Here & Now

Does Kennedy's Retirement Kill Redistricting Hopes?

Frederica Freyberg:

All eyes are on the implications of the retirement of U.S. Supreme Court Justice Anthony Kennedy. In Wisconsin, plaintiffs in the legislative redistricting lawsuit had hoped to sway Kennedy in a renewed case before the high court. But with the justice regarded as a sometimes swing vote stepping down this summer, those particular hopes would appear to be dashed. What are other implications of Kennedy’s departure? For that we turn to Ryan Owens, an expert on the Supreme Court and UW-Madison political science professor. Thanks very much for being here.

Ryan Owens:

Sure. Happy to.

Frederica Freyberg:

So the Supreme Court just rejected North Carolina’s partisan gerrymandering claim and Justice Kennedy will be gone by the time Wisconsin’s case would have a chance to go back up. What does all this say about the Gill v. Whitford claim?

Ryan Owens:

I would think at this point partisan gerrymandering as a key topic that the court is going to look at, I think the decks have cleared for that. I just don’t think there’s going to be any appetite on the Supreme Court other than among the four liberal justices to really get involved in this issue. Among the conservatives, Kennedy was the only one who signaled any interest in the matter whatsoever and I can’t imagine that President Trump would name a successor who would share his interest in that topic. I would think in terms of trying to move the ball forward on that issue, it’s just dead in the water.

Frederica Freyberg:

More generally, there’s alternately glee and despondence, depending on your politics over Kennedy’s departure. What will his departure mean now going forward for the course of the court?

Ryan Owens:

I think there’s a number of things that are going to happen now that he has retired. I mean, the most immediate thing is if you assume that President Trump nominates a conservative in the mold of Neil Gorsuch which I think we have every reason to believe he will, it’s going to make Chief Justice Roberts actually the swing vote on the court and that will make him probably the most powerful chief justice in modern history in my mind maybe since Chief Justice Marshall. He’ll be sitting in the middle of the court and will allow the court to move to the right only so far as he wants it to. That’s one of the immediate implications just in terms of the personnel on the court. Now, if you want to talk a little bit about doctrine or topics that might be up for grabs, I think a lot of people have talked about abortion. Others have talked about same-sex marriage. I don’t see either one of those two items being at the top of the list for a more conservative court. I would think that topics like affirmative action might be. There’s a lot of philosophical disagreement on the right with using racial standards in the selection of say college applications or work or things of that nature. Chief Justice Roberts said in a case not too long ago that the way to stop discriminating based on race is to stop discriminating based on race. So I think that’s clearly going to be something that the court will consider.

Frederica Freyberg:

Why don’t you think those other social issues will be under consideration?

Ryan Owens:

I think the same-sex marriage case, I think you saw the court — many of the justices sort of move probably personally on that matter somewhat to the left. I know Chief Justice Roberts did not like the methodology the court used to sustain the right to same-sex marriage. But now that that right is there, I’m not sure that he wants to put the court’s capital on the line and take it away, especially so quickly after it was granted.

Frederica Freyberg:

Any hazard on your part on the long line of possibilities who the president will put forward?

Ryan Owens:

Trump of course put out a short list a while ago but I think there are a few candidates on that list right now who have to be rising to the top. Four of them I think that I have in mind: Amy Coney Barrett out of the 7th Circuit Court of Appeals, and I can come back to them in a second. Raymond Kethledge out of the 6th Circuit. There is– in addition to that we’ve got Brett Kavanaugh from the D.C. Circuit Court of Appeals. And potentially, I’m not sure if I said Ray Kethledge from the 6th. And Amul Thapar who is another circuit court of appeals judge. Now they all come with advantages. Amy Coney Barrett is a conservative female Catholic justice–uh, judge. She could help Trump out with some of those folks. Amul Thapar is– would be the first Indian supreme court justice, very conservative as well. Cavanaugh is a conservative. Kethledge is actually quite conservative and he’s well-known for writing very, very good opinions. So any of those four I think would be good selections. Conservatives would get behind them.

Frederica Freyberg:

We need to leave it there. Ryan Owens, thanks very much.

Ryan Owens:

You bet.