Commentary

National courts expert: Mourning may be apt, but Kennedy was a lousy Supreme Court justice

Anthony Kennedy

Caring and thinking people across America are profoundly concerned this morning about U.S. Supreme Court Justice Anthony Kennedy’s announcement of his retirement yesterday — and for good reason. Kennedy has provided the crucial fifth vote on several basic matters of human rights and the notion that he will now be replaced by another Trump appointee like the abominable Neil Gorsuch, who might will sit on the court till mid-century, is certainly grounds for deep angst.

All that said, it’s important not to get too carried away with the praise for Kennedy. As national Supreme Court expert Ian Millhiser reminded us yesterday afternoon, Kennedy was, on the whole, a big negative during his years on the Court. This is from “Justice Kennedy deserves this nasty, unflinching sendoff: Anthony Kennedy was a horrible justice, and his last decision was his worst”:

“I want to establish these facts up front as I begin my obituary of Justice Anthony Kennedy’s judicial career, because what follows will not be especially charitable. Justice Kennedy was a Cadillac’s intellect in a Lamborghini’s job. His writing ranged from needlessly flowery to completely incoherent. And, while his views sometimes placed him to the left of men like Scalia and Bork, his ‘liberal’ opinions were frequently his most incomprehensible.

Kennedy could have been a perfectly adequate lower court judge, but he was in over his head at the Supreme Court. And, for that reason, his most celebrated opinions will be very easy to dismantle.”

Millhiser then goes on to remind us that not only did Kennedy author and join the majority in a bevy of terrible rulings like Citizens United, but that even when he was on the right side (as in decisions regarding LGBT rights)  his writing and reasoning were extremely weak:

“When Kennedy cares about an issue, he can demand that the law remake itself overnight in his image. Just think about his vote to repeal the entire Affordable Care Act. Or his Citizens United opinion which, as the New Yorker’s Jeffrey Toobin reported, came about after Kennedy rejected Chief Justice Roberts’ incremental, more modest approach to the case.

Yet, when Kennedy cast his lot with the Court’s liberals, he was typically far more parsimonious. Casey purported to preserve Roe, for example, but it stripped abortion of its status as a fundamental right and applied a vague “undue burden” standard that gave very little guidance to lower court judges regarding when an abortion restriction violated the Constitution. Many judges who oppose Roe took this vague standard as a license to unwind the right to an abortion.”

Millhiser says Kennedy’s weak, incremental approach to basic human rights were especially notable in his gay rights opinions:

“And even when Kennedy did embrace marriage equality in Obergefell v. Hodges, he tiptoed right up to the line of holding that discrimination against gay, lesbian, and bisexual Americans is subject to ‘heightened scrutiny’ under the Constitution, without ever writing those magic words. At every stage of the journey from Romer to Obergefell, Kennedy used his decisions to dole out just a little bit?—?but never too much —more equality to sexual minorities….

When billionaires wanted to shape elections, there was no mountain high enough and no valley low enough to keep Justice Kennedy from giving them what they desired. But when same-sex couples came to Kennedy seeking equal rights, Kennedy told them to take a number.”

Still, despite all of his large flaws, his departure is a tragedy according to Milhiser:

“Nevertheless, for all of Kennedy’s shortcomings?—?his naive view of money in politics and his disregard for voting rights, his crusade against the Affordable Care Act, his expansive conservatism and his miserly liberalism?—?America will be much, much worse off with Kennedy off the Court.

The future now belongs to men such as Neil Gorsuch. It belongs to men eager to inject even more money into American politics. It belongs to men who will tear down reproductive freedom, give the Christian right broad immunity from the law, protect voter suppression, and even allow judges to sell themselves to campaign donors.

Kennedy made many bad decisions on the Supreme Court, but his single worst decision was to give his seat up to Donald Trump. Anthony Kennedy spent his career toying with liberals’ hopes for the future, but at least he gave us hope. His replacement, like Gorsuch, is likely to make even Scalia look like a moderate.”

Heaven help us.

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