The retirement of Anthony Kennedy upstaged the latest round of Supreme Court decisions that took yet another blast at civil liberties, the rights of labor and the democratic form of government. No one who has followed the court could have been surprised by any of these actions. The Roberts court has never been a fan of minorities, workers or democracy.
In Trump v. Hawaii, with regard to the president’s infamous ban on Muslims traveling to the United States, the court upheld the president’s right to discriminate against members of a religious group as long as the discrimination is not explicit. In its longstanding assault on the right to organize the workforce, in Janus v. AFSCME the court struck down the right of public service unions to collect fees for collective bargaining from non-union members. Membership in public service unions will likely be reduced by one-third within two years. No one can argue with those kinds of results.
Both decisions stand with Bush v. Gore and Citizens United as among the most damaging in modern history and Justice Anthony Kennedy played his usual role of casting the deciding vote. Now that distinction will go to the next Donald J. Trump appointee – an appointee that has already been approved by the Federalist Society.
As for their continuing assault on American democracy, in the Texas gerrymandering case Abbott v. Perez, Justice Sonia Sotomayor said it best: “after years of litigation and undeniable proof of intentional discrimination, minority voters in Texas—despite constituting a majority of the population within the State—will continue to be underrepresented in the political process. Those voters must return to the polls in 2018 and 2020 with the knowledge that their ability to exercise meaningfully their right to vote has been burdened by the manipulation of district lines specifically designed to target their communities and minimize their political will.”
In other words, blatant and targeted disenfranchisement of minority voters is certifiably legal as long as you wink at the court when you walk in the door. These justices of the perpetual majority will find any reason and any rationalization to allow the good old boys with whom they are politically aligned to keep on doing what they have been doing since the days of old Jim Crow. It’s not that they created districts designed to disenfranchise blacks and Latinos; it’s just that the democratic voters around these parts tend to be of darker complexion. Wink.
No one suggests that Kennedy or Roberts or Alito or Gorsuch or Thomas are racists; they just happen to read the law like racists have since the writing of the constitution. Minorities may finally have the vote but by god they won’t get to use it until the Great White Fathers of Washington are damned good and ready. They’re not ready yet and – thanks to the next appointees to the court by Donald J. Trump – they won’t need to be ready for decades.
Racist is what racist does.
Having served for over three decades, Anthony Kennedy has been the pivotal vote on the court since the retirement of Sandra Day O’Connor. He has earned the ire of rightwing ideologues by favoring gay rights, a woman’s right to abortion and the right of government to regulate firearms. He recently compromised on an affirmative action case further alienating the hard right.
But make no mistake, Kennedy was no darling of the left and his parting shot will be felt for a very long time. Kennedy has long been a member of the corporate justice clan. Along with Scalia, Thomas, Roberts and Alito he has always voted against workers and for the most powerful members of the American political and economic elite.
In short, Kennedy was a conservative judge with libertarian leanings who fit snugly into the American system of economically motivated justice. Only on a court that scorns civil liberties and disdains democracy could someone like Kennedy be hailed as the last bastion of justice before the fascist court takes over.
That might seem harsh but I’ll stand by it. The Federalist Society has finally taken full control of the highest court in the land. You’ve got to give it to them. They’ve worked hard toward this end. They have trained multitudes of prospective lawyers to their way of legal thinking. They have financed and promoted their own kind. And they have placed barriers in the way of any would-be judge who did not adhere to their philosophy.
Never mind what the founders actually believed, what they enshrined was the Bill of Rights and the Constitution. They did not vote for or enact into law the Federalist Papers. They debated Federalism. They did not select which papers ought to be enshrined.
We were left with a flawed document containing a set of principles and provisions for adapting the constitution to a changing world. Fundamentally, the Federalist Society is all about closing off the door to adaptation. The framers did not specify that an individual’s right to bear arms was contingent on his membership in a well-regulated militia so that context no longer applies. It’s as if the militia clause is there for window dressing.
The framers naturally did not contemplate a woman’s right to control her own reproductive system so it remains beyond the scope of constitutional law. The framers did not envision a society where all men and women of varied color or sexual identity would live under equal protection of the law so there can be no protection absent specific legislation – preferably at the state level. A state’s right to discriminate must be preserved.
Of course, the framers didn’t envision a day when Supreme Court justices would rule that an economic structure would claim all the rights of citizenship. They could not possibly have expected a bank or an international corporation to claim the right to sponsor politicians at all levels of government. The framers didn’t envision a lot of things.
Now we’re up against the wall. The truth is we’ve been there for a long time but it’s about to get much worse. Now it’s not only corporate aristocracy, autocracy and fascism. Now it’s all of these combined with religious intolerance and a whole new level of moral regression. Bakers in Colorado are able to discriminate freely against gays or browns or blacks or longhairs and whoever else they feel superior to today. Thirty-eight states will make abortion inaccessible to everyone but the privileged class the moment Roe v. Wade falls – if that’s even necessary. Maybe the court will take another shot at criminalizing marijuana. After all, there aren’t enough people to fill our profit-turning prisons. Maybe we’ll fill them with the children of migrants seeking asylum.
It’s a brave new world.
So let’s tip a glass to Kennedy and thank him for holding back the wave these many years. I suppose asking for another year from an octogenarian is just too much to ask.
Instead, we’ll have to ask Senators Lisa Murkowski of Alaska and Susan Collins of Maine to stand up and be counted – not only for a woman’s right to choose but for gays and minorities as well. We don’t have a whole lot of hope left but what we do have now resides with you.