Dreaming of an Empty Seat

Anthony Kennedy’s possible retirement from the Supreme Court is the only thing keeping Republicans’ hopes alive.

Associate Justice Anthony Kennedy is seen during a ceremony in the Rose Garden at the White House on April 10 in Washington.
Associate Justice Anthony Kennedy is seen during a ceremony in the Rose Garden at the White House on April 10 in Washington.
Eric Thayer/Getty Images

“Even if people don’t like me, they have to vote for me. They have no choice,” Donald Trump said at a campaign stop in Virginia on Aug. 2, 2016. “Even if you can’t stand Donald Trump, you think Donald Trump is the worst, you’re going to vote for me. You know why? Justices of the Supreme Court.”

That statement proved prophetic. According to exit poll data, 21 percent of voters in the 2016 election felt that “appointments to the Supreme Court were the most important factor in deciding their vote.” Perhaps unsurprisingly, those voters favored Trump by a margin of 56 to 41. The thrice-married accused sexual harasser and serial philanderer who doesn’t go to church also scored 8 in 10 self-identified white, born-again/evangelical Christians, based on his promise to appoint someone who would reverse Roe v. Wade and protect religious liberties. That was a higher percentage of religious voters than George W. Bush garnered in 2004, despite the fact that Bush is himself an evangelical and Trump is, well, Trump.

Trump rewarded those voters by appointing Neil Gorsuch to succeed Supreme Court Justice Antonin Scalia. And as we never stop discovering, for an enormous quantity of the faithful, that reward is enough to excuse the chaos, existential danger, and festering corruption that embodies the Trump administration. The notion that flipping the Supreme Court is the only thing that counts anymore in America has become, quite literally an article of faith. A recent New York Times article about evangelical women cooling on the president quoted a Trump supporter voicing precisely this view: “The women in suburban Dallas all conceded they have cringed sometimes at Mr. Trump, citing his pettiness, impulsiveness, profanity and name calling. Still, they defended him because he delivered on issues they cared most about, such as the appointment of Justice Neil M. Gorsuch to the Supreme Court. ‘Certainly we are all embarrassed, but for the most part he represents what we stand for,’ said [Linda] Leonhart, who is active in the women’s ministry at her church.”

A nation that is surprised by nothing, shocked by nothing, and moved by nothing has turned a Supreme Court seat into something holy. It is therefore no surprise that “But Gorsuch” has slowly morphed to “But Kennedy.” And every time Trump falters or implodes, someone conveniently floats a story reminding the faithful that Anthony Kennedy’s seat is likely (or possibly) (or probably) going to be up for grabs this summer, and that this alone justifies supporting Trump in all things, crimes, bribes, and corruption notwithstanding.

There is almost a direct causal nexus between hideous Trump revelations and the wishcasting journalism of “But Kennedy.” And so here we go again: On Friday, extremely vulnerable Nevada Republican Sen. Dean Heller told a closed-door meeting in Las Vegas that “Kennedy is going to retire around sometime early summer.” In the very next sentence, Heller proceeded to explain his need to make that statement: “Which I’m hoping will get our base a little motivated because right now they’re not very motivated. But I think a new Supreme Court justice will get them motivated.” Heller has no special knowledge or insight. He’s just wishing upon the Kennedy star. Even so, his comments will serve to bolster the base. At this point, these wishes may be the only thing bolstering the base.

Kennedy isn’t just any justice. He is The Justice, the fulcrum of pretty much everything we do and what we are. In the last few decades, he’s singlehandedly determined the future of marriage equality, affirmative action, abortion rights, campaign finance, and gerrymanders, to name just a few areas in which he’s served as the deciding vote. Kennedy, who is 81, talked openly last summer about unspecified hopes of retirement. He has also already hired clerks for the 2018–19 term and has said he worries about election-year retirements, which tend to politicize the courts. So anybody who says they know something likely does not.

As complicated as Kennedy’s retirement decision would ordinarily be, it’s doubly so in the Trump era for more reasons than you can imagine. Kennedy must be mindful of the threat to his legacy in areas that range from gay rights to reproductive freedom. And given his vaunted regard for civility, decorum, respectful discourse and sobriety in public life, he must now ponder watching his seat filled by a president who has coarsened and corroded public life in ways that are almost beyond our ability to comprehend, much less reverse. Then again, we learned last summer, by way of a hot mic, that Kennedy’s son seems to be pals with one of Trump’s own kids.

In other words, Kennedy, who prides himself on being inscrutable and broody, has a lot to think about. And the fact that he’s become the most watched public servant in America must be both terrifying and wonderful to him.

Trump’s selection of Gorsuch was reportedly in part an effort to assure Kennedy he would be replaced by a sober, respectful jurist as opposed to, say, Omarosa. But that move may not have worked as intended. As the New York Times’ Adam Liptak has observed, “In the few divided cases in which Justices Kennedy and Gorsuch participated in the court’s last term, they agreed just 38 percent of the time. By contrast, Justice Gorsuch agreed with Justice Clarence Thomas, the court’s most conservative member, 100 percent of the time.” Gorsuch isn’t Kennedy 2.0, and while Trump promises to replace him with one of several relatively sane jurists, Trump’s promises continue to be made of sparkles and eyelashes. Kennedy would not be wrong to worry.

Kennedy, too, is mulling his departure at a time when anyone in government who isn’t mulling a departure isn’t doing her job right. But Kennedy’s thinking—over and above the thorny questions of his own doctrinal legacy, his responsibility in the Trump era, and his longstanding dedication to the rule of law—must be immensely confounded by one other thing: He is the most important man in the only functioning branch of government left in America. At a moment when every other “adult in the room” is either colluding or being fired, he is, by dint of lifetime tenure, pretty much the only bulletproof adult left in America. Justice Kennedy takes his adulthood very seriously. And unless he believes there are abundant stores of serious people that Trump has secretly held in reserve, that cannot be a trivial concern for him.

In some strange way, it is fitting that at a time in which public opinion around the Supreme Court toggles between magical and mystical—with liberals imbuing Kennedy’s seat with fading hope and conservatives reducing it to sacred ground—Justice Kennedy has become the locus of everyone’s attention. The fight over the soul of the Supreme Court is suddenly the most important battle in America. That the entire matter is in the hands of just one man is both terrifying and fitting. And that the man is Anthony Kennedy, the sphinx, decider, and last vestige of an ideological center? Well, that just borders on the biblical.

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Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.