If Kennedy does announce his retirement, it would almost certainly ensure not only a clear rightward swing in the Court but would also cement a major part of Donald Trump’s legacy barely five months into his first term.
Why was the Court Trump’s biggest crutch with Republican voters both during the campaign and now? Just ask him!
The point was — and is — this: Whether or not conservatives loved or even liked Trump, he would nominate people to the Supreme Court who were considerably more conservative than the people Hillary Clinton would choose. And, the power to nominate justices to the Court mattered more now than ever before because so many of current members were, well, old.
Conservatives have always cared deeply about the federal bench — atop which sits the Supreme Court — but a series of rulings over the Obama years made Trump’s argument even more powerful. The Court’s decision that the individual mandate at the center of the Affordable Care Act was, in fact, constitutional was regarded by many conservatives as a betrayal. The decision to legalize same-sex marriage nationwide was just the sort of legislating from the bench conservatives had long warned about.
If the Court was a major issue for conservatives in the years leading up to 2016, it became the major issue for many of them in the Trump-Clinton race. Sure, Trump said and did things that made them uncomfortable. But what was a little discomfort when compared to decades worth of conservative dominance in the nation’s highest court?
That perception would be almost entirely unaffected by any and all of the other things Trump has done or will do over the next three and a half years in office. All his tasteless tweets, his braggadocio, his inconsistent commitment to conservative principles on spending, debt and trade (among other things) would pale in comparison to the fact that he was the Republican president that handed conservatives a solid 5-4 majority on the Supreme Court.
Trump’s poll numbers suggest he will face a very tough fight for a second term. His lack of legislative accomplishments could cost him control of the House in 2018. But if Kennedy retires and Trump nominates a reliable conservative justice to replace him, Trump’s legacy will be, in no small part, cemented for the very conservatives who held their nose and voted for him.
A Kennedy retirement this week would also make good on Trump’s to-date groundless boast that he has accomplished more in a few months than many presidents do in a few years.