These occasions don’t come round all that often, so we should pause for moment amid the daily traumas of Trumptime to celebrate the departure of Anthony Kennedy from the Supreme Court. With Kennedy’s exit, the high bench will finally be cleansed of the last remnant of Reaganism, a judicial contagion that has gnawed away at the legal foundations of the Republic for the past 37 years, since Reagan appointed Sandra Day O’Connor to replace Potter Stewart in the summer of 1981. Over eight years, Reagan remade the federal judiciary from top to bottom by appointing 383 judges, more than any other president.
O’Connor’s elevation to the bench was followed by Reagan’s decision to enthrone the austere William Rehnquist as Chief Justice in 1986, followed four days later by the nomination of fire-breathing Anton Scalia to the slot vacated by Warren Burger.
When center-right justice Lewis Powell, author of the notorious Powell Memoranda that charted a corporate counter-attack against the regulatory state, stepped down in the summer of 1987, Reagan nominated Robert Bork, the bearded conservative who served as Nixon’s executionor in the Saturday Night Massacre. But Bork’s nomination was, well, Borked, by an uppity senate which was, after six years, finally beginning to push back against Reagan with Teddy Kennedy leading the charge. Next Reagan turned to the wonkish Douglas Ginsburg. a former Harvard Law professor whom Reagan had just a few months earlier appointed to the federal court in the District of Columbia. Ginsburg was outed by NPR’s legal bloodhound Nina Totenberg for having smoked marijuana as a student and continuing to partake of the magic herb while teaching at Harvard. During the peak of Nancy Reagan’s “Just Say No” campaign, this admission was a fatal transgression for any judicial aspirant, though a few years later Clarence Thomas would ascend to the bench after having made a similar confession.
After suffering these rare setbacks, Reagan turned to one of his old legal hatchetmen from his days as governor of California, Anthony Kennedy. After the brutalizing of Bork for the uncloaked rapacity of his legal views, Kennedy kept his judicial philosophy pretty opaque during his confirmation hearings, which he sailed through after Al Gore, Joe Biden and Paul Simon all skipped the committee vote to pursue their reelection campaigns. Kennedy was branded a moderate, but soon proved to be as reactionary as Reagan. While Kennedy didn’t exhibit Bork’s zealotry or Ginsberg’s lofty–if at times flighty– intellect, he wasted little time in boring into the landmark rulings of the Warren Court, so reviled the new conservatives. Kennedy’s animus toward Warren was at least partly rooted in the contentious relationship between the former Chief Justice and Kennedy’s lawyer father, who had tangled with Warren during the justice’s term as governor of California.
Kennedy quickly proved himself to be one the court’s craftiest politicians, exploiting his position as a “swing vote” to curry favors from other justices, particularly Rehnquist who often rewarded Kennedy’s loyalty to the “cause” by assigning him the opportunity to draft majority opinions in high profile cases. Kennedy’s alleged “centrism” was really a marker for how far right the court had lurched by the 1990s. Kennedy’s cool temperament masked a vicious legal philosophy, as demonstrated in a 2008 study by Richard Posner and William Landed that ranked Anthony Kennedy as the 10th most conservative Supreme Court justice in the last 100 years.
There’s not much evidence that Kennedy got softer with age. In his last months on the bench, Kennedy shed his cloak of reasoned rectitude to reveal the judicial monster that has always lurked within. He voted to purge voter rolls and maintain grossly inequitable lines in gerrymandered congressional districts. He teamed up with the Roberts/Alito bloc to gut public-sector unions, backed mandatory arbitration provisions and gave his imprimatur to Trump’s vile Muslim travel ban, which will surely rank with Dred Scott, Plessy, Korematsu and Citizens United (which Kennedy drafted) as one of the cruelest and most cynical decisions in the Court’s history. Kennedy could have positioned himself a check on the unbridled power of an authoritarian executive. But at the most fraught constitutional moment of his long career on the federal bench Kennedy chose to play the role of enabler. It’s fair to say that Anthony Kennedy went out smelling of sulphur.
Liberals make far too much of the court. Across more than two centuries, the Supreme Court has functioned as the country’s most reactionary institution, the most resistant to social change, the final guardian of property, power and commerce against the aspirations for individual liberty, civil rights, war powers and environmental protection. Nearly all of the court’s most exalted rulings, from Brown to Roe, have been forced down its throat by years, often decades, of fierce political organizing.
The Democrats’ response to the looming battle to fill Kennedy’s vacancy has been typically limp and uninspired. With kids being stripped from their parents and locked in cages, Roe v. Wade, same sex marriage, affirmative action and the death penalty for children in the balance, the Democrats want to pick a fight over…. the “McConnell Rule.” Smart, really smart. Apparently it is asking too much for the Democrats to fight the Trump nominee on his/her rancid judicial philosophy, rather than the timing of the vote.
Recall that three Democrats voted to confirm Neil Gorsuch: Heitkamp, Manchin and Donnelly. They paid no price for doing so, thus they’ll almost certainly do it again for whatever legal berserker Trump picks to replace Kennedy. And Alabama’s Doug Jones will likely make it four. With an opposition party this insipid, in two years Ireland will have more progressive laws on gay rights and women’s right than will exist in the US.
You have to wonder about Kennedy’s mindset this past term. At a fairly hardy 81, Kennedy could have served another five years on the court. The job isn’t that demanding. There’s lots of time off and there are slavish clerks eager to research and write all of your opinions. You don’t even have to ask questions at oral arguments (see Clarence Thomas.)
Why did Kennedy choose this moment to retire, knowing that his replacement will almost certainly enable the Roberts court to obliterate some of Kennedy’s most humane opinions on gay rights, affirmative action, and the death penalty. So why the sudden mic drop, unless Kennedy wants his enduring legacy as a justice to be his decisive opinion in Citizens United, a kind of Plessy v. Ferguson for the political system, a ruling that fatally tightened the grip of corporate America over the enfeebled democratic institutions of the government.
(An interesting aside. Trump allies aggressively lobbied Kennedy for the last few months to retire this summer so Trump could roll out a new nominee before the midterms. Kennedy listened and apparently bought their assurances that a Trump court would preserve his key rulings. Perhaps he was sold because of a little known connection between the Trump and Kennedy families. For 12 years Trump’s private banker at the troubled Deutsche Bank was Justin Kennedy, son of Anthony. Under the younger Kennedy’s supervision, Deutsche Bank loaned Trump more than $1 billion, at a time when American banks wouldn’t touch his already debt-soaked company. )
Ruth Bader Ginsburg is 85. Stephen Breyer is a frail 80. Clarence Thomas has spoken of retiring, so he can spend more time touring the country in his RV. Donald Trump could conceivably get five Supreme Court picks in his first term, all of them coming from his toxic list of 25 candidates with the Federalist Society’s seal of approval. For perhaps the next 25 years, the Supreme Court will be an entity to be defied not pleaded with. It will have become the Court of Lost Resort.
So perhaps we should thank Kennedy for leaving. His exit should shatter any remaining illusions that the Supreme Court will intervene to save the nation in deus ex machina fashion from a tyrannical president. The salvation of the rights of the people are now solely in the hands of the people themselves.
Justice won’t be found in the courts. It will be won in the streets.
What I’m reading this week…
Infamy: the Shocking Story of the Japanese-American Internment During World War II by Richard Reeves
The Darkening Age: the Christian Destruction of the Classical World by Catherine Nixey
Why Baseball Matters by Susan Jacoby
Still recreating my vinyl collection. Here are last week’s acquisitions…
101. Paranoid by Black Sabbath
102. Idle Moments by Grant Green
103. Second Helping by Lynyrd Skynyrd
104. The Return of Wayne Douglas by Doug Sahm
105. Songs of Leonard Cohen by Leonard Cohen
The Fascism of Tomorrow
Umberto Eco: “Ur-Fascism derives from individual or social frustration. That is why one of the most typical features of the historical fascism was the appeal to a frustrated middle class, a class suffering from an economic crisis or feelings of political humiliation, and frightened by the pressure of lower social groups. In our time, when the old “proletarians” are becoming petty bourgeois (and the lumpen are largely excluded from the political scene), the fascism of tomorrow will find its audience in this new majority..”