The praise that Justice Anthony Kennedy is getting for being a courageous “swing” vote on the Supreme Court is nauseating. Kennedy clearly knows that whomever Trump nominates to replace him will vote to wipe out the protections for abortion and LGBT rights that Kennedy supported. Whatever praise Kennedy has received for helping chip away at homophobia and patriarchy, he no longer deserves. Thus, his legacy should NOT be his votes on those two issues, but his complicity with Trump to steer the Court even further to the right for at least the next 20 years.
Kennedy made a calculated political decision to retire on July 31. None of the news stories about his retirement indicate that the 81-year-old jurist is suffering from an illness that would preclude him waiting another 14 weeks—98 days—until the November 6 elections. Appointed by Ronald Reagan, he was clearly worried that the Democrats might win a majority of seats in the Senate and be able to thwart Trump from filling his seat with a true-blue right-winger, just as Senate Majority Leader Mitch McConnell and the Republicans killed President Obama’s efforts to replace Scalia, claiming that they should wait until after the 2016 election.
The news stories about Kennedy’s retirement have inaccurately called him a “centrist” and “inscrutable.” He was a conservative who rarely differed with his conservative colleagues except on two highly visible issues. He clearly supported gay rights, writing the majority decisions in Lawrence v. Texas (which said that states can’t criminalize consensual sex act by adults), Obergefell v. Hodges (which said that states can’t ban same-sex marriage), and United States v. Windsor (which said that the federal Defense of Marriage Act, which defined marriage as between a man and woman, was unconstitutional). Despite his reputation on abortion, Kennedy was not pro-choice and his rulings on the issue were inconsistent. He is often praised for refusing to overturn the landmark Roe v. Wade ruling, but he actually supported efforts to limit the right to an abortion, in Planned Parenthood v. Casey and Whole Woman’s Health v. Hellerstedt.
On key matters of economic and political justice, Kennedy was a true-blue conservative. Kennedy knows that whomever Trump appoints will vote with the new right-wing majority to reverse Roe v. Wade and rulings on gay rights and same-sex marriage. He obviously cares more that the next Court sustain his conservative views on political and economic matters than that it uphold his decisions on abortion and gay rights.
After his retirement, the Chamber of Commerce should give Kennedy a lifetime achievement award. Kennedy wrote the majority decision in Citizens United to end limits on corporate funding of political campaigns. In 2003, he wrote a partial dissent in Norfolk & Western Railway Co. v. Ayers, in which he argued that railroad workers who had contracted asbestos poisoning on the job should not be entitled to monetary compensation for pain and suffering. In a 2009 case, Coeur Alaska Inc. v Southeast Alaska Conservation Council, he consolidated his reputation as a voice for big business. In that case, he wrote a majority opinion permitting an Alaskan mining company to dump waste in a lake, which environmental groups claimed violated the Clean Water Act. He just voted with the conservative majority in the Janus decision to make it difficult for labor unions to collect dues, which will have the impact of not only weakening workers’ voices on the job but also of weakening the Democratic Party and progressive policies.
Kennedy has been a lock-step conservative on other important issues. He joined the majority in Bush v. Gore, which ended Florida's recount and handed the White House to George W. Bush. He voted to weaken the Voting Rights Act and to allow Republicans to purge voter rolls in ways that strengthen the GOP and weaken the Democrats. He voted against affirmative action. He opposed plans to desegregate public schools in Seattle and Louisville. He voted in favor of Trump’s racist travel ban. He voted to invalidate a handgun ban in the District of Columbia and supported a ruling that the Constitution protects a person’s right to keep a loaded gun at home for self-defense. He refused to rule on several cases involving racial and partisan gerrymandering, voting instead to require critics of gerrymandering to come back later with better data and arguments. In other words, on this clear-case violation of democratic rights, he punted.
Trump will surely nominate someone who will not only reverse his views on abortion and gay rights but who is equally or more conservative than Kennedy on immigration, corporate power, voting rights, gun control, labor unions, gerrymandering, and other issues. If Trump and Kennedy get their way, the next Supreme Court—with two members (including Gorsuch and Kennedy’s replacement) appointed by Trump, one (Thomas) appointed by George H.W. Bush and two (Alito and Roberts) appointed by George W. Bush—will reign supreme for another generation. Gorsuch is 50; Roberts, 63; Alito, 68; and Thomas, 70. Trump is likely to nominate someone in his or her 40s or 50s.
Trump has been cultivating Kennedy for over a year, praising him effusively, clearly hoping to entice him to retire so he could nominate his replacement. Kennedy took the bait. It is possible that Trump offered Kennedy a deal (such as agreeing to nominate one of his former clerks if he’d retire now), although Kennedy should be smart enough to know that you can’t trust anything Trump promises. Or Kennedy may simply have wanted to ensure that Trump got to fill the seat with an ideological soulmate before the Democrats were in a position to prevent it.
Regardless of his motives, Kennedy will be responsible for allowing Trump to name a replacement who, along with the other right-wingers on the court, will further erode American democracy, promote white supremacy, turn back the clock on women’s rights and LBGT rights, and strengthen the corporate plutocracy. That’s Kennedy’s legacy.