Red velvet drapes hang at the back of the courtroom at the U.S. Supreme Court building in Washington, June 20, 2016. 
Photo by Jonathan Ernst/Reuters

Kennedy’s retirement is about abortion (but that’s not all it’s about)

The Rachel Maddow Show, 6/27/18, 9:43 PM ET

Trump SCOTUS threat to abortion rights prompts wave of organizing

Cecile Richards, former president of Planned Parenthood, talks with Rachel Maddow about how Americans are already organizing to protect abortion and reproductive rights in the face of Donald Trump’s likely replacement for the retiring Justice Kennedy.
Cecile Richards, former president of Planned Parenthood, talks with Rachel Maddow about how Americans are already organizing to protect abortion and reproductive rights in the face of Donald Trump’s likely replacement for the retiring Justice Kennedy.
Soon after Supreme Court Justice Anthony Kennedy announced his retirement, Rachel told MSNBC’s Nicolle Wallace that the retiring jurist is “probably the reason we have abortion rights in this country, and I think within a year, abortion will be illegal in half of the United States.”

That may have struck some people as a bold, almost inflammatory, prediction. It wasn’t. This is simply a matter of being about to count to five.

Clarence Thomas is the only sitting justice who has publicly declared opposition to the ruling, having joined the dissent in the court’s 1992 landmark ruling in Planned Parenthood v. Casey, which upheld much of Roe. That dissent explicitly argued that Roe was “plainly wrong.” […]

But many advocates and some legal scholars nonetheless predicted that the three other conservatives on the court – Chief Justice John Roberts, Samuel Alito and Neil Gorsuch – would likely join the new Trump-appointed justice in rulings that would target abortion rights and chip away at the protections of Roe.

Indeed, the likely scenario is already in sharp focus: Trump will keep his promise to nominate a justice who opposes abortion rights; Senate Republicans will confirm him or her; the Supreme Court will take up an abortion case; and Roe v. Wade will be overturned before the next presidential election.

As Trump himself put it during the third presidential debate in 2016, “[T]hat’ll happen automatically, in my opinion, because I am putting pro-life justices on the court.”

Abortion-rights advocates who stayed home in 2016, or voted for a third-party candidate, took a dangerous gamble. It now appears they placed the wrong bet.

But while this is almost certainly the highest-profile issue at stake right now, it’s not the only issue worth watching.

Politico had a good summary on this point, noting, “Major changes could also be coming in other areas where Kennedy … has been counted as a crucial vote on the court, including affirmative action, gay rights, voting rights and the application of the death penalty to minors and the intellectually disabled.”

On the surface, some Americans may see Kennedy’s retirement as some kind of even swap: a conservative justice, appointed by a Republican president, will be replaced by another conservative justice, appointed by a different Republican president. Kennedy’s successor will probably be roughly half his age, but otherwise, the argument goes, the fundamental balance of the Supreme Court will remain intact.

That’s profoundly wrong. Consider every major 5-4 ruling from recent years in which Kennedy parted ways with his far-right colleagues. Now imagine each of those cases being re-tried with a more doctrinaire conservative tipping the high court’s scales in the opposite direction.