Anxiety in the Valley over Supreme Court direction

  • Bob Tetreault of Greenfield speaks about the retirement of Justice Kennedy on Thursday. Photo for the Recorder/Vivian Myron

  • John and Patricia Gerry-Karajenes of Buckland speak about the retirement of Justice Kennedy on Thursday. Photo for the Recorder/Vivian Myron

For the Recorder
Friday, June 29, 2018

Supreme Court Justice Anthony Kennedy announced his retirement Wednesday after 30 years of rulings, the majority of which leaned conservative. However, Kennedy was also known to take more of a centrist view at times and was a crucial swing vote on progressive issues such as abortion rights, affirmative action and gay rights.

Kennedy wrote most of the opinion that legalized same-sex marriage in 2015, affirmed Roe v. Wade in 1992 and cast mixed votes on affirmative actions programs meant to promote diversity.

The 81-year-old was appointed in 1988 by Ronald Reagan and said that he is retiring to spend more time with his family.

“I’m deeply frightened at the prospect that Donald Trump may have the opportunity to select another member of the Supreme Court,” said U.S. Rep. Jim McGovern, D-Worcester. “This gives the president and his allies the chance to undo progress on women’s rights, LGBTQ rights, worker’s rights, civil rights, you can go right on down the list.”

McGovern said there were many rulings that Kennedy presided over that he disagreed with, but that in important, key cases, Kennedy was a deciding vote “in the direction of progress.” He said is ready and willing to “fight and think outside the box” if Trump nominates an extremely conservative judge.

“What it highlights is the importance of these midterm elections,” McGovern said. “Democrats need to take control of the House and the Senate. We need to put an end to Trump’s bad policies and his bad appointments and we need to be moving this country forward instead.”

U.S. Rep. Richard Neal, D-Springfield, said the nomination and ultimate appointment of a new Supreme Court Justice will ignite the next battle in legislative life — a sentiment Paul M. Collins Jr. agreed with.

Collins, a professor at the University of Massachusetts Amherst, is a leading expert on judicial politics and the author of two books and more than two dozen articles on the Supreme Court.

“In the immediate future, this is probably going to be the most divisive issue in American politics,” he said, adding that if Trump is able to get the type of nominee he wants on the Supreme Court the country is likely to see further restrictions on abortion rights, the possible end of affirmative action on college admissions and many gun regulations being struck down.

In 1992, Kennedy cast the decisive vote to uphold a woman’s right to abortion, affirming the 1973 landmark Roe v. Wade decision, which made abortion legal nationwide. On issues related to affirmative action, Kennedy took mixed stances. In 2007, he was the swing vote against public school assignments that took students’ race into account to create diversity across districts in Seattle and Louisville. However, in 2016, he was the swing vote to uphold an affirmative action program at University of Texas at Austin.

In 2008, Kennedy ruled with the four more conservative justices that the Second Amendment protects the individual right to own a gun for private use, not only in a militia. However, the ruling left unanswered questions and room for continued gun regulation, short of an absolute ban.

Even so, Collins said Massachusetts may not see the effects of an overturning of Roe v. Wade, but that changes to affirmative action or gun laws could have an effect on the commonwealth, noting the state’s many colleges and universities with affirmative action policies and the state’s strict gun laws.

Collins said that if Roe v. Wade is overturned, the decision to legalize abortion would go back to the states and in Massachusetts it would be unlikely that the state’s legislature would make a law banning abortion.

Unlike Collins, Neal said he found it hard to believe that a new court justice would reverse long held decisions like abortion and gay marriage. “I don’t see that happening. It would be deemed much more political than the court is generally prepared to undertake,” Neal said. He did say he believed those topics may come under more scrutiny in the future.

Ultimately the Senate is the body that holds the power to confirm a Supreme Court nominee, but Neal said he would be “more than happy” to support the Senate postponing the acceptance of a nominee until after the mid-term elections using the same precedent Senate Majority Leader Mitch McConnell, R-Ky., did in President Barack Obama’s attempted appointment of Merrick Garland.

With the option of a filibuster no longer on the table because of the recent elimination by Republicans during the confirmation hearings for Justice Neil Gorsuch, Collins said the only strategy Democrats would have to stop a Trump nominee before mid-term elections would be for senators to ensure there is not a quorum moving forward.

“Under the Senate rules, you need a majority of senators to function. If a majority of senators don’t show up, the Senate can’t do any business,” Collins explained.

Collins said in order for the Senate Judiciary Committee to have a quorum, seven of the 11 senators need to show up for hearings.

“Democrats have a number of those seats,” Collins said. “If Democrats don’t show up, the committee can’t move forward.”

Local reactions

Scott Ryder and Joey Heilman, of Colorado, were visiting Smith College faculty in Northampton Thursday. Ryder said he too is hoping that House Minority Leader Nancy Pelosi and Senate Minority Leader Chuck Schumer “really push back on this.”

“I’m really hopeful that the coming elections get Democrats in the Senate and House to block Trump’s attempts to appoint a conservative justice,” Ryder said. “Rulings like Roe v. Wade are really on the line right now.”

“It feels kind of grim at the moment,” said Patricia Gerry-Karajenes. “With Trump stacking judges in a conservative manner, it’s discouraging and it feels actually frightening.”

She said she and her husband, who live in Buckland, are hoping that Pelosi and Schumer will hold out for a more moderate justice to be appointed than whoever is nominated by Trump.

“We’ve been thinking that with this news, maybe there will be enough people worrying about it to get more people out to vote,” John Gerry-Karajenes said.

He said he’s concerned that landmark legislation such as Roe v. Wade will now be in danger of being overturned and said he’s also worried that the court will begin shifting towards more conservative rulings and precedents than previously seen.

“Mueller is the ray of hope in the background,” Patricia Gerry-Karajenes said, referring to special counsel Robert Mueller’s investigation into Russian interference in the 2016 U.S. presidential election. “We didn’t think it could get worse than George W. Bush, but it did with Trump. The bar for political norms has been lowered.”