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Justice Kennedy’s Travel-Ban Opinion, in Light of His Retirement

Justice Kennedy’s Travel-Ban Opinion, in Light of His Retirement
27 Jun
11:46

On Wednesday, what had seemed a particularly contentious finale to the Supreme Court’s term—with major cases involving union dues, the President’s travel ban, cell-phone location data, and anti-abortion “crisis pregnancy centers”—turned 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 won’t, 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. Hawaii—a four-paragraph concurrence, agreeing with the majority in upholding the travel ban—suggested that even the center that remains has become a sort of invisible island, extant but ignored. “There 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 ‘inexplicable by anything but animus,’ ” Kennedy wrote. The animus, or bigotry, in this case, “would be animosity to a religion.” Since the Trump Administration had come to the Court arguing that its actions were not subject to review—a frighteningly extreme position—Kennedy 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 concurrence—and it seems appropriate, somehow, that his goodbye was a concurrence, rather than a majority opinion or a dissent. Kennedy didn’t let himself be possessed by either side, but, except for on a few issues, such as gay rights, he didn’t 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. “There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention,” 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: “the 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.”

And Kennedy, in the fourth and final paragraph of the concurrence, explained how he envisioned that promise, with the First Amendment’s guarantees of the free exercise of religion and freedom of speech, from which “it follows there is freedom of belief and expression.” He ended, “It 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.”

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 “terrible decisions.”) He no doubt has his reasons; they may be deeply personal—no 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 sphere—love, one might say—is 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, “Abortion will be illegal in twenty states in 18 months.” That might, to an extent, depend on the outcome of the midterm elections. “We will vote to confirm Justice Kennedy’s successor this fall,” Mitch McConnell, the Senate Majority Leader, said after the news broke. The willingness of Democrats to facilitate that process will be limited, given that McConnell’s 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.

Trump—who said that he had had “a very deep discussion” with Kennedy on Wednesday—picked Neil Gorsuch to fill the spot that should have gone to Garland. He said that Kennedy had “displayed great vision,” and that he would pick someone “just as outstanding.” He added that “we have a list of twenty-five people” as possible replacements—“tremendous people.” 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 isn’t 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 “save” the Court. And the campaigns will be bigger and angrier and more gaudily expensive—and more infected by dark-money-fuelled conspiracy theories, bots, and fear-mongering—thanks, in part, to another aspect of Kennedy’s legacy: in 2010, he was the author of the majority opinion in Citizens United.

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