It’s been a few days now, but the shock of Anthony Kennedy’s retirement announcement hasn’t abated a bit. This is partly because of the ghastly coming ramifications, more on which later. But it’s also because I honestly didn’t think Kennedy would allow Donald Trump to name his successor.
I thought he had more respect for the United States of America than to allow this corrupt gangster who’s almost certainly never read a Supreme Court opinion in his life to name his successor. Yes, Kennedy is conservative, so to that extent it makes sense that he’d want a Republican president to make the call, and maybe it’s just that simple. But whatever his motivation, Kennedy has altered and destroyed his legacy.
Let me put it this way. If I owned a restaurant and he walked in, I’d serve him dinner. But if the other diners mocked and shamed him, I wouldn’t exactly cry.
Until last week, Kennedy’s legacy was going to be that of a basically conservative but sometimes interesting jurist. He was awful on money in politics. Awful.
If you never read Jeffrey Toobin’s important New Yorker piece from 2012, a tick-tock on the inside baseball of how the Court decided Citizens United, do so. Toobin shows that it was Kennedy who pushed behind the scenes to move the opinion as far to the right as a majority would accept. When this new Court has struck down any and all limits on campaign donations, as it almost surely will, and this country becomes an open oligarchy, we’ll have Kennedy to thank.
And yet, he helped advance human and civil rights in this country by voting to legalize same-sex marriage. Obergefell v. Hodges was a landmark case that was going to live in history alongside Brown v. Board of Education—a triumphant moment when we as a nation rose above past prejudices, prejudices that will look ridiculous and embarrassing a hundred years from now.
Notice I wrote was going to. Because now, assuming Trump and the Republicans get their justice, it’s only a matter of time before Obergefell is overturned. Look at this map. Most of the countries of the Western Hemisphere have federal laws legalizing same-sex marriage. Canada, Mexico, Argentina, Brazil, Colombia. Someday, the United States will no longer be among them.
Kennedy was also a swing vote, of course, on abortion rights, siding with the liberals and keeping Roe v. Wade law of the land. On Sunday, Maine GOP Senator Susan Collins said seemingly pretty definitively that she’d oppose a nominee who’d overturn Roe.
But all that probably means is that the nominee will lie about it at his or her hearing. Every conservative since Antonin Scalia has sat up there and dispensed obviously insincere tripe about respect for precedent, a history Paul Waldman recounted recently in The Washington Post.
So Collins, reassured by the nominee that s/he will keep an open mind and respects precedent, will cave as she always does.
So this is what Kennedy has done. He has knowingly destroyed that part of his legacy—which was, in fact, his entire legacy, because these were the only interesting and brave things he ever did. And now these precedents will be overturned. Now, Kennedy’s legacy is the destruction of Kennedy's legacy.
But that’s not even the worst part. The worst part is that by retiring in the middle of the Robert Mueller investigation, Kennedy is letting Trump pick one of his own jurors. He obviously had to know he was doing this. And what are we do if the Supreme Court holds sometime in the near future by 5-4, with Kennedy’s successor in the majority, that the president is indeed above the law?
It could be that Kennedy would have been part of such a majority anyway. But if Trump’s two justices are part of that five, it will taint the Court forever, and it will tarnish what remains of our democracy, as the highest court in the land will have ruled that the crookedest president in modern history cannot be called to any kind of legal account.
Kennedy had to have contemplated all this as he pondered his resignation. But he made a decision that renders him not an independent jurist who takes seriously the constitutional responsibility of the judicial branch to check the executive, but just another partisan hack.
And now we learn that on top of everything else, Kennedy may just be corrupt. So his son Justin, if last week’s New York Times account is correct, in essence kept Donald Trump in business for the better part of a decade, overseeing $1 billion worth of loans to the Trump Organization via Deutsche Bank, where he worked. Justin and the Trump kids are buddies, it seems. Justin and Trump himself are palsy-walsy.
This is grotesque. There was once a time in this country, 40 and 50 years ago, when a connection like this might have led an honorable associate justice to recuse himself from every case involving the administration that came before him. Or if not that, at the very least a justice would have cared enough about appearances that he would have tried to stay on until 2021 to see if the country elected a new president, someone who wasn’t arguably saved from bankruptcy and humiliation by his own flesh and blood.
But not only did Kennedy not do that—he chose not to risk the possibility of the Democrats winning the Senate this fall and pulling a Mitch and doing to his successor what McConnell did to Merrick Garland. A jurist who cared more about his legacy would have waited--indeed would have hoped that the Democrats took the Senate, perhaps forcing President Trump to put forward a nominee who was more moderate and who would follow Kennedy's own example on abortion rights and gay rights. But no.
In other words: Anthony Kennedy went out of his way to make sure that a president who was elected with fewer votes than his opponent, and whom time might reveal to have won the White House by cooperating with a foreign adversary, and whose business career was salvaged by none other than Kennedy’s own son, gets to name his replacement—a replacement who is all but certain to undo the only good Kennedy himself ever did.
What kind of person do you have to be to justify all that to yourself? To abet the dissolution of your own legacy? It’s like a kulak handing a Bolshevik a pistol. Except that the real price here will be paid not by Kennedy, but by the millions of Americans who will lose hard-won rights.
May the name Anthony Kennedy live forever in infamy.