Anthony Kennedy’s Right to Retire
A thoughtful liberal argues the Justice has "altered and destroyed his legacy" by allowing Donald Trump to appoint his successor.
When I saw the Daily Beast headline “Anthony Kennedy, You Are a Total Disgrace to America” pop up on my news feed, I was expecting a rant from the lunatic fringe. So I was surprised to see Michael Tomasky‘s byline. He’s well to my left politically but a reasonable, thoughtful commentator. His opening argument:
It’s been a few days now, but the shock of Anthony Kennedy’s retirement announcement hasn’t abated a bit. This is partly because of the ghastly coming ramifications, more on which later. But it’s also because I honestly didn’t think Kennedy would allow Donald Trump to name his successor.
I thought he had more respect for the United States of America than to allow this corrupt gangster who’s almost certainly never read a Supreme Court opinion in his life to name his successor. Yes, Kennedy is conservative, so to that extent it makes sense that he’d want a Republican president to make the call, and maybe it’s just that simple. But whatever his motivation, Kennedy has altered and destroyed his legacy.
That’s self-refuting. Kennedy is 81 years old; he turns 82 in less than three weeks. Frankly, he should have retired a decade ago, letting George W. Bush appoint his successor. But it’s really bizarre to expect him to wait until January 20, 2021—by which time he’d be 84—so that Trump’s successor—likely a Democrat—can replace him. And that’s assuming Trump doesn’t win re-election which, as I’ve noted many times over the years, is the default position in American politics. In which case, he’d have to wait to January 20, 2024 at the ripe old age of 88. As it is, he’s older than Antonin Scalia, who died in the saddle trying to wait out Barack Obama.
While he thinks Kennedy was mostly just awful—he is, after all, a Republican—Tomasky thinks it’s the octogenarian Justice’s duty to preserve the handful of left-leaning precedents for which he was the deciding vote.
And yet, he helped advance human and civil rights in this country by voting to legalize same-sex marriage. Obergefell v. Hodges was a landmark case that was going to live in history alongside Brown v. Board of Education—a triumphant moment when we as a nation rose above past prejudices, prejudices that will look ridiculous and embarrassing a hundred years from now.
[…]
[N]ow, assuming Trump and the Republicans get their justice, it’s only a matter of time before Obergefell is overturned. Look at this map. Most of the countries of the Western Hemisphere have federal laws legalizing same-sex marriage. Canada, Mexico, Argentina, Brazil, Colombia. Someday, the United States will no longer be among them.
Kennedy was also a swing vote, of course, on abortion rights, siding with the liberals and keeping Roe v. Wade law of the land. On Sunday, Maine GOP Senator Susan Collins said seemingly pretty definitively that she’d oppose a nominee who’d overturn Roe.
But all that probably means is that the nominee will lie about it at his or her hearing. Every conservative since Antonin Scalia has sat up there and dispensed obviously insincere tripe about respect for precedent, a history Paul Waldman recounted recently in The Washington Post.
So Collins, reassured by the nominee that s/he will keep an open mind and respects precedent, will cave as she always does.
So this is what Kennedy has done. He has knowingly destroyed that part of his legacy—which was, in fact, his entire legacy, because these were the only interesting and brave things he ever did. And now these precedents will be overturned. Now, Kennedy’s legacy is the destruction of Kennedy’s legacy.
Now, Tomasky and I disagree on the nature of these precedents in that, while I’m basically in agreement where we are as a matter of policy on abortion and gay rights, I think imposing them by judicial fiat was improper. But, given his politics and view of the Court’s role, I’m sympathetic with Tomasky’s passion for these precedents.
It’s not obvious to me that Kennedy sees his legacy primarily in terms of abortion rights and gay marriage. There are all manner of narrow decisions he joined that would be imperiled if he were replaced by a Democratic Justice that could well mean as much or more to him than Casey or Obergefell. Indeed, it’s quite possible that he doesn’t see his legacy in terms of specific policy outcomes at all but rather in terms of his judicial temperament. Jack Goldsmith, a professor at Harvard Law School who clerked for Supreme Court Justice Anthony M. Kennedy from 1990 to 1991, notes,
In his 31 terms on the court, Kennedy led or tied for the most 5-to-4 cases in the majority a remarkable 20 times, including every term but one since swing justice Sandra Day O’Connor retired in 2006. His vote was extraordinarily consequential.
There are many reasons Kennedy was the man in the middle. He struggled with all sides of a case and brooded more than most justices about the right answer. And though he possessed a latent libertarianism, he lacked rigid ideological commitments that would have placed him consistently on one side of the court.
Kennedy will be most remembered for his famous progressive opinions — establishing a constitutional right to same-sex marriage and other gay rights, refusing to overturn the abortion right declared in Roe, extending the constitutional right of habeas corpus to wartime detainees held at Guantanamo Bay despite congressional and presidential resistance, limiting prayer in school and striking down the death penalty for juvenile criminals.
Despite these notable opinions on the left, Kennedy usually voted with the right side of the court — for example, to invalidate Obamacare, revitalize the Second Amendment right to bear arms, disable public-sector unions and uphold business prerogatives. He also wrote influential conservative rulings. He penned the progressives’ bête noire, Citizens United, which interpreted the First Amendment to ban government restrictions on corporate and associational political expenditures. He was a defender of federalism who wrote opinions limiting Congress’s power to enforce the 14th Amendment against states and its power to abrogate state immunity from lawsuits. He also wrote many opinions that narrowed criminal defendants’ rights and an important opinion upholding restrictions on abortion.
While Kennedy lacked an overarching jurisprudential commitment, some combination of three principles informed most of his landmark rulings.
The first and most distinctive principle was “dignity” — the quality of proper worth and esteem. Kennedy’s articulation of a constitutional “dignity as free persons” was an ineffable meld of privacy, liberty and equality that guided his landmark decisions on gay rights and will long reverberate in U.S. constitutional law. For Kennedy, dignity was not limited to individuals. The Constitution also preserves for states “the dignity and essential attributes inhering” in sovereignty, as he wrote in a famous opinion on states’ rights.
The second and related principle was a capacious notion of liberty from government interference. This principle informed his progressive social opinions but also led him to be suspicious of burdensome regulations and to read the First Amendment broadly. It also inclined him to push freedom downward, so to speak, with a thumb on the scale for states over the federal government and for individuals over both.
The third principle was a robust conception of judicial power. Kennedy believed in his bones in the integrity of judging. He had great confidence that the court’s intervention in contentious issues was vital to the effectiveness of the constitutional scheme.
These principles led Kennedy to different places in different contexts. But no matter which way he ruled, he truly sought “in each case how best to know, interpret and defend the Constitution and laws that must always confirm to its mandates and promises,” as he put it so well in his retirement letter to President Trump. And he possessed a model judicial temperament: fair-minded, thoughtful, balanced and deliberative.
I prefer my Supreme Court Justices to have a less activist view of their role and to have a more consistent legal philosophy than Kennedy. But, certainly, there is plenty of precedent for Kennedy’s view of the institution.
Taking Tomasky’s argument to its reasonable conclusion, Kennedy was already a total disgrace for not resigning years ago and letting Barack Obama appoint his successor. That Trump is “a corrupt gangster who’s almost certainly never read a Supreme Court opinion in his life” doesn’t seem to be especially relevant to Tomasky’s argument. On the day that Kennedy retired, some OTB commenters contended that Trump shouldn’t be allowed to appoint another Justice while the Mueller investigation is ongoing because said Justice might rule on his future if, say, Trump tried to pardon himself or some such. While I find those arguments unconvincing, they’re at least Trump-related. But any Republican President, even a Mitt Romney or Jeb Bush or John Kasich, would be likely to appoint a conservative replacement and thus endanger Roe or Obergefell. Indeed, if Neil Gorsuch is any indication, judicial appointments may be the one way in which Trump is a normal Republican President.
Kennedy has earned the right to retire. He’s served more than three decades on the court. He’s on his seventh President. Neither the Internet nor cell phones existed when he was sworn in. Cadets who graduated West Point that year who didn’t make general were forced into retirement two years ago. And, as I may have mentioned, he’s about to turn 82.
Not to mention, of course, that Ginsberg could have retired under Obama but when that was suggested, there was an uproar from people who couldn’t stand to lose their beloved internet meme.
Oh, and this should go without saying, but the one time in a hundred you object to this stuff doesn’t mean anything when you avert your eyes or egg it on the other 99 times. When “reasonable, thoughtful” people start ranting like lunatics, it might be time to think a little bit harder about what’s going on and who is actually to blame for it.
Mike
He has the right. Doesn’t mean it wasn’t a very foolish thing to do. Bad for the country, disastrous for Kennedy’s legacy which will now be systematically erased.
ETTD. Sic transit Anthony Kennedy.
@MBunge:
Precisely.
Answer that the idea that if Government wasn’t sold the big and powerful and able to exert its pressure on our daily lives in so many areas where it really doesn’t belong, who was on the Supreme Court probably wouldn’t matter nearly as much
This reminds me of the numerous times that liberals were pressuring Ruth Bader Ginsburg to step aside during the Obama years, which I documented at OTB on numerous occasions such as here, here, here, here, here, here, and here and it’s just as idiotic now as it was then.
@Eric Florack: @MBunge:
If nasty little racists and bigots like the two of you didn’t insist on using government to push their hate-filled agendas we also wouldn’t care quite as much about the Supremes. The disease criticizing the medicine.
The upshot of this will be the end of Roe. At that point politics changes dramatically, and I rather doubt you’ll like the results. This country is pro-choice, and women voters are definitely pro-choice. But I’m sure Trump’s pet justices will manage to harm black people and gays so that should make both of you very happy. Maybe you can cage some brown children yourselves.
@Michael Reynolds:
Depends upon how his health is. At 81 there may be medical reasons (including the onset of dementia) that override everything else. In fact, as was pointed out, it might well be he had very little chance of making it to 2021, in which case leaving earlier is better. Now if the next news reports has him entering the Boston Marathon then that’s a different situation.
Judges have their own timing; if it were mainly about politics, every older justice should retire when someone from their party has the presidency. They don’t seem to do that, so I’m guessing politics plays a small role in their decisions.
I wonder if they see their positions as less political in any case. They seem to have more 9-0 or 8-1 decisions than 5-4 decisions.
@Michael Reynolds: Is it your position that he had a duty to retire under Obama so a Democrat could replace him? Because, as with Tomasky, I don’t see Trump as different than any other Republican in this particular situation. Gorsuch was an outstanding pick by Republican/conservative standards. Unlike pretty much his entire staff and cabinet, Gorsuch is incredibly well-qualified and well-respected within his professional community.
@Doug Mataconis: I think that, presuming their mental health is fine, Justices ought be allowed to choose when to retire.* But even as a lapsed Republican, it strikes me as selfish of RBG to have continued to hang on, particularly once she was diagnosed with pancreatic cancer.
_________
*As noted in a recent post, I’d prefer Justices have limited-term appointments of 15 or 20 years. But given that the Constitution gives them lifetime appointments, they have every right to decide when and why to retire.
@James Joyner:
I get the argument vis a vis RBG, but it struck me at the time that the plaintive cries from the left for her to retire were patronizing and opportunistic. Her bout with pancreatic cancer occurred in 1999 and, outside of an operation in 2009 to remove what seemed to be the early signs of a returned tumor, she has by all accounts been in excellent health ever since then. According to reports, she exercises regularly in the Court’s gym and has been reported to have challenged, and beaten, younger Justices to a push-ups contest at various times in recent years.
That being said, there are obvious concerns about Justices at advanced ages such as hers. The worst case scenario was Justice William O. Douglas who appears to have drifted well into dementia while still on the bench to the point where his fellow Justices were deliberately delaying cases while trying to encourage him to retire. Even after he did, there were apparently several times after retirement where he showed up at the court, itself not an unusual occurrence since retired Justices are usually given office space after they leave, believing that he needed to take part in oral argument. Quite a sad end for someone who had a distinguished career on the bench.
Justice Thurgood Marshall was also known to be in ill health during the latter part of the Reagan years but was reluctant to resign for obvious reasons. His decision to step aside early in Bush 41’s term was likely difficult for him.
In Ginsburg’s case, I understand her desire to hold on to her seat while Trump is President, but she’ll be well into her 90s if Trump is re-elected in 2020.
@James Joyner:
I tend to agree. Gorsuch could have just as easily been the nominee of a President Rubio, Cruz, Bush, Kasich, or whoever might have won the GOP nomination other than Trump. For the most part, in fact, I would say that Trump’s nominees for the appellate courts have all been well-qualified, and all were rated as such by the ABA. There have been questionable picks for the District Court, some of which I wrote about last year, but as far as I know, all of those nominees either had their names withdrawn by the White House or stepped aside on their own.
Trump’s judicial nominees have been about as conventionally conservative as you can get. People on the left don’t like them, but they would have felt the same way about any nominee picked by any other Republican who became President.
@James Joyner:
It comes down to whether Kennedy thought his work was important. I find it odd to build a house then hand it off to someone who will tear it all down. He has a perfect right to quit, but that decision has consequences, among which will be the erasure of many of Kennedy’s contributions.
I have never believed the polite fiction that SCOTUS is apolitical. It’s transparent nonsense which was exposed for all to see in Bush v. Gore. The justices are as polarized as the rest of the country, with Republican justices and Democratic justices. They use the Constitution the way Christians use the Bible: they find what they want to find, see what they want to see, and merely rationalize their pre-existing prejudices.
The result here is that Kennedy has blackened his own name, damaged his legacy irreparably, and done serious, lasting harm to this country. He has the right to do all that, but that doesn’t alter the effect of his actions, and we are all responsible for the effects of our actions, are we not?
@Michael Reynolds:
I agree that Justices are inherently political creatures although many have managed to rule against policies they preferred in deference to their judicial philosophies.
Bush v Gore is an extreme oddity, though. It wasn’t a purely party-line vote (Stevens, a Ford appointee, was a dissenter) and there was no consensus rationale.
There were a dizzying number of concurrences and dissents:
As to this:
As noted in the OP, Kennedy was a swing vote. While he was a Republican and a reasonably conservative one, he often voted with the Democratic/liberal side. So, yes, a Republican-appointed successor might overturn key precedents he helped set. But a Democrat-appointed successor would do the same—just different precedents.
It turns out that a lifetime appointment to the Supreme Court is not always a death sentence. Who knew?
I hope the man enjoys his retirement, that his mistresses never need abortions, and that he never finds love with another man and wants to get married.
@James Joyner:
That’s a bit misleading. Stevens and Souter were appointed by Republican presidents but by 2000 were widely recognized as being among the Court’s liberals. Indeed, Stevens was typically described as the most liberal justice on the Court at the time.
I want to take us back to a conversation I had here with former OTB host Alex Knapp in 2011. Knapp examined the judicial philosophies and past rulings of the justices then on the Court and concluded they’d rule 8-1 in favor of the Affordable Care Act. I argued that Knapp was being wildly naive, and that Bush v. Gore had removed any pretense that the Court was anything but a partisan body. I felt the Obamacare decision was almost certain to be 5-4, and I was deeply worried that Dems were putting their faith in Kennedy, one of the justices who had voted with (and helped create) the majority in Bush v. Gore. In response, I was pooh-poohed by Knapp and other commenters, who went on to describe B v. G as a one-off episode that was not likely to be repeated when SCOTUS was deciding on a consequential piece of legislation like this.
Well, guess what happened a year later? Just as I predicted, it was 5-4. Scalito, Thomas, and Kennedy all voted to overturn the entire law (not just the individual mandate), an outcome that several people had once told me was unthinkable. The only thing that saved the law was a (practically last-minute) defection by Roberts (which I admit surprised me). Of course, Roberts still voted to cripple the law’s underrated Medicaid expansion. But the fact that the law survived mostly intact helped people forget that the decision was a lot more like B v. G than most prognostications from a year before had suggested. Knapp’s analysis of the justices before the decision makes it all too clear how much the rationale of the four justices who ruled against the ACA was pulled right out of their asses.
There is a good chance we will never know why he retired at this moment, so there is not much use in arguing motivations. On the other hand the effects on all of us will be profound, so it is worth discussing the repercussions.
Kennedy is a legitimate philosophical conservative, unlike some who are anything but conservative but who have embraced that name tag for unknown reasons. (For similar situations see “Christians” and “Westboro Baptists”. ) Like many powerful conservatives, the principle that he seems to care about the most is preserving the power of financial and political elites over those of a lower social class. Even his rulings that seem to go against this make sense upon closer examination. Gay marriage is a good example. It didn’t threaten any existing elites financially. And Kennedy is not as conservative on social issues and, unlike Thomas or Scalia, didn’t seem to view it as necessary to use his position to impose his morality and religion on the country. Finally, by ruling in favor he prevented yet another party line vote on a well publicized and contentious issue, which helped to preserve the political power of a very conservative Supreme Court.
So while everyone is arguing about the effect it would have had if he waited until Jan, 2021, perhaps the most germane issue is what would occur In the unlikely event that the Dems take back the Senate. At that point they would be correct to stop all confirmation hearings unless the candidate comes from a list approved by Dems. That would eventually, one way or another, push the Court more towards protecting the rights of those not in power and of lower social standing. Again, I don’t think it is worth spending too much time on his motivation, but if you are going to spend time there, that is probably the more relevant scenario.
@Kylopod:
I’m not sure he was more liberal than Ginsburg and other Clinton appointees but, yes, he and Souter were considered failed picks by conservatives. But the fact remains that they voted according to a judicial philosophy and/or ideology rather than being reliable votes for the Republican Party.
I thought the ruling in that case outrageous but Justices come up with bizarre legal twists. This term’s decisions in the gay cake and Muslim ban cakes were, as Sotomayor rightly notes in her dissent in the latter, directly contradictory in terms of how they applied the Free Exercise Clause.
Considering that it is really the Heritage Foundation making the decision here, it seems perfectly natural and benign that Kennedy would want to retire when such a group would be more likely to make that choice. The question of how more conservative justices will shape the future and being concerned is an issue of what Conservatism has become (or always was).
@Michael Reynolds:
You are just a hateful little man.
I actually feel sorry for you.
Well, I guess Michael Tomasky was a reasonable, thoughtful commentator. TDS has taken over tho.
@James Joyner:
That’s debatable, but it’s also besides the point. The issue of partisan abuse in Bush v. Gore has to do with the five Republican-appointed justices who voted in the majority, not the four remaining ones (whether Republican-appointed or not) who voted in the dissent. If you’re going to argue that Stevens and Souter were still Republicans who were voting against their partisan interests, that doesn’t take away from the fact that the decision was an abuse of power by five Republican justices who were putting their party loyalty above their proper judicial duties.
Indeed, years later Sandra Day O’Connor expressed regret for her role in the decision. (There were reports that she was overheard on Election Night getting very upset when the media first reported Al Gore as the election winner, because she’d hoped to retire within the next four years, but she’s denied the story.) That fact doesn’t take away from the conclusion that Bush v. Gore was an abuse of power by the Court; it reinforces it.
Of course. And that helps your argument how? That only further illustrates the post hoc nature of their decision-making process.
@Kylopod:
The fact that the majority couldn’t come up with a consistent rationale was troubling but it was the right outcome. The Florida Supreme Court was trying to rewrite the rules after the election, overturning the law written by the Florida legislature—the definitive authority, according to Article I of the US Constitution—in contravention of Federal law that had been in place since the 1880s. And, yes, the fact that two Republicans dissented makes it not a party-line vote. I don’t know how it could be otherwise.
@Kylopod:
I think it illustrates the problem of having nine judges trying to make public policy. They’re constrained only by their internal philosophy and precedent, both of which are elastic.
It would be nice if we could all acknowledge that the law is whatever 5 or more Supreme Court justices say it is, nothing more, nothing less…forget judicial activism or stare decisis or textualism or originalism or the living Constitution or anything else…all of those are just justifications for judges to decide whatever the hell they want to…
@An Interested Party:
Effectively, yes. The late Justice William Brennan dubbed it “the Rule of Five,” a tongue-in-cheek play on “the Rule of Four” (the Court will take a case if four Justices vote to grant certiorari).
Well, no. It’s true that Justices who claim to adhere to a given set of principle may nonetheless veer from it, whether hypocritically or unconsciously, to reach an endstate they feel is just. But principles and philosophies often guide Justices to decline to reach their preferred outcome, whether because they think the Constitution or a statute says they can’t, because they feel bound by precedent, or whathaveou.
Everyone’s right that we don’t know, and probably will never know Kennedy’s motivation, which could range from health thru calculation to kompromat. Given McConnell he may have felt it best to resign early in Hillary’s term, and like Comey, got caught out by circumstances.
But Tomasky is right that his successor will probably destroy his legacy and it might have been prudent to wait a few months to wait out the midterms and Mueller rather than allow Trump to pick one of his own potential jurors.
Oh? That certainly didn’t seem to be the case with Bush v. Gore…
@An Interested Party:
First, that’s one case out of 80ish in one term. Second, as noted upthread, two Republican-appointed Justices sided with Gore.
Considering what happened after that decision, that was arguably the most consequential case they ever decided…
Those two Justices being nothing like any Republican-appointed Justice who came after them…
80 years is too old. The Supreme Court is not a nursing home. Clarence Thomas, 70 years old and 27 years in the court is one of the youngsters in the group.