In retrospect, Justice Anthony Kennedy had been telegraphing his imminent departure all session.
The court effectively punted on several big cases, ruling on narrow, technical grounds rather than making sweeping decisions. Partisan gerrymandering went back to the lower courts on a standing issue. The case of the anti-gay baker in Colorado was reversed largely because of hostile comments the state's Civil Rights Commission made about the baker's religious faith, not necessarily because religious people have a blanket right to discriminate against gay people (though the scope of that ruling will be tested for years to come). Even the travel ban was upheld because, on the third try, the court found that the Trump administration had sufficiently watered it down to no longer make it explicitly a Muslim ban, no matter the president's bigoted public statements.
Kennedy, a Reagan appointee who had become the court's swing vote over his 30 years on the bench, especially on hot-button issues like abortion and gay rights, had a chance to stand up for democratic fairness and marginalized populations, but he declined.
There were, as there are every term, judgments that will reverberate for decades – and in this term, not in a good way: the Janus ruling, which will eviscerate public sector unions (already the last stronghold of organized labor), and a decision allowing Ohio to purge its voter rolls of people who don't vote often enough, which was decried by civil rights and voting rights advocates, both 5-4 splits.
But the most consequential decision of all, of course, was Kennedy's retirement, announced soon after the court adjourned for the summer. By the time you read this, Donald Trump will likely have announced his choice for Kennedy's replacement, his second pick to the court in as many years (which is as many as President Obama got over eight years). And while Trump's administration is a torrent of scandal wrapped in mendacity ensconced in a dumpster fire of ineptitude that could be brought to a merciful end two and a half years from now, his reconfigured Supreme Court – engineered by the Federalist Society to placate his right-wing base – will hold sway over all facets of American life for a generation.
Recognize this for what it is: the conservative endgame. There's a lot of Trump's bullshit that the more politically sophisticated members of the religious and free-market right are willing to put up with in exchange for what they deem to be solid Supreme Court picks. Sure, the rubes at the MAGA rallies may actually care about building the wall or locking her up or starting a trade war or throwing babies in kiddie concentration camps or whatever, but for the elites who know better – and who are actively exploiting the rubes for their own purposes – this is it.
So: Give Trump two (or, better yet, three, should a liberal justice's health fail) court picks and then, fine, let Robert Mueller do his thing. They'll have gotten what they wanted out of the Faustian bargain. There's a reason Mitch McConnell obliterated Senate norms to deprive Obama of even a hearing on a Supreme Court pick, holding the seat open a full year to allow a Republican successor to have it. In their eyes, the ends justify the means.
In short, this is the only thing holding the elite level of pro-Trump conservatism together. (For the rabble, it's authoritarianism mixed with a penetrating fear of diminishing white, Christian, patriarchal privilege, according to multiple studies.) And that's why you have the Koch brothers, who despise Trump especially on issues like tariffs and immigration, gearing up to spend millions on behalf of his Supreme Court nominee.
It's not just the obvious issues like abortion and gay marriage. Of course, those things will be under immediate threat should Trump successfully replace Kennedy with another ideologue like Neil Gorsuch.
Is the gay marriage ruling imperiled? Perhaps, although public opinion has sufficiently shifted as to offer it some protection. However, expect conservative states to try to chip away at it, allowing more and more leeway for people to discriminate against LGBTQ people under the guise of religious freedom.
How about Roe v. Wade? That's more likely to vanish, even though it has 2-1 support, according to Quinnipiac. The intensity of conservative activists' feelings will almost certainly force Trump to appoint an activist justice who will, at the very least, permit severe restrictions on the right to choose. Considering that more than two dozen states have so-called snapback provisions – meaning that, if Roe goes, they'll either automatically ban abortion or put in place restrictions that effectively do so – the reproductive-rights landscape could look a lot different a few years from now.
But just as important are the things flying somewhat below the radar: Trump's assertion that, if push comes to shove, he could pardon himself, sparking a constitutional crisis; Fourth Amendment rights as the surveillance state becomes more sophisticated, as evidenced most recently by Amazon's facial-recognition experimentation in Orlando; criminal justice, drug and sentencing reform, as well as the country's treatment of refugees; the ongoing diminution of workers' rights as the oligarchy and business interests gobble up wealth; the regulation of the internet; the future of health care policy, including, should Democrats retake power, the possibility of single-payer.
And then there are all the issues we can't even conceive of right now that will emerge 10 or 20 years from now – by which point Donald Trump will be but a stain on America's reputation, but his court will be controlling the balance of power and setting strict limits on what the younger, more progressive rising generation can achieve.
That's what's at stake.
Democrats' efforts to hold McConnell to his own election-year standards will fail, because McConnell has no shame and he wants to win. For the same reason, the argument that Trump shouldn't get to appoint a court that might rule on an investigation into him will fail.
The only hope of preventing a regressive future is to fight hard and to fight now, to bombard supposedly moderate Republicans like Susan Collins and Lisa Murkowski and wishy-washy Democrats like Joe Manchin with phone calls and emails, not to mention all-talk-no-action cowards like Jeff Flake and Marco Rubio, demanding that they not roll over for whatever half-baked Bircher the administration coughs up, telling them that it takes one or two Republicans to force Trump to nominate someone like Kennedy – not a liberal, but someone who will preserve the last shreds of the court's dignity and not let it devolve into a pawn of the Trump White House.
The far right knows the stakes of this game, and they've been playing it for a long time. The question is whether progressives can rise to the challenge.
