On Wednesday, what had seemed a particularly contentious finale to the Supreme Courtâs termâwith major cases involving union dues, the Presidentâs travel ban, cell-phone location data, and anti-abortion âcrisis pregnancy centersââturned out to be a prelude to a bigger fight, when Justice Anthony Kennedy announced that he would retire at the end of July. Kennedy is eighty-one years old. President Ronald Reagan nominated him to the Supreme Court in 1987; now President Donald Trump will name his successor. It wonât, at least in the short run, be anyone who comes close to filling the role that Kennedy has held (however imperfectly, however inconsistently) as a swing vote between the conservatives and the liberals. The center may just have fallen out of the Court.
Kennedy, in what looks to be his last opinion, in Trump v. Hawaiiâa four-paragraph concurrence, agreeing with the majority in upholding the travel banâsuggested that even the center that remains has become a sort of invisible island, extant but ignored. âThere may be some common ground between the opinions in this case, in that the Court does acknowledge that in some instances, governmental action may be subject to judicial review to determine whether or not it is âinexplicable by anything but animus,â â Kennedy wrote. The animus, or bigotry, in this case, âwould be animosity to a religion.â Since the Trump Administration had come to the Court arguing that its actions were not subject to reviewâa frighteningly extreme positionâKennedy was right in seeing agreement between the five-vote majority and the four dissenting, liberal Justices. But did even Kennedy think that this was enough?
He did have more to say in his farewell concurrenceâand it seems appropriate, somehow, that his goodbye was a concurrence, rather than a majority opinion or a dissent. Kennedy didnât let himself be possessed by either side, but, except for on a few issues, such as gay rights, he didnât own the leadership, either. Indeed, the concurrence suggested a resistance to the idea that he, or the Court as a whole, could or should be the big answer to everybody. âThere are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention,â Kennedy wrote. That is true; the President does, one way or another, have a lot of power to make policy, as does Congress. Kennedy might have offered a plea to Americans to remember that their other, and perhaps truer, court of last appeal is the ballot box. Instead, he addressed those who held office. In fact, it felt as if he might have been talking to one office holder in particular: âthe very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.â
And Kennedy, in the fourth and final paragraph of the concurrence, explained how he envisioned that promise, with the First Amendmentâs guarantees of the free exercise of religion and freedom of speech, from which âit follows there is freedom of belief and expression.â He ended, âIt is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs. An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.â
An anxious America might want to know why Kennedy, having posed the question in such poignant terms, would walk away at this moment. (He was once a judge on the Ninth Circuit: Trump has often derided his successors there for their âterrible decisions.â) He no doubt has his reasons; they may be deeply personalâno one is entirely public property. One of his more moving opinions, in Obergefell v. Hodges, which affirmed the right to marriage equality, spoke about how the formation of households and of a private sphereâlove, one might sayâis integral to our democracy. No one is irreplaceable, but Kennedy, with all his flaws, will almost certainly be replaced with someone who does worse things for America.
Soon after Kennedy announced his retirement, my colleague Jeffrey Toobin tweeted, âAbortion will be illegal in twenty states in 18 months.â That might, to an extent, depend on the outcome of the midterm elections. âWe will vote to confirm Justice Kennedyâs successor this fall,â Mitch McConnell, the Senate Majority Leader, said after the news broke. The willingness of Democrats to facilitate that process will be limited, given that McConnellâs obstructionism prevented Merrick Garland, whom President Barack Obama nominated after the death of Justice Antonin Scalia, some ten months before the end of his second term, from even getting a hearing. That act of spectacularly bad faith has not been forgotten. But there is less that the Democrats can do, this time, without a majority. (Among other things, because of a change in Senate rules last year, simply filibustering Supreme Court nominations is not really an option.) They will need the help of at least a couple of the Republicans who claim that they are not in thrall to Trump. (Jeff Flake, Susan Collins, and Lisa Murkowski come to mind; John McCain may be too ill to travel from his home in Arizona to vote.) This will be a test for them, too.
Trumpâwho said that he had had âa very deep discussionâ with Kennedy on Wednesdayâpicked Neil Gorsuch to fill the spot that should have gone to Garland. He said that Kennedy had âdisplayed great vision,â and that he would pick someone âjust as outstanding.â He added that âwe have a list of twenty-five peopleâ as possible replacementsââtremendous people.â That list, which the White House released last November, was put together with the help of the Federalist Society; Trump seems to view judicial appointments as a cheap currency with which to pay back his most conservative voters.
If the process isnât resolved by the midterms, it will be one of the central issues in that election. Trump will call for the ousting of red-state Democrats, such as Senator Joe Manchin, of West Virginia, in order to âsaveâ the Court. And the campaigns will be bigger and angrier and more gaudily expensiveâand more infected by dark-money-fuelled conspiracy theories, bots, and fear-mongeringâthanks, in part, to another aspect of Kennedyâs legacy: in 2010, he was the author of the majority opinion in Citizens United.