It was a jarring last week of the Supreme Court’s 2017 term. On Monday, the Court reversed lower court findings that Texas’s legislature had racially gerrymandered its state legislative districts. On Tuesday, the Court struck down California regulations intended to regulate the disinformation that so-called “crisis pregnancy centers” give to women seeking an abortion and upheld President Trump’s travel ban as a facially neutral immigration regulation rather than the blatant religious discrimination it plainly was. And on Wednesday, Justice Alito finally found five votes for his six-year-long campaign against public sector unions, as the Court effectively enshrined “right to work” legislation into the constitution, applicable to all fifty states. Each of these decisions was by a 5-4 vote, with Justice Gorsuch in the majority, contentedly in the background supporting decisions of his longer-tenured colleagues. Each decision, in its own way, ignored settled precedent, exposed blatant contradictions with the majority’s prior views, and set back democracy and civil rights decades.
But it was Justice Anthony Kennedy’s retirement later that Wednesday that proved to be the gut punch that underscored just how deeply damaging the 2014 and 2016 elections were. In 2014, the GOP essentially ran a campaign against Ebola-infected ISIS terrorists crossing into Texas through the southern border, and then used the Senate majority they built from that disingenuous messaging to block President Obama from placing a reasonable, consensus jurist on the Supreme Court. And in 2016, a minority of voters, elevated through the electoral college, allowed an authoritarian demagogue to fill that seat and any others that might arise. For all his unorthodoxies, President Trump surely knows that fidelity to the Federalist Society is his most important political consideration. As a result, Justice Kennedy’s withdrawal from public life surely means the medium-term end of a Supreme Court able to project the best ideals of our founding fathers.
I say this not because Justice Kennedy was the legal titan or protector of individual liberty that he sees in himself. Certainly, Justice Kennedy had a few visionary doctrines and exemplary moments. His wide-ranging stands against excessive punishment in its many forms come to mind. And there is something to be said for a careful judge who seeks to preserve consensus on difficult issues such as abortion and affirmative action. But ultimately, Justice Kennedy’s high standing among legally-focused liberals over the past decade has been mistaken, and a failing in much the same way that democratic advancement has stalled over the same period—sudden, thrilling progress on gay rights masking the vicious consolidation of conservative political power that would do far more harm than that narrow civil rights victory could justify.
No, Justice Kennedy’s retirement was a demoralizing development not because of his legacy, but solely because Republicans will now get a fifth staunch conservative on the Court, and the fourth doctrinaire conservative, joining Justices Thomas, Alito, and Gorsuch. Remember judicial activism? That framing from the Bush years that liberals wanted politicians in robes? Well, now we will see it in its true, reactionary form. With the First Amendment used as a weapon for corporations and religious majorities rather than a shield for the vulnerable. With the Equal Protection Clause ensuring enhanced protection for the politically powerful, rather than as a fundamental protection for the victims of our national struggle against racism. As Justice Kagan put it in her dissent in Janus, the union fees case: “the majority has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy…The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance.”
We saw hints of that future this week as a conservative majority ran roughshod over longstanding, common sense protections for public sector unions which had already staked the right balance with individual expression. We saw it in an aggressive court that struck down government compelled truthful warnings regarding public health even as it reaffirmed its prior approval of government compelled speech attempting to dissuade women from exercising their constitutional right to have an abortion. Most upsettingly, we saw it in a five-member bloc that closed its eyes and ears to patent religious discrimination from the man holding the highest office in the land, just weeks after ascribing constitutional significance to the offhand anti-religious comments from a low-level state commissioner. Justice Kennedy wrote two concurring opinions this week, one declaring his powerlessness in the face of executive action and the other broadly condemning creeping authoritarianism. Unfortunately, his opinion upholding the travel ban concerned the former, while his vituperative assault on California regulations requiring truthful disclosure about abortion proclaimed the latter.
As I wrote earlier this year, the Court’s decision in the Trump travel ban case would test whether the Court viewed its role as a governmental branch able only to further entrench those already possessing political power. The First Amendment case was clear as day. The ban’s challengers needed only to show that a reasonable observer could view the president’s national security executive order as but a façade for racial authoritarianism. And I can’t say it often enough: given Trump’s hundreds of anti-Muslim campaign and presidential proclamations, it is simply not credible to suggest that the ban was enacted for any purpose other than harming Muslims. Chief Justice Roberts writing for the majority threw breadcrumbs to our pluralistic tradition by formally overruling the case that upheld Japanese internment. Now, we can all look forward to the day fifty years from now when the Court rejects this current opinion as “gravely wrong the day it was decided,” long after its saying so could make any measurable difference.
Our judiciary was meant for better things than to further insulate the politically powerful from democratic change. But here, too, is another way that November 8, 2016 fundamentally changed the course of American democracy. We voted for retrenchment, deceit, and the destruction of laws, norms, and ethics. Why would this debasement of our political system not exact itself on our courts as well? The effects of this week’s decisions, from the official to the personal, will be felt for decades. The only answer is in overwhelming activism and energy at the ballot box.