Last week, Senator Dean Heller (R-NV), a potentially vulnerable incumbent in 2018, gave a surprising reason for why he is confident about his re-election prospects: that Supreme Court Justice Anthony Kennedy could announce this summer that he is retiring from the bench. Justice Kennedy has often been considered the swing vote on the Supreme Court, authoring the opinion in favor of gay marriage in Obergefell v. Hodges in 2015, but also ruling in favor of a constitutional right of private gun ownership in DC v. Heller in 2008. He is currently the median justice on the Supreme Court, with Clarence Thomas, Neil Gorsuch, Samuel Alito and John Roberts leaning to his right and Stephen Breyer, Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg to his left.
In the short term, his retirement would likely cause a surge in conservative enthusiasm ahead of the midterms, as President Trump would likely look to appoint a replacement well to Kennedy’s right. The confirmation fight would cast a shadow over the entire midterm elections due to the stakes of confirming one more conservative justice. Should President Trump decide to appoint another solidly conservative justice, as he did with Neil Gorsuch and promised to do in his campaign, Chief Justice John Roberts– who saved Obamacare with his 2012 vote in NFIB v. Sebelius but has a generally conservative record– would likely become the median justice of the Supreme Court.
This would represent a significant step to the right of the overall Supreme Court. For example,Roberts has always ruled in favor of pro-life arguments, very much unlike Kennedy. While I am not certain that he would be open to completely overturning Roe v. Wade and returning abortion to the states, or even open to finding a constitutional right to life, such outcomes would be far more likely with Roberts as the median justice than with Kennedy as such. Apart from abortion, the change would be significant for countless other issues. For instance, if Roberts had been the median justice in 2015, the Supreme Court would not have twisted the meaning of the 14th Amendment to force gay marriage upon the states.
Electorially, I also believe that Senator Heller is correct in saying that a Supreme Court vacancy would help Republicans in the midterms. In 2016, voters who said that Supreme Court nominations were “the most important factor” to their vote broke 56-41 in favor of Donald Trump. The effect would be most prominently seen in the Senate, which has to confirm a nominee. It just so happens that there are ten Democratic incumbents up for re-election in red states from 2016, compared to only one Republican up for re-election in a state carried by Hillary Clinton (the aforementioned Senator Heller of Nevada). So, if conservatives are enthused and turn out, the Senate map alone says that Republicans should have success in that chamber. This Supreme Court vacancy could truly create a Constitution-respecting majority on the highest court, which could provide the motivation necessary to ensure that conservatives show up to the polls.