After issuing its final decision of the summer — in the union-busting Janus vs. AFSCME case, which has spread dismay throughout the labor movement — the Supreme Court had one more surprise up its baggy black sleeve. It will now say goodbye to 81-year-old Justice Anthony Kennedy, who announced his retirement Wednesday after serving 30 years on the high court.
The announcement sent shock waves across the political chattering classes. Liberals went into full-blown panic. Conservatives threw themselves a party, gleeful at the thought that Donald Trump will be able to appoint another Supreme Court justice after installing Neil Gorsuch in a seat that Senate Majority Leader Mitch McConnell, in a blatant violation of his constitutional duties, held open for Trump by refusing to give Barack Obama's nominee, Merrick Garland, the hearing and vote he was entitled to in the Senate.
The reason for this partisan reaction is that Kennedy, who was appointed by Ronald Reagan in 1987, is widely considered the swing vote on the court. Whoever Trump nominates will almost certainly be handpicked by the far-right Federalist Society, and in the same mold as Gorsuch: A right-wing hack who ignores all judicial restraint in order to take a hatchet to all manner of human rights and social-justice laws, often on the thinnest of pretexts. This person will also likely be young enough to sit on the court for 40 years, rubber-stamping whatever authoritarian nightmare ideas the Republicans, especially under Trump, keep coughing up.
Stay tuned next year when Justice Bob "Federalist Society" Smith writes an opinion explaining how internment camps for Central American infants are exactly what Thomas Jefferson imagined would characterize this great nation 193 years after his death.
Still, the liberal freakout over this situation only underscores the chronic problem of the American left, ranging all the way from the most centrist, "moderate" Democrats to the performative red rose Twitter folks: The collective inability to realize how f**ked-up a situation is until it's too late to do anything to unf**k it.
The reality is that conservatives cleaned our clock on the court issue a long time ago. That would have been true even if Anthony Kennedy had remained on the bench until he was 102 years old and President-for-Life Donald Trump Jr. was writing executive orders requiring all American women under 25 to pay their taxes in nude selfies sent to the White House. Let's be clear: Kennedy was no friend to liberals, and definitely no threat to Republican efforts to terminate the ability of voters to kick them out of office. Anyone who thought otherwise, or who still does, is fooling themselves.
To be fair, it's easy to see why Kennedy got a reputation for being reasonable. On a handful of issues important to social-justice movements, he got it right. He voted to legalize same-sex marriage and struck down laws banning homosexual sex. With great reluctance, allowed that women still have the right to an abortion, though he spent his career signing off on various ways to make that experience more miserable, including upholding a law that made medically necessary abortions more painful and emotionally wrenching.
Because of his occasional glimmers of human compassion, Kennedy got a reputation as being a "moderate." He was not a moderate, and especially not on the issue that might be most pressing for the United States in the coming years, that being the effort to preserve our democracy in the face of Republican efforts to destroy it.
Kennedy — a Reagan appointee, for those who have forgotten — spent much of his Supreme Court career supporting Republican efforts to gut the ability of progressives to compete politically on equal footing, even when doing so meant doing real harm to democracy itself.
Kennedy voted to shut down vote recounts in the 2000 Florida election, siding with George W. Bush, who clearly worried that Al Gore would emerge the winner if the vote count proceeded. (Which is likely, as most voters in the state clearly intended to vote Gore.)
Kennedy wrote the opinion in the Citizens United decision of 2012 that eviscerated campaign finance law by allowing wealthy donors and corporations to dump money into electoral politics without restraint. The resulting explosion of super-PAC spending has, in turn, helped secure Republican control of all levels of government, from county governments and state legislatures on up.
Kennedy voted to strike down Section 4 of the Voting Rights Act in 2013, which opened the door to the flood of voting restrictions in numerous states, which are clearly aimed at shutting out Democratic voters and specifically to target voters of color with onerous restrictions that limit legal voting rights for no valid reason.
In the past month, Kennedy has gone hog-wild dismantling voting rights. He has voted to uphold an Ohio law meant to kick legal voters off the rolls, to uphold racially discriminatory gerrymandered maps, and to punting on blatant partisan gerrymanders, even though he surely know that whichever Right-wing Robot the Federalist Society picks for Trump's next justice will sign off on them.
Oh yeah, and Kennedy also voted against public-sector unions in Janus vs. AFSCME. Part of that is simply consistent with his long history of siding with corporate interests against workers at every opportunity, but part of it is also likely due to his knee-jerk Republican loyalties. A major reason Republicans are so intent on dismantling union power is because unions are effective at organizing coalitions to support progressive policies and Democratic candidates. Take out unions, and not only can conservatives drive down wages, but they can increase the Republican stranglehold on power, even as increasingly large majorities of Americans want them out of office.
Even Kennedy's retirement fits the pattern. He knows Trump is a racist authoritarian with an obvious hunger for fascist levels of power. But Kennedy would still prefer Trump to nominate his replacement than a Democratic president who could (at least theoretically) take office in 2021.
No, the time for liberals to care about the make-up of the federal bench was long ago. It wasn't that Democrats didn't fight hard enough to seat Merrick Garland. McConnell, who is a single-minded power hog himself, was never going to bend on that one anyway. The problem is that for years, even decades, liberal-leaning voters have ignored the courts and Democratic politicians, in response, have not campaigned on the issue.
Democratic senators didn't do enough to block dreadful Republican nominees, like Samuel Alito or Clarence Thomas, in years past. Barack Obama didn't prioritize speed in appointing judges when he had a Democratic majority, leaving McConnell the chance to stonewall his nominees when he finally got around to dealing with this issue.
Republican voters care deeply about the courts, and because of that they have organized and voted and made getting conservative justices a priority. Their vigor paid off, and they have successfully reshaped the federal judiciary into a body that's far to the right of the American public. Give credit where it's due: They realized that the courts mattered, and acted like it early and often.
Liberals are so late to the game that we are now panicking about the barn door opening years after the horse departed. No doubt whomever Trump appoints to fill Kennedy's seat will be worse than Kennedy. But honestly, he or she won't be that much worse, because Anthony Kennedy was a major architect of the legal hell America is in right now.
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