Anthony Kennedy is worried about American democracy.
“Perhaps we didn’t do too good a job teaching the importance of preserving democracy by an enlightened civic discourse,” said Kennedy on Friday, speaking to high-schoolers in his hometown of Sacramento, California. “In the first part of this century, we’re seeing the death and decline of democracy.”
Kennedy didn’t mention Brett Kavanaugh in this address, but it’s difficult to imagine his concerns weren’t tied to the furor over President Donald Trump’s nominee to fill his seat on the Supreme Court, especially given Kennedy’s relationship to Kavanaugh, who clerked for the former Supreme Court justice early in his career.
If Kennedy is thinking about the Kavanaugh nomination, that offers another reason to worry about its implications for our democratic discourse and institutions. But if the fight for Kavanaugh is a democracy destabilizing event, then it’s only the latest in a long series of democracy destabilizing events in the United States. As an associate justice of the United States Supreme Court, Kennedy has played a significant part in that story. From Bush v. Gore to Citizens United to Trump v. Hawaii—where the court upheld the president’s transparent Muslim travel ban—Kennedy has been a key figure in America’s democratic backsliding. And against that backdrop, Kennedy’s concern is hollow.
Kavanaugh’s nomination has put stress on an already-stressed democracy. Controversial from the start, multiple allegations of sexual assault have made his Supreme Court bid among the most toxic political conflicts in recent American memory. That toxicity increased on Thursday, after Kavanaugh’s startlingly angry testimony before the Senate Judiciary Committee. Denying the account of his accuser, Christine Blasey Ford, Kavanaugh raged against a “calculated” political attack “orchestrated” by Democrats and “left-wing opposition groups” purportedly looking for “revenge on behalf of the Clintons.”
Kavanaugh’s bullying performance had its intended effect. Republicans rallied to the Supreme Court nominee just as Democrats stood behind his accuser. Eighty-four percent of Republicans said they believed Kavanaugh, versus just 5 percent of Democrats, according to a Quinnipiac survey conducted in the days since the hearing. Likewise, 86 percent of Democrats believed Ford, versus just 10 percent of Republicans. (Independents broke 46–38 in favor of believing Ford versus Kavanaugh.)
But as much as the Kavanaugh furor is corrosive, it’s not yet a serious threat to American democracy, even as it suggests dangerously high levels of cultural bitterness and partisan mistrust. Actual threats to American democracy range from voter suppression and unaccountable “dark money” to explicit efforts to engineer “minority rule” in Washington and racialized policymaking meant to burden historically disfavored minorities. The threat is voter purges aimed at black Americans and rigid gerrymandering meant to dilute the votes of Hispanics; it’s a campaign finance regime that gives anonymous holders of accumulated wealth the power to flood elections with untraceable cash; it’s a president trying to shape the institutions of government to serve the interests of him and his family. Some of these are recurring threats to American democracy—others are novel. But during his time on the Supreme Court, Anthony Kennedy has either worsened the problem or unleashed the danger outright.
In 2010, Kennedy authored the court’s opinion in Citizens United v. Federal Election Commission, obliterating decades of campaign finance law and allowing unprecedented levels of outside spending in elections. Writing for a 5–4 majority that split the court along ideological lines, Kennedy affirmed the claimant’s view that businesses held the same free speech rights as individuals. “When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought,” wrote Kennedy.
Citizens United opened the door to “super PACs,” groups that can accept unlimited donations from individuals or corporations and spend them on behalf of candidates, provided they don’t coordinate with the actual campaigns. And although super PACs have disclosure requirements, donors have circumvented them by routing contributions through entities that don’t require disclosure, yielding a torrent of completely unaccountable money. We saw the results of this last year, when these donors threatened to close the spigot on Republican politicians if they didn’t pass their favored tax policies.
In 2013, Kennedy joined the majority on Shelby County v. Holder, invalidating a section of the Voting Rights Act requiring states and localities with a history of voting discrimination to clear new election or voting laws with the federal government. The decision didn’t preclude “preclearance” but asked lawmakers to develop a new formula for determining its scope. Congress, held by Republicans since 2015, has yet to step forward. In the meantime, conservative lawmakers in states across the country have pushed restrictive laws for voter identification, placed new limits on voter registration, and slashed ballot access by closing precincts and polling places. These policies have burdened the groups the Voting Rights Act was meant to protect: the poor, the elderly, foreign-language speakers, and people of color. In states like North Carolina, where lawmakers were found to have targeted black voters with “almost surgical precision,” that was the point.
If Citizens United has been an invaluable tool for the maintenance of entrenched wealth, Shelby County has been similarly vital for those who want to preserve a white voting majority in American politics. Republican lawmakers unwilling or unable to win blacks, Latinos, Asian Americans, and other groups have used the leeway of Shelby County to institute voter purges and sharply gerrymander their electorates on racial lines. And the Supreme Court, with Kennedy in the majority, has affirmed those moves as well. Before retiring, Kennedy voted to uphold sweeping voter purges in Ohio and racial gerrymandering in Texas.
On similar lines, Kennedy joined conservatives on the court in Trump v. Hawaii to uphold Trump’s “travel ban,” with a short concurrence urging federal officials to “adhere to constitutional guarantees” of freedom of speech and free exercise of religion, while simultaneously granting the administration power to restrict movement into the country in a way that clearly targeted a particular religion, as evidenced in part by the president’s statements of religious animus.
This gets to the most galling aspect of Kennedy’s stated concern for American democracy. In the final paragraph of his concurrence, Kennedy looked forward to the future: “An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.” He then retired, leaving Donald Trump to name his replacement—the same Trump who operates in contempt of those constitutional liberties and seeks to degrade the nation’s democratic institutions, who defines citizenship in racial terms, and seeks to remove those who fall short, from undocumented migrants to legal residents and actual American citizens.
Kennedy gave Trump, who faces criminal investigation for obstruction of justice and potentially other felonies, a chance to secure a favorable majority on the Supreme Court, one which may weigh in on that investigation. And Kennedy recommended a replacement, Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals, who proposed “temporary deferral of civil suits and criminal prosecutions and investigations” for sitting presidents in a 2009 law review article. Kennedy punctuated his brief for America’s democratic ideals by giving the president a path to legal impunity. And a Justice Kavanaugh who ruled for Trump in those circumstances would do tremendous damage to the legitimacy of the Supreme Court, as well as our democracy.
That prospect, of Kennedy’s chosen successor doing untold damage to the institution he served, would be a fitting capstone to Kennedy’s career. Eighteen years ago, Kavanaugh was working to win the White House for George W. Bush after a tight election and contested result in Florida. Kavanaugh worked on Bush’s legal team to halt a state-mandated recount and secure the crucial swing state for the Republican presidential nominee. That case went to the Supreme Court, where Kennedy joined a partisan majority of GOP nominees to end the recount and deliver the race to Bush, circumventing Florida law and the Florida Supreme Court. The court even put an asterisk over the decision, writing that “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” This was a one-off that just happened to be decided by Republican appointees for the benefit of a Republican presidential candidate.
Bush v. Gore tarnished both the new president, who only secured a sense of legitimacy in the wake of the Sept. 11 attacks, and the Supreme Court itself. The court’s conservatives appeared nakedly political, willing to abandon judicial restraint when it conflicted with factional advantage.
It’s evidence of irony in history that we see something similar in the present. In testimony challenging allegations of sexual assault, Brett Kavanaugh condemned the Democratic Party in harsh, belligerent terms, threatening retribution for the accusations. He spoke as a lifelong Republican operative, not as an impartial judge. Kavanaugh doesn’t need to rule for Trump to threaten the legitimacy of the court; at this point, his confirmation itself would spark a legitimacy crisis, as millions of Americans reject his presence on the basis of the allegations (which he addressed with misleading testimony) and his aggressive partisanship.
The line from Bush v. Gore to Brett Kavanaugh should put Anthony Kennedy’s stated concern for American democracy—his fear that it has entered a cycle of “death and decline”—into its proper context. Kennedy had 30 years on the nation’s most powerful court to defend democracy—to build equitable institutions and shape a level playing field for discourse and deliberation. He did just the opposite. His legacy is a weakened democracy and a damaged Supreme Court.
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