Justice Anthony Kennedy’s retirement, leading to President Donald Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court, has thrown progressives, the Democratic Party, and the news media into an out-and-out tizzy.
The online magazine Slate declared, “Anthony Kennedy Just Destroyed His Legacy as a Gay Rights Hero.” The New York Times’ editorial board said about a second Trump court appointment, “It is a dark moment in the history of the court and the nation, and it’s about to get a lot darker.”
It’s indeed a “dark moment” for those who’ve for decades used the courts to accomplish what would have been impossible through federal and state legislatures—such as same-sex marriage, abortion, and preferences with regard to race and sex. With this Supreme Court pick, and possibly another during his term, Trump can return us to the Framers’ vision of the judiciary—a vision that’s held in contempt by many liberals and conservatives.
The Constitution represents our “rules of the game.” Supreme Court justices should be seen as umpires or referees, whose job is to enforce neutral rules.
I’ll give a somewhat trivial example of neutral rules from my youth. Let’s call it Mom’s Rule.
On occasion, my sister and I would have lunch in my mother’s absence. She’d ask either me or my younger sister to divide a last piece of cake or pie. More often than not, an argument would ensue about the fairness of the cut.
Those arguments ended when Mom came up with a rule: Whoever cuts the cake lets the other take the first piece. As if by magic or divine intervention, fairness emerged, and arguments ended. No matter who did the cutting, there was an even division.
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