The Supreme Court was never supposed to be a political body – but now it is, for years to come.

The founding fathers were ingenious. More than anything, they dreaded a man on horseback, like the English king, who might seize absolute power. So they created a Constitution that has served us well for over 220 years. The founders devised a delicate system of checks and balances so that the majority, which would rule, could not tyrannize the minority. The 16th-century Scottish scholar George Buchanan observed that we must rely on the institutions of a free society to push back against those who would govern “not for their country but for themselves, who take account not of the public interest but of their own pleasure.” With the probable addition of Judge Brett Kavanaugh to replace the retiring Justice Anthony Kennedy, the Supreme Court will not be one of these institutions.

Because of a historical accident, there has now been a grave unintended consequence of the exquisite framework the founding fathers devised. A reactionary president, elected by a minority of the people, who has no meaningful pushback from the Senate, which his party controls by one vote, is able to chart the course for the Supreme Court for generations to come.

This is plainly not what the founding fathers intended.

In the past, the Court has been political, and it has been polarized, but there have been notable exceptions. The Burger Court unanimously decided United States v. Nixon, and established the proposition that no one, including the president, is above the law. Three Republican-appointed justices voted with four liberal justices in Roe v. Wade to establish a woman’s right to abortion. Roe v. Wade has now been “consecrated by time and custom,” yet Kavanaugh is unlikely to overrule such a “super precedent.”

But the recent raft of 5-4 decisions of the Roberts Court (with Kennedy voting with the majority) makes clear beyond doubt that a reactionary, uncompromising political Court is here to stay. With Kavanaugh on the bench, we are virtually ensured that there will be a reactionary Court for generations.

Kennedy was conservative on many issues, including business regulation and campaign finance, and on those issues, his departure will have little immediate effect on the 5-4 conservative-to-liberal balance. But Kennedy, for whom Kavanaugh served as law clerk, was the swing vote on other matters, including abortion, gay rights and affirmative action. Kennedy voted with the liberals on a host of issues, including capital punishment, digital privacy rights, partisan gerrymandering and allowing the EPA to fight climate change.

If Kavanaugh votes with his Republican-appointed colleagues on the key partisan issues, the Supreme Court – the only branch of government that is conceived as independent of the political process – will be unwilling or unable to push back against the executive state for decades to come. And this is an outcome that the founding fathers never intended.

JAMES D. ZIRIN is a lawyer and the author of Supremely Partisan – How Raw Politics Tips the Scales in the United States Supreme Court.