Replacing Justice Anthony M. Kennedy will trigger a titanic confirmation fight, one that may eclipse the ugly conflicts over Robert Bork and Clarence Thomas. Conservatives will press President Donald Trump to honor his promise to nominate judges wedded to the Framers’ Constitution. Liberals will regard the nomination as yet another battlefield to wage unremitting “resistance,” with abortion rights and affirmative action in the balance. Even as the two sides wage war over the future of Roe v. Wade, they may yet find an area of agreement: an end to an era of judicial supremacy in interpreting the Constitution and a return to greater judicial respect for the views of the elected branches of government.
Justice Kennedy’s legacy may identify common ground. Though appointed by President Ronald Reagan, Kennedy followed no predicable conservative path. He supplied the critical votes for a woman’s right to abortion, for gays to marry, and affirmative action in universities. He led the Court’s efforts to curb the death penalty, safeguard state sovereignty against federal power, and supervise the executive branch’s detention and trial of war prisoners. These cases reflected a broader theme: a soaring confidence in the ability of judges to settle the most controversial social questions. As he put it in an unusual joint opinion in Casey v. Planned Parenthood (1992), when the Court decides a constitutional question, it thereby “calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”
Whatever the Court might say, the Constitution, not the Court’s pronouncements, is the supreme law. The Justices enjoy no unique relationship to the founding document.
This was rather presumptuous. Despite Justice Robert Jackson’s claim that the Court was “infallible only because we are final,” the Constitution makes the justices neither. No branch can claim a special authority over constitutional meaning, a fundamental principle that can chart the path forward for the appointment of Kennedy’s successor.
Whatever the Court might say, the Constitution, not the Court’s pronouncements, is the supreme law. The Justices enjoy no unique relationship to the founding document. As an independent branch of government, the president has the duty to “Take Care that the Laws are Faithfully Executed,” with the Constitution as the highest form of that law. He therefore must implement his understanding of the Constitution and, accordingly, nominate judges who will advance his constitutional agenda.
Likewise, the Senate has its own responsibility to interpret the Constitution when it carries out its functions. They should not vote for bills that violate the Constitution. Likewise, they should vote against nominees whose understanding of the Constitution differs from their own. If the president and some senators hold widely different views of the Constitution, as they do today, they will come into inevitable conflict, with the hearing room of the Senate Judiciary Committee providing the battlefield.
As we listen to the rhetoric over Kennedy’s replacement — such as that this nomination to the Court will be the “most important ever” — ignore claims that the president and the Senate should seek political consensus and that nominees should fall within an illusory “mainstream.” Pay no heed to those who insist that the Senate must consent to anyone “well-qualified.” The Founders intentionally created an appointment process that generates conflict. In Federalist No. 76, Alexander Hamilton explained that the Constitution vested the nomination in the president because “the sole and undivided responsibility of one man, will naturally beget a livelier sense of duty, and a more exact regard to reputation.” Because the Constitution made the president alone responsible, he would have the incentive to thoroughly vet the nominee.
But the Senate enjoys the right to reject any nominee, and it owes no deference to the president’s choice. “[The Senate] would be an excellent check upon a spirit of favouritism in the president,” Hamilton observed, “and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to popularity.”
We should expect the president to keep his promise to nominate anti-Roe judges, just as we should anticipate that pro-choice Senators will vote against them. Both parties are only fulfilling their roles in the constitutional design.
Trump could choose a nominee not because she opposes abortion or gay marriage, but because she believes that the Constitution leaves these questions to the states and the national political process.
While the confirmation process encourages conflict, the Supreme Court itself bears some blame for making confirmation fights even more contentious. The Court’s expanding control over more social issues, such as race, religion, and sexuality, has only amplified the political polarization and importance of Supreme Court nominations. Any nominee should pledge to advance a jurisprudence that restores the other branches to their rightful roles in constitutional interpretation. The courts should embrace a more diverse approach to constitutional interpretation, one that looks to many actors, institutions, and sources for meaning. Conservatives should favor such a nominee because of their disdain for “jurocrats” who would supplant the political process. Liberals who fear a Trump judiciary should favor an appointee who does not suppose that the Court is the font of all wisdom.
President Trump and the Senate can begin the march away from judicial supremacy with Justice Kennedy’s replacement. Trump could choose a nominee not because she opposes abortion or gay marriage, but because she believes that the Constitution leaves these questions to the states and the national political process. The Senate might confirm a justice who seeks to limit the administrative state not because he thinks judges should oversee the agencies, but because the agencies cannot intrude into the judiciary’s responsibility to enforce the laws as written.
We do not denigrate Justice Kennedy’s exemplary service or uncommon decency. But what the nation needs now is a jurist who rejects his embrace of judicial supremacy and returns to the modesty that governed the Supreme Court for much of its history. Even as the political parties come to blows over discrete issues such as abortion or race, this more important principle may yet emerge from the appointment fight over his successor.
John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. Saikrishna Prakash is the James Monroe Distinguished Professor of Law and Horace W. Goldsmith Research Professor at the University of Virginia School of Law and a fellow at the University of Virginia’s Miller Center.