He was, after all, appointed by Republican president Ronald Reagan, and has been behind plenty of less-than-left rulings, most notably having written the majority opinion on the Citizens United case, which restructured campaign finance law in a way that essentially led to the creation of super PACs. He also voted in favor of all three of those aforementioned rulings this week.

Nonetheless, his departure from the bench will be devastating. After Republicans refused to allow President Obama to nominate Justice Scalia’s replacement in 2016, Trump was able to appoint the ultra-conservative and relatively ultra-young Neil Gorsuch. This is a man who once described LGBTQ rights as part of liberals’ social agenda and who has repeatedly favored “religious freedom” over reproductive rights.

Do we dare imagine that when nominating a replacement for the bench, there might be a chance Trump would choose a moderate successor, similar to Kennedy himself, rather than another far-right socially conservative judge like Gorsuch? It doesn’t seem likely. Knowing how fixated Trump is on “loyalty,” it’s not surprising that he has railed against Gorsuch on the issues where they’ve disagreed. It’s not far-fetched to imagine Trump will be vetting his shortlist names based on where they stand in regard to his own existing stances, such as his “zero policy” immigration tactics.

And then there’s issue of abortion. Both parties have long made this their ride-or-die issue, and with Republicans in full control of the government, already controlling the House, Senate, and presidency—not to mention seeing the rise in power of Mike Pence, whose lifelong goal is to outlaw abortion once and for all—reproductive rights have been heavily under attack. Now that Trump has the power to fully flip the ideology of the Supreme Court, what better way to win the favor of his Republican base than to be the administration that reversed Roe v. Wade?

Trump has said that he’ll pick Kennedy’s replacement from the same shortlist he used to nominate Gorsuch. Looking over the names listed, it’s a depressing bunch. Nearly all of them have lengthy track records of opposing reproductive rights. One of them voted against the recent decision to allow a detained immigrant teenager to seek an abortion. Another called Roe v. Wade the “worst abomination in the history of constitutional law.” Another nominee is the man who coined the term “partial-birth abortion.”

Vox has a great in-depth breakdown of all the ways in which “an America after Anthony Kennedy looks significantly different from America before,” and the issues this new court is likely to face, from reproductive rights to capital punishment to affirmative action to civil rights for various communities.

This news is bleak. It feels like a giant step towards the very real Handmaid’s Tale scenario we fear and it’s hard not to burn with rage at everyone who contributed to Trump’s rise to power, starting with every single Jill Stein voter and the infamous 53% of white women who outed themselves as full-on Serena Joys in their complicity.

I’m not going to tell you not to feel that rage. I’m feeling it, along with intense fear. I wish I could offer some sort of hope or solution, but really, all I’ve got is the reminder to know your representatives and to call them often. It really does matter. Follow groups like the ACLU, Planned Parenthood, and NARAL on Twitter or sign up for their email newsletters. Stay informed and stay active.

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(image: Justin Sullivan/Getty Images)

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Vivian Kane (she/her) has a lot of opinions about a lot of things. Born in San Francisco and radicalized in Los Angeles, she now lives in Kansas City, Missouri with her husband Brock Wilbur and too many cats.

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