The Good Fight

So Much For the Institutions

Kennedy’s retirement proves we can’t count on elites to constrain Trump’s worst excesses

President Donald Trump, Justice Anthony Kennedy and Neil Gorsuch make their way to the Rose Garden of the White House for Gorsuch's swearing-in ceremony  on April 10, 2017.
President Donald Trump, Justice Anthony Kennedy and Neil Gorsuch make their way to the Rose Garden of the White House for Gorsuch’s swearing-in ceremony on April 10, 2017. MANDEL NGAN/Getty Images

When he heard that Supreme Court Justice Anthony Kennedy was retiring on Wednesday, a friend in his twenties told me: “Today is the darkest political moment my generation has experienced.”

“What about the day Trump was elected?” I asked in surprise.

“This is worse,” he responded. “It’s the day Trump consolidates his power.”

My friend has a point. When Donald Trump was elected, “serious” social scientists argued that the institutions of the American Republic would constrain his power. The more historically literate among them even trotted out a quip Harry S. Truman reportedly made about Dwight D. Eisenhower: “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike—it won’t be a bit like the Army. He’ll find it very frustrating.”

As we now know, it hasn’t quite turned out like that. Though Trump’s White House certainly faced a steep learning curve in its first months—and remains deeply dysfunctional even now—the administration has gradually grown to be surprisingly effective at turning the president’s instincts into public policy. From immigration to trade, and from foreign policy to health care, the past months have brought big and worrying changes.

It is not just that the administration that is proving to be more effective than we might have hoped; it is also that the institutions meant to constrain it are proving far more pliant than we might have feared.

This is obviously true of the Republican Party. At the time of Trump’s election, smart observers debated whether party elites would continue to disdain and regularly oppose the president (as the optimists claimed) or whether Trump would prove capable of building a slate of his own candidates and gradually changing the nature of the party (as pessimists like me feared). The truth turned out to be much more radical than either the optimists or the pessimists predicted: Members of the conservative movement who had spent decades professing their commitment to balanced budgets and constitutional values proved willing to sell out their principles with astounding rapidity.

The knock-on effect in Congress has been as immediate as it has been frightening. Even a year ago, institutions like the House Intelligence Committee still seemed to be animated by a sense of bipartisan mission; it was imaginable that, if only Special Counsel Robert Mueller found sufficiently compelling evidence of wrong-doing by the president, a large number of Republican representatives and senators might vote to impeach Trump. Today, the House Intelligence Committee is openly running interference for Trump; it is very hard to believe that 67 Senators would ever vote to impeach him.

Though the overall cast of characters has not changed all that much, the Republican Party—and the Congress it controls—has essentially become an agent of full-blown Trumpism.

What this week has brought into focus is that this institutional rot now also seems to be spreading to the last bastion on which defenders of democracy thought they could count: the Supreme Court. This week, the court has taken two decisions that significantly and lastingly impede America’s standing as a liberal democracy. First, it green lit the administration’s travel ban on seven Muslim-majority countries despite ample evidence that the policy  was motivated by religious animus. As Sonia Sotomayor argued in a scorching dissent:

Ultimately, what began as a policy explicitly “calling for a total and complete shutdown of Muslims entering the United States” has since morphed into a “Proclamation” putatively based on national-security concerns. But this new window dressing cannot conceal an unassailable fact: the words of the President and his advisers create the strong perception that the Proclamation is contaminated by impermissible discriminatory animus against Islam and its followers.

Second, the Supreme Court held a Texan Congressional map to be constitutional despite ample evidence that it had been designed to dilute the voting power of the state’s minority residents—and assure the Republican Party an unfair advantage. As a result, it is even more likely that Republicans might be able to hold the House of Representatives in the coming midterm elections despite losing the popular vote. When other states follow suit in the coming months and years, as they inevitably will, the playing field between the ruling party and the opposition will become even more uneven.

The most shocking thing about both decisions is by now so familiar that it is rarely remarked upon: Rather than being a truly independent institution that is able to transcend partisan politics, the Supreme Court increasingly acts as just another staging ground for the fight between Democrats and Republicans. In fact, both of these hugely consequential decisions were taken with the narrowest possible margin and with a clear partisan split: the five judges who had been appointed by Republican presidents voted in favor, the four judges who had been appointed by Democratic presidents against.

The second most shocking thing about these decisions is that they demonstrate just how much Trump’s election has changed the prevailing political winds—and how much influence that has already had on the country’s highest court. Of all the current Supreme Court justices, Kennedy was the one who has, over the course of his tenure, proven most susceptible to the shifting tides of public opinion. Originally aligned with the court’s conservative wing, he slowly grew to be the court’s swing voter. With Barack Obama in the White House and a strong majority of Americans much more tolerant of homosexuality, he helped to legalize same-sex marriage. But now, with Donald Trump in the White House and respect for democratic institutions and the rights of minorities sinking ever lower, he has swung the other way—and acceded to two highly partisan attacks on liberal democracy.

Today’s announcement that Kennedy is retiring only consummates his abdication of responsibility. Instead of standing up for the values he so loudly professes, and staying on the Supreme Court to fight against executive overreach, Kennedy has chosen to let a deeply dangerous president and his allies steer a badly damaged ship out to sea.

Is it fair to judge an eighty-one year old man so harshly for the choice not to spend the last years of his life in a grueling job—a decision that is, after all, one of the most personal anybody could make?

Yes, it is. For these are times in which the political institutions that have so long structured the life of our nation face a virtually unprecedented moment of peril. And in times such as these, anybody who genuinely cares about protecting the Constitution should recognize a duty to do what he can to check the most outrageous excesses of the Trump administration. This is true of ordinary citizens who, as I argued at the beginning of the year, have proven comfortingly willing to recognize the abnormality of the Trump administration yet discomfortingly unwilling to disrupt the daily normality of their own lives. And it is doubly true of those men and women who, by virtue of their high office, have a special power—and duty—to contain the rot of our institutions.

The question that will likely consume us over the coming days and weeks is how the Democrats should respond to this latest political twist. Should they follow the precedent set by Mitch McConnell, and refuse to grant Trump’s nominee a hearing? Or should they take the high road, and assess the nominee by the kinds of standards—basically, a high degree of professionalism and some degree of ideological moderation—that both parties have applied as recently as a decade ago?

Both options are terrible. If Democrats follow McConnell’s precedent, they give up their claim to being consistent defenders of constitutional norms, and pave the way to an even more dysfunctional Congress. Given that Republicans have an inbuilt geographical advantage in the Senate, they would also undermine their ability to wrest back control of the Supreme Court in years to come.

But if Democrats allow Trump’s nominee to take his or her seat on the Supreme Court, this too is likely to do grave damage to liberal democracy. A year ago, Neil Gorsuch looked like the kind of justice who might protect our institutions: though he was deeply conservative, little in his record indicated that he might have sympathies for a populist assault on the rule of law or the separation of powers. And yet, he has participated in the court’s most recent assaults on religious liberties and free elections. There is no reason to assume that Trump’s next nominee, even if he or she should look reasonably sensible on paper, wouldn’t prove equally willing to follow the prevailing winds.

The longer I think about it, the more I agree with my friend: Trump has been consolidating his power for many months. As of now, it is no longer clear that any single institution in the United States will consistently prove willing to stand up to his assault on democratic institutions. Even by the horrific standards of the past two years, today is a very dark day for our country.