Kennedy’s Sadly and Unnecessarily Tainted Legacy

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Posted in: Constitutional Law

The Supreme Court’s latest term of almost uniformly hard-right decisions ended last week with the surprise announcement that Justice Anthony Kennedy had decided to retire from the Court. What comes next is almost certain to be an ever more reactionary Court, with Justices Thomas and Gorsuch leading an empowered bloc toward reconsidering established doctrines across the board (abortion rights being only the tip of the iceberg).

It is already too late to get ahead of the political and media frenzy that Kennedy’s retirement announcement caused, but we can at least take a moment to pull back a bit and look at how the most recent term fundamentally altered the way that history will view Kennedy’s career. It is especially important to remember how the Court’s conservatives approved of Donald Trump’s Muslim ban and to understand why that fateful decision will quite rightly stain Kennedy’s legacy forever.

The larger picture that emerges is that Justice Kennedy’s votes this term confirmed both his right-wing fundamentalism and the direction in which the Court would have continued to move even if he had chosen not to retire. I understand why liberals fear the future, but the present was already plenty bad. And the Muslim Travel Ban case resides in a category (almost) by itself.

The Kennedy Proto-Legend and the Sober Reality

Before I discuss Justice Kennedy’s legacy, I should engage in full disclosure. As many Verdict readers know, I am close friends with co-columnist Michael Dorf, who was in turn a clerk for Justice Kennedy in the Court’s 1991–92 term. Even though I have never met Kennedy, the mere two degrees of separation might lead some to suspect that what I write here might be based on some inside knowledge about his thought processes or non-public views. It is not.

Professor Dorf wrote an essay about Kennedy’s retirement on our blog last week, expressing both personal gratitude and more-than-occasional professional disagreement with his former boss. Those on-the-merits disagreements were not minor. I can add that, although I have had conversations with Dorf over the years about many of these cases, I never had the feeling that I was getting any inside knowledge about Kennedy.

Indeed, although I cannot speak for Professor Dorf—and I certainly do not pretend to do so in anything that I write here—I suspect that he had no such inside knowledge. I say this both because he never claimed to possess such information and because I know that I would be hard-pressed to read the mind of the judge for whom I clerked after law school (and my clerkship was only fourteen years ago, compared to Dorf’s twenty-six years since his time in Kennedy’s chambers). Even though clerkships are intense mentoring relationships, they are anything but mind melds.

Even so, Professor Dorf is often sought out by the press on Kennedy-related matters (even more so than he is already pursued because of his stature among constitutional law scholars), which I suspect reinforces the impression that he is some version of a “Kennedy whisperer.” Whether he is or is not (and, again, I do not think that he is), I certainly am not privy to anything that would make me a second-order Kennedy savant. To repeat, I speak only for myself in this column.

And now we can move on to the discussion of Kennedy’s legacy. There is already a massive amount of commentary on Kennedy’s Supreme Court career, much of it quite complete in its coverage of the full run of three decades of Kennedy cases. I cannot add to or improve upon that literature, so I will instead argue that the just-ended term—Justice Kennedy’s last on the bench—deserves to be called a tragedy.

The larger tragedy, of course, is in the impact on the particular litigants and the people whose lives will soon be damaged and, in some cases, completely ruined by the Court’s ideologically driven arch-conservative decisions. The voters who will be removed from registration rolls, the people who will be unable to sue large companies because of the Court’s de facto prohibitions on group litigation, the workers who will lose representation by public sector unions, and certainly the Muslims who are being victimized by a White House run amok will all feel the pain of the Court’s unprincipled hyper-politicization of American jurisprudence.

To the extent that extremely comfortable and famous people with long and successful careers can be said to be tragic figures, however, Justice Kennedy will surely qualify. And as I noted above, this would not be the case without this term’s cases. If Kennedy had retired last year, he would have been viewed as a mostly-right-leaning swing vote who was difficult to predict. Now, that is all wiped out and replaced by a clearer and more depressing picture of the man’s lifetime of work.

In the short time since his announcement, we have learned that Kennedy allowed himself to be wheedled into retirement by a White House that warned him that, as a New York Times report put it, “[t]here was no telling … what would happen if Democrats gained control of the Senate after the November elections and had the power to block the president’s choice as his successor.”

Why would that be a selling point for Kennedy? Based on what everyone thought about him prior to June 2018, it would have been easy to imagine that Kennedy had complete disdain for Trump and what Trump’s rise has done to the Reaganesque Republican party from which Kennedy emerged. Along the lines of the NeverTrumpers, Kennedy’s center-ish reputation should have led us to believe that the now-retiring justice would be horrified by what his party has become.

Even before Trump’s rise, there was some talk after Senate Republicans blocked Merrick Garland’s nomination to the Court that Kennedy might subtly push back by essentially rebalancing Justice Scalia’s replacement, voting as he thought Garland might have when necessary. I can understand the objection that Kennedy might have had to such a suggestion—that he would be violating his oath by deciding cases strategically rather than on the merits—and I respect it, even though there is a more than colorable argument that there are “ties” that need not go to the proverbial runner.

In any case, this is different. That Kennedy would deem it acceptable to be replaced by someone whom Trump will select based on the recommendations of the extremists who have taken over the party (and who gave the world a second Clarence Thomas in the person of Neil Gorsuch) is absolutely astonishing. Or, to be more accurate, it simply destroys any objective argument that Kennedy was not a partisan politician in judicial garb all along.

After all, a Trump nomination in the face of a Democratic Senate after the mid-terms would either end in no confirmation at all or with the naming of a compromise justice, either of which would preserve Kennedy’s swing-justice position. Actively participating in a plan to replace himself with someone who will surely be to his right—even if the White House makes unenforceable promises in advance to find someone who will not be hostile to Kennedy’s accomplishments—exposes Kennedy not as a principled center-right jurist but as an anything-goes partisan to his core.

This Term’s Rulings and Kennedy’s Shame

On the purely political side, therefore, the circumstances of Justice Kennedy’s departure did irreversible damage to his claim to a legacy on the merits of his jurisprudence. But even without those extra-judicial machinations, it is the Court’s rulings this year that have emphatically made it imposible to hold a fair-minded view of Kennedy as anything but a results-oriented ideologue.

I fully acknowledge the important role that Kennedy played over the course of his career in key opinions that liberals have celebrated. Recognition of same-sex marriages has changed society (and has also been surprisingly backlash-free, contrary to much handwringing in liberal circles in advance of that ruling). Similarly, Kennedy’s willingness to join with former Justices Sandra Day O’Connor and David Souter in protecting women’s right to choose in the 1992 Casey decision was important, to put it mildly.

Even so, there were more than a few items on the other side of the ledger, including Kennedy’s cowardly vote in Bush v. Gore, his majority votes in Citizens United and Hobby Lobby, and on and on.

In the face of a mixed record—even a lopsidedly mixed record—one might nonetheless have been able to conclude that Kennedy was a more-often-than-not conservative justice with a true independent streak. That conclusion was made plausible only by placing especially heavy weight on a few liberal votes, but perhaps those liberal votes truly did deserve to be weighted so heavily.

What we now see, however, is that Kennedy had the opposite of “blind spots.” That is, even the best people occasionally go astray on a specific type of issue because of some specific quirk in their nature or background, whereas Kennedy occasionally could suddenly see straight for one reason or another before losing his vision once again.

Justice William O. Douglas, for example, was almost comically unwilling to vote for the government in tax cases, apparently because of a personal tax issue that stuck in his craw for the remainder of his life. Less broadly, Justice John Paul Stevens infamously “failed the First Amendment” with his dissenting 1989 vote that would have allowed governments to ban flag burning, a view that he did not change in subsequent years.

The point is that finding exceptions to rules does not mean that there are no rules. And based on the full body of evidence, Justice Kennedy’s prior reputation as a judicially modest almost-centrist has gone from being merely a stretch to simply unsupportable.

Kennedy did not join the non-conservatives to form a 5–4 majority on a single case this term, even though there were plenty of cases in which Kennedy could have shown an independent streak by voting with the (more or less) liberal justices. Indeed, he even refused to vote against gerrymandering after having all but deliberately tantalized people with the possibility that he would finally draw the line. Instead, he walked away.

Yet even a full term of votes in which a person reinforces the impression that he is a right-wing ideologue would not necessarily force us to conclude that he was never truly what we thought he was. Even a fair set of dice does not have to come up double sixes exactly one out of every 36 rolls. Perhaps this was simply a term in which the cases all leaned toward Kennedy’s conservative roots.

Perhaps, but it is difficult to see how at least some of the conservatives’ decisions would not drive away a supposedly independent and principled thinker. The Masterpiece Cakeshop case, for example, saw Kennedy joining with his colleagues in an utterly absurd finding of “taint” and supposed religious animus that was supposedly to be found in the words of some Colorado civil rights commissioners. This is not conservativism of either the political or judicial variety. It is extreme solicitude to the dominant religion in the country, blessed (pun intended) by five Republican appointees.

Yet it is the Muslim Travel Ban case that is in a different category and therefore that changes Kennedy’s reputation forever. This is the Korematsu of our time, the case that will forever hang over the names of the justices who signed it. In fact, the majority opinion’s defensiveness about Korematsu fairly reeked of people who “doth protest too much,” and for good reason.

As many commentators have pointed out, the Muslim Travel Ban case carried with it an extra dollop of hypocrisy in that the same five justices had only weeks before invented a constitutional violation in those now-infamous comments cited in the Masterpiece Cakeshop case that I referenced above.

Justice Kennedy and his colleagues, after all, concluded that a person is “biased against religion” merely because he says that it is despicable to use religion to justify bigotry. Really? Growing up as the son of a Presbyterian minister, one of the most important lessons I learned was that “the devil can cite scripture to his own ends,” and every religious person I knew was especially worried about people hiding bigotry behind religion.

This was an especially sensitive matter, in fact, because the mainline Protestant denominations had suffered schisms in the nineteenth century over the question of whether religion could be used to justify slavery, with the churches in the southern states conveniently finding scriptural rationalizations for the great abomination. Those schisms were not healed until the end of the twentieth century, so this is no small matter.

Somehow, however, the Court’s majority in Masterpiece Cakeshop found anti-religious bigotry in a person’s revulsion at the thought of using religion to justify bigotry. That is an impressive feat of thinking backward (and backward thinking).

But it is not the hypocrisy highlighted by the coincidence of the timing of the two cases that is the true problem with the Muslim Travel Ban decision. The problem is that the Court’s conservative justices insisted on ignoring loud-and-proud evidence of true bigotry uttered not by one or two out of several decision makers but by the President of the United States himself. The right-wing justices’ protestations that they could only look at the words of the president’s order made a mockery of First Amendment jurisprudence, as Justice Sotomayor’s somber dissent made abundantly clear.

Again, this is not conservatism of either the political or judicial variety. This is Trump-ism as the inevitable conclusion of the Republican Party’s decades-long march toward proudly embracing fact-free white grievance, and it is something that many truly conservative people have rejected emphatically. A nativist president told the world that he would keep people out of the United States based on their religion, and his enablers then said that they were powerless to look at the animus that was not even hidden in plain sight but was simply in plain sight.

We will not see the equivalent of Japanese internment camps—although, as a very much related matter, we have certainly seen something strongly resembling those prisons in the Trump administration’s newly harsh policies that treat even refugees and their children as if they are criminals—but the US Supreme Court has to its shame held that so long as a president’s lawyers say that they have an innocent-sounding reason to do something bigoted, then the Constitution is silent.

This could not be more important. Under Donald Trump, the United States has, taken a hard turn toward hatefulness and exclusion. The lower courts had no trouble finding that this was a constitutional travesty. It was honestly shocking that any of the five justices would go along with Trump on this matter. That soon-to-be-former Justice Anthony Kennedy signed on is beyond sad, for the world and for those who once felt that he was someone about whom we could say, “I often disagree with him, but one can still see that he is not a partisan ideologue.” After June of 2018, that argument is quite unfortunately no longer within the realm of reason.