In the span of 30 years on the United States Supreme Court, Justice Anthony Kennedy changed the face of America and, in doing so, created Donald Trump and deepened our political divisions. While Justice Kennedy is receiving great accolades for many important court decisions that he authored, his legacy should be judged by his activism more than by any wisdom he provided.
Even after authoring Lawrence and Obergefell, perhaps Justice Kennedy’s greatest effrontery was his 1992 opinion in Planned Parenthood v. Casey, upholding Roe v. Wade, wherein he wrote, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Actually, at the heart of liberty is order and a broad American consensus about the meaning of human life. If he did nothing else, this concept alone makes Justice Kennedy perhaps the greatest enemy of freedom on the Court since Chief Justice Roger Taney’s Dred Scott decision.
Nevertheless, due to other rulings such as Gore v. Bush, Citizens United and the recent Muslim ban and Janus cases, Justice Kennedy is thought by many to be a moderating force on the Court. All I see is that his lack of true jurisprudence is bipartisan – he has been wrong across a broad political spectrum.
Of course, Justice Kennedy is allowed to retire. How America responds to his retirement is not his problem even if many of his decisions have exacerbated deep political divisions. Progressives are shocked and horrified that Donald Trump controls the next pick and conservatives are giddy at the prospect. But, politics aside, there are some realities we ought to face in light of Justice Kennedy’s retirement.
First, we need to look back to the lessons from the Gorsuch confirmation as we look ahead to the impending fight over the next nominee and, “Assume that anyone who claims to be acting out of a pristine sense of civic principle is being dishonest… the only rule that governs the confirmation process is the law of the jungle: There are no rules [and] there is no point in pretending otherwise… Today, there is no principle and no norm in the judicial nominations process that either side would not violate itself and simultaneously demand the other side observe as a matter of decency…”
Nothing about the coming Senate confirmation process will be logical, prudent or constructive. It will be a bloodbath not seen since the Robert Bork confirmation hearings. Senator Ted Kennedy’s “Robert Bork’s America” speech will be child’s play compared to what is to come.
Second, there is no such thing as “settled law” any more. Progressives griping about how a conservative court could overturn Roe or Obergefell ought to reflect back on when progressive courts overturned the abortion laws of all fifty states and the 1971 Baker decision on marriage. Every idea, every imagined right, every long-held American tradition, every custom and every liberty is up for grabs – precisely because progressives set the precedent for controversial change. Progressive court decisions, especially regarding abortion and gay rights, not only overturned court precedent, they overturned American majority opinion and the decisions of state legislatures. For progressives to now argue that their opinions are “settled law” is disingenuous and factually incorrect.
Third, Senate Majority Leader Mitch McConnell is hardly a hypocrite for fast-tracking the next nominee. To be a hypocrite means some common standard needed to have been set and, in this case, Democrats would do the exact same thing. If hypocrisy exists in politics, we should just call it all politics and save our breath.
Lastly, Trump Republicans are gloating now that their sole reason for voting for him has borne fruit. “What about the Supreme Court?” we were told. Justice Kennedy reminds us that a so-called conservative nominee can do more harm than any progressive. Just ask Ronald Reagan, who appointed Kennedy. The High Court has become an extension of extreme politics and conservatives should not play that game. A conservative majority on the Court does not make Trump all-of-the sudden smart, decent or fit to be president. He remains an unfit buffoon.
And, if the new conservative standard for freedom is to legislate from the Supreme Court, following the decades-long example of progressives, then maybe not only am I no longer a Republican, maybe I am no longer a conservative?