Anthony Kennedy’s legacy will be, quite simply, as one of the most critical enablers of Donald Trump and his increasingly white nationalist and anti-democratic Republican Party:
Of course, as he demonstrated particularly forcefully this term, Kennedy’s liberal votes have always been an aberration; he’s a reliable conservative vote on most issues. The even larger significance of Kennedy’s retirement is the extent to which it entrenches a conservative majority on the court, which will have far-reaching effects on both American politics and the future of the court.
Justice Clarence Thomas, still only 70, is the oldest Republican justice remaining on the court. The other four will be on the court for a long time yet barring force majeure. And should Trump be able to replace the 79-year-old Stephen Breyer or 85-year-old Ruth Bader Ginsburg, Republicans would have a hammerlock on the Supreme Court for at least a generation, even though the coming generations are more liberal on issues like same sex marriage and abortion than the ones currently in control.
What’s particularly disturbing about this is that Republicans have gotten its firm hold on the Court despite lacking a popular mandate. The Republican Party has lost the popular vote in 6 out of 7 presidential elections, and is relying more and more on the race-baiting of Donald Trump and his allies to bring supporters to the polls because its domestic agenda is highly unpopular. The party is also relying increasingly on vote suppression of non-conservative racial minority groups rather than attracting voters to stay in power, most recently with the assistance of a Supreme Court that is at war with the Voting Rights Act and unwilling to overrule even the most egregious partisan gerrymanders.
This has the possibility to create a constitutional crisis. If the next Democratic Congress is prevented from enacting much of its agenda by a partisan Supreme court, this may lead to court-packing or other serious retaliation against the judicial branch. By handing a president not chosen by the people a second Supreme Court nomination, Anthony Kennedy’s ultimate legacy may be the destruction of the court as we know it.
As Paul says, this is a major democratic crisis. I would like to re-up this:
But that act of legal and political grand larceny couldn’t have been completed if the 2016 presidential election hadn’t been stolen from Hillary Clinton by a combination of the absurdly anti-democratic nature of the electoral college (Clinton got nearly three million more votes than Trump), the willingness of various members of the Trump campaign, including quite possibly Trump himself, to collude with America’s enemy Vladimir Putin to throw the election to Putin’s preferred candidate, the reckless narcissism of third party candidate Jill Stein, and last but far from least, the mind-boggling incompetence shading into malevolence of the legacy media, which decided to treat Hillary Clinton’s email protocol practices as a vastly more significant story than the treasonous behavior of the Trump campaign.
If you consider yourself part of the left, and you thought the most critical priority to discuss in 2016 was inside-baseball gossip from John Podesta’s inbox, I don’t want to hear about your Supreme Court thoughts now. And that goes double for prominent journalists still arguing after the fact that Republican elites would stand up to Donald Trump.