The news of Justice Anthony Kennedy’s impending retirement from the Supreme Court passed through my mind with the hollow sound of doors slamming shut. A conservative Supreme Court majority comprised of Roberts, Alito, Thomas, Gorsuch and Trump’s choice to replace Kennedy will be nothing short of a generational catastrophe for the United States.
Make no mistake about this: Donald Trump is going to tap some Gen-X fascist in perfect health who will perch in Justice Kennedy’s seat for the next 40 years like a blossom of deadly nightshade. Allowing Donald Trump to refashion the Supreme Court in the image of his repellent will is just about the worst thing that could possibly happen,because it means the worst is still yet to come. This person will be atrocious, and the Democrats — a few less-than-clever election year quips notwithstanding — will be powerless to stop them.
When Senate Majority Leader Mitch McConnell blocked the nomination of Merrick Garland, President Obama’s choice to replace Antonin Scalia, on the grounds that 2016 was an election year, it was seen as an entirely bogus and unprecedented move. The Democrats raised seven shades of Hell, and lost, and Neil Gorsuch is our reward.
MSNBC’s Chris Matthews can yell all he wants about the need for Democrats to fight this next nominee, but there is little they can do even if they were disposed to act at all. They filibustered Gorsuch, and McConnell simply changed the rules for how many votes Supreme Court nominees need to get confirmed.
On Wednesday, McConnell — a master troll in his own right — had the perfect gall to demand, “It’s imperative that the president’s nominee be treated fairly.” It would be funny but for that feeling of falling down an empty elevator shaft.
Speculation as to exactly which racist, hateful, homophobic, misogynistic, pro-corporate, anti-environment, vote-loathing nightmare Trump will pick to replace Justice Kennedy is a waste of energy at this juncture; each name proffered will certainly be more preposterous than the last. Trying to fathom what this new murderer’s row majority will do to the country is equally bootless. It will be ruthlessly terrible, details to follow.
Kennedy’s Legacy
Coming to grips with the legacy Justice Kennedy leaves behind is almost as difficult as coming to grips with the scalding reality that Donald Trump now has the opportunity to add a second Justice to the high court (with perhaps a third and fourth in the offing, if some retirement rumors prove true). Kennedy’s passage through the highest reaches of US jurisprudence has not been dull.
Though it may shame him (one would hope), Justice Kennedy’s lasting legacy was printed eight years ago in the majority decision he wrote for the court’s calamitous ruling on Citizens United v. FEC. “Independent expenditures,” he said regarding the whole concept of legalized political bribery, “do not lead to, or create the appearance of, quid pro quo corruption.” Perhaps someone, somewhere was more wrong at some point than Kennedy was when he penned that hilariously credulous disaster zone of a decision, but that someone does not immediately leap to mind.
If the United States continues on its current path toward some final New Gilded Age calamity, drowned by a rising climate-driven sea that politicians ignored until their feet got wet because the coal and oil industries paid for the privilege, well, look no further for an explanation than Justice Kennedy’s naive belief in the idea that elected officials won’t be corrupted by massive sums of untraceable money. Flat-Earthers have more credibility than anyone attempting to make that ridiculous argument, yet here we are.
There have been a number of remarkably awful Supreme Court decisions handed down over the years — Dred Scott, Santa Clara v. Southern Pacific, Buck v. Bell, Bush v. Gore, Plessy v. Ferguson, Korematsu v. US to name but a few — and Citizens United stands tall and grisly among them. Whatever good Justice Kennedy dispensed from the bench may be wiped away in due course after rich people who don’t like marriage equality and the right to vote succeed in buying themselves enough politicians to see those great gains scourged from the law.
As we are learning by the hour and the day, it does not take much to obliterate decades of progress. Citizens United made that obliteration so much easier, and if anything, its power is only accelerating. Money, as they say at the bank, makes money.
Justice Kennedy was a noteworthy champion of LGBTQ rights during his tenure, which was capstoned three years ago by the decision he wrote in Obergefell v. Hodges, the landmark ruling that made same-sex marriages equal under the law. Kennedy, long known for his soaring rhetoric, penned a truly moving stemwinder for the majority in that case:
As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage…. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
Unfortunately, writes Mark Joseph Stern for Slate, the marriage equality decision may be undone by way of Kennedy’s retirement: “The cornerstone of Kennedy’s gay rights jurisprudence — Obergefell v. Hodges, the marriage case — was a 5–4 decision. Three dissenters — Chief Justice John Roberts, as well as Justices Clarence Thomas and Samuel Alito — are still on the court. One, Justice Antonin Scalia, died, but Trump replaced him with Justice Neil Gorsuch, who promptly expressed fierce hostility to gay equality. Trump is all but assured to replace Kennedy with a judge who shares the conservatives’ opposition to gay rights.”
In the main, however, Justice Kennedy — despite his strange reputation as a “swing vote” on the court — departs with some significant historical baggage. He was no great friend to voting rights, having voted to strike down Section 4 of the all-important Voting Rights Act. Kennedy voted to shut down the recount in Florida during the 2000 election, helped kick Ohio voters off the rolls in Ohio, and voted to uphold or ignore racially gerrymandered districts in North Carolina and Texas. Just this week, he also voted to dismantle the power of public-sector unions in Janus vs. AFSCME.
In short, the dilemma is not that the court is losing Justice Kennedy so much as it is the gloomy question of who will replace him.
The Dangers Ahead
Anything done can be undone, as we have been learning to our collective woe these last two years. Now that Kennedy is on the way out, the fate of Roe v. Wade is thrown into perilous question.
It has long been my personal belief that the national Republican Party would sell the Sixth Fleet to North Korea for a bottle of bad rum before they ever allowed Roe to be overturned. Religion and ideology have nothing to do with it. Roe v. Wade has been, for decades now, an enormous moneymaker for the GOP.
Put a photo of Hillary Clinton next to a fetus into a direct mailer, send it to the GOP base, and that base will vacuum up nickels from between the couch cushions and post them directly to RNC headquarters. A mailer like that is good for five million dollars in 36 hours, easy. The Republicans have cynically ridden the anti-choice passions of their base for all it is worth, literally, to great and ongoing success.
The GOP has taken some hacks at Roe over the years and done serious damage to it, but never to the point that the law itself was thoroughly undone. They had 20 years of Republican presidents to try and undo it — Reagan and both Bushes — and still it stands.
Now, however, we have a president whose entire political philosophy hinges upon handing the GOP base everything it has ever wanted. Trump has never given a damn about the Republican Party and its priorities, any more than the Republicans have ever given a damn about the passions of their anti-choice base, and now he can prime the court to give that base the ultimate prize it has sought for so long: The fall of Roe. Now, for the first time, I fear the worst.
In the coming weeks and months, Donald Trump may very well be officially accused of collusion with Russia, election meddling, obstruction of justice, money laundering and — if Robert Mueller ever gets him in a room and under oath — possibly even perjury.
The question of his ultimate fate may hinge upon the ideological makeup of the high court, which will soon be Trump’s court from marble pillar to marble post, save for a small clutch of powerless dissenters. “If the president does it, it’s not illegal” may soon become — along with any number of equally heinous notions — the law of the land at last.