Update, June 27, 2018, 2:17 p.m. EDT: On Wednesday Justice Anthony Kennedy announced his decision to retire, effective July 31, following the end of the Supreme Court’s term.
Progressives and moderates take note: Justice Anthony Kennedy’s vote is no longer in play.
On Tuesday, Kennedy sided with the Supreme Court’s conservative majority in upholding Donald Trump’s travel ban and striking down California’s disclosure requirements for crisis pregnancy centers. The day before, he voted to uphold the bulk of Texas’ racial gerrymander. Earlier in June, he voted to let Ohio purge voters from the rolls for infrequent voting and to punt a challenge to partisan gerrymandering. On Wednesday, he is all but certain to hobble public sector unions in a sweeping decision that will affect millions of workers in 22 states. There have been 13 5–4 decisions so far this term that have pitted the conservative justices against the liberals. Kennedy went with the conservatives all 13 times.
In the Trump era, the Supreme Court was supposed to be the grown-up in the room, and Kennedy was supposed to be the grown-up in the room at SCOTUS. But this term, the justice has abdicated that role, alternately authorizing Trump’s lawlessness and refusing to make up his mind. Indeed, we seem to be living in a counterprogrammed reality show where, in a respite from the Law of Inside Trump’s Head, we enjoy brief visits to the Law of Inside Anthony Kennedy’s Conscience. Neither is a particularly nice place to be right now. The result is a slew of disastrous decisions that will empower Trump and his enablers to escalate their assault on American democracy.
On some level, Kennedy knows what he’s doing. In Trump v. Hawaii, the travel ban case, the justice penned a brief concurrence in which he almost seemed to apologize for his vote. “There are numerous instances in which the statements and actions of government officials are not subject to judicial scrutiny or intervention,” Kennedy wrote. “That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects.” The fact that “an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.” Shorter Kennedy: Trump did a bunch of bad things, but what do you expect me to do about it?
But who said the president’s decision to exclude millions of Muslims from the U.S. is “free from judicial scrutiny”? The Supreme Court just did, in a decision that Kennedy enabled. It’s certainly true that, as the justice wrote, the Constitution protects the “freedom of belief and expression” for all. On Tuesday, however, with Kennedy’s critical assist, the court ducked its duty to enforce that promise, authorizing the president to punish those who believe differently than he does.
The justice did not have to acquiesce to Trump’s bigotry. Over the past year and a half, many of his colleagues on the federal bench refused to do so. The arc of the Trump travel ban, from its initial rollout in January 2017 until this week, has been a story of reasoned judicial reaction to abhorrent, pointless xenophobia, religious animus, and racist hate. One judge after another, regardless of politics or party, stood up to the president’s cruelest impulses and held the administration to the confines of the rule of law.
But now the Supreme Court has taken itself out of consideration for the role of last adult in our constitutional system. Kennedy likes to play the part of the wise centrist who can pierce through the intractable ideological fracture to find the “dignity” and “civility” at the heart of this nation. Somehow, this lofty optimism led him to join an opinion taking the president at his word when he promised that his executive order wasn’t enacted as the all-out “shutdown on Muslims” he pledged on the campaign trail. That president is to be believed because, as Chief Justice John Roberts wrote in his majority opinion, he provided a “facially legitimate and bona fide” reason for his actions. Trump’s lawyers dressed up his bigotry in civility, and five Republican-appointed justices felt compelled to rubber-stamp the result.
Kennedy wants you to know that if Trump does anything really bad—like, perhaps, imprison children under a pretextual policy of deterrence in the interest of national security—the court will be on hand to help out. He ends his concurrence in Trump v. Hawaii with the assurance that all is not lost: “An anxious world must know that our government remains committed always to the liberties the Constitution seeks to preserve and protect.” No doubt Angela Merkel is hugely relieved. But if the family separation crisis has proved anything, it’s that two branches of our government cannot be trusted to safeguard those liberties. That job fell to the courts and, eventually, to Kennedy, who didn’t want to see what’s been plain to so many others both on and off the bench—that a promised Muslim ban, crafted to evade judicial review and proffered as part of a years-long anti-Muslim crusade, is in fact a Muslim ban.
It’s not as if the justice is incapable of striking down laws he loathes. On Tuesday, it was Kennedy who also penned a concurrence in NIFLA v. Becerra, a 5–4 decision striking down California’s disclosure requirements for crisis pregnancy centers. The California law obligated CPCs to provide information guiding patients toward the full spectrum of reproductive care, including birth control and abortion. It also compelled unlicensed CPCs to disclose their lack of licenses. In his majority opinion, Justice Clarence Thomas struck down both parts of the legislation as a violation of the First Amendment.
Kennedy—joined by Roberts, as well as Justices Samuel Alito and Neil Gorsuch—wrote separately to drive the culture-war knife in further. The California Legislature, he wrote, “included in its official history the congratulatory statement that the Act was part of California’s legacy of ‘forward thinking.’ ” But, he added, “it is not forward thinking to force individuals” to profess “an ideological point of view” they oppose. He continued:
It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.
For those keeping score at home: California? Comparable to “relentless authoritarian regimes.” Trump? A normal president owed “substantial deference” in his quest to keep Muslims out of the country. Consider that both of these cases turned in some sense on the relationship between truth and law. Kennedy, a lifelong lover of words and language, must understand that he just cast a fifth vote for the proposition that requiring truthful language at abortion clinics is an authoritarian intrusion into liberty, while believing the president’s lawyers when they say he no longer hates Muslims is the duty of the court. Trump and his enablers strive to disaggregate truth and law. That effort has now been blessed by a judicial branch that claims true speech is coercive and lies don’t matter.
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