Jonathan Chait writes:

Democrats have won the national vote in six of the last seven presidential elections, which, with the retirement of Anthony Kennedy, will have resulted in the appointment of eight of the Supreme Court’s nine justices. And yet four of those justices will have been appointed by presidents who took office despite having fewer votes than their opponent. Republicans will have increasingly solid control of the court’s majority, with the chance to replace the sometimes-wavering Kennedy with a never-wavering conservative movement stalwart.

Over the last generation, the Republican Party has moved rapidly rightward, while the center of public opinion has not. It is almost impossible to find a substantive basis in public opinion for Republican government. On health care, taxes, immigration, guns, the GOP has left America behind in its race to the far right. But the Supreme Court underscores its ability to counteract the undertow of its deepening, unpopular extremism by marshaling countermajoritiarian power. [Continue reading…]

Jack Goldsmith writes:

Justice Anthony M. Kennedy’s retirement from the Supreme Court after more than 30 years of service is the most consequential event in American jurisprudence at least since Bush v. Gore in 2000 and probably since Roe v. Wade in 1973. For three decades, he has been a guiding force on the court’s most consequential decisions, conservative and liberal. His departure leaves the future of U.S. constitutional law entirely up for grabs.

Kennedy made it to the highest court in the land after Ronald Reagan’s failed selections first of Robert Bork and then Douglas Ginsburg. When the Reagan administration looked for a safer choice, it turned to the soft-spoken, bookish Californian who ran his father’s law practice and taught constitutional law before becoming a respected appellate judge on the U.S. Court of Appeals for the 9th Circuit. The Senate confirmed Kennedy 97 to 0 on Feb. 3, 1988.

Kennedy dominated the direction of the court in its most important decisions from the beginning, and especially in recent years. One proxy for an ideologically contested case is when the court splits 5 to 4. In his 31 terms on the Court, Kennedy led or tied for the most 5-to-4 cases in the majority a remarkable 20 times, including every term but one since swing justice Sandra Day O’Connor retired in 2006. His vote was extraordinarily consequential. [Continue reading…]