Time and again over the past three decades, civil rights campaigns in favor of reproductive choice, LGBTQ equality and affirmative action have crested with thin US supreme court rulings protecting marginalized groups.
That might be about to change. The retirement announcement last month of 81-year-old justice Anthony Kennedy means that the court’s most reliable swing vote – the deciding vote in a number of crucial cases – might stop swinging, legal analysts say, leaving the court’s four liberal-leaning justices to be routinely dominated by a newly strengthened conservative bloc.
Dominated, that is, unless a new swing vote materializes who might occasionally deliver 5-4 victories that American progressives can cheer the way they have cheered landmark rulings clinched by Kennedy on issues such as same-sex marriage and abortion rights.
There is exactly one potential candidate to fill the swing-vote role Kennedy is now vacating, analysts agree. Barring some truly dramatic twist in the intellectual wiring or confirmation prospects of circuit court judge Brett Kavanaugh, Donald Trump’s nominee-in-waiting, that candidate is the sitting chief justice, John Roberts.
Roberts’ claim to the role owes mainly to a pair of relatively recent 5-4 rulings in which the chief justice sided with the court’s liberal-leaning wing to uphold Barack Obama’s health care law. The decisions won Roberts much calumny from conservatives, some of whom cried betrayal.