It might be better if Anthony Kennedy stayed on the Supreme Court, but things would still be so dire that better is not quite the right word for it.
With Kennedy on the court, this week was still one long bummer. A single Fourth Amendment case was firmly decided on the side of liberty. Every other case was either decided for bad or was sent back to return another day, to a more conservative court. One political gerrymandering case was crafted to show that its target matched Kennedy’s detailed description of a gerrymander that violated First Amendment rights. Kennedy voted to send the case back on narrow grounds. If it returns to the Supreme Court, he won’t be there.
Some say Kennedy punted. That’s fair.
I say he went onto the field on third down, seconds remaining, to win the game with an easy field goal. The snap is good. Kennedy runs. And he kicks half a yard to the left of the ball, missing it completely as the other team swarms the holder.
TIme runs out! Kennedy leaves the field untouched, his dignity held high. He’s kept himself above the fray, yet determined the outcome.
The team doctor is still working on the holder. Poor Charlie Brown. Poor you.
Kennedy is a conservative and a believer in civility and compromise. He’s spent his career on the Supreme Court splitting differences in the interest of compromise.
(Except on issues which determine who controls the government. There he votes consistent conservative.)
In his last term, he gave up on compromise. As Dahlia Lithwick and Mark Joseph Stern point out:
There have been 13 5–4 decisions so far this term that have pitted the conservative justices against the liberals. Kennedy went with the conservatives all 13 times.
This is the true Anthony Kennedy: A Reagan appointee whose older, more genteel style of conservatism is next-door neighbors with hard-right radicalism, when push comes to shove, when it comes to who holds power. As Dahlia Lithwick says,
To the extent we wrote paeans to Kennedy, it was for his occasional defections in areas that materially affect the lives of millions of people—women, minorities, LGBTQ couples, voters, Guantanamo detainees. And to be sure, each of those votes was well worth it. But we knew that for each such vote, there was a Bush v. Gore, a Citizens United, a Shelby County.
Each of those cases was about who holds power. There, Kennedy was a conservative’s conservative, yet in “fan fiction…Justice Anthony Kennedy was a moderate centrist”. Does any other living conservative politician besides John McCain have such a hold on the wishful liberal imagination? And so here we are, “In Nineteen-Nineties Orlando with Trumpy and Stormy!”
Mark down Justice Anthony Kennedy as one more thing which will not save you. Institutional power will not save you, either. We will have to save ourselves.
