The end of the Supreme Court term brought a flurry of dispiriting decisions, from the justices’ failure to seize the opportunity to put some limit on extreme partisan gerrymandering by politicians, to their unwillingness to acknowledge the glaring bigotry behind the president’s Muslim ban. Justice Anthony Kennedy, who announced his retirement this week, was on the wrong side in every case, ending a 31-year tenure on the Court with a whimper.
With Kennedy’s retirement, the prospects for an end to conservative dominance on the Supreme Court – now in its fourth decade – seem remote at best. President Trump has the opportunity to fill that vacancy with a younger, more ideologically conservative jurist. In a rally Wednesday night, he pledged, “We have to pick one that’s going to be there for 40 years, 45 years.”
Of course, replacing a very conservative justice with an even more conservative one won’t change the outcome in most cases. Kennedy may have set himself apart through the moderating role he played on a few social issues – most notably affirmative action, reproductive freedom and the rights of LGBT people. Those cases secured a distinctive legacy. But in so many decisions that mattered, decided by the narrowest of margins, Kennedy marched in lockstep with the Court’s other Republican appointees. He was the deciding vote in some of the worst rulings of our age. And our democracy is the weaker for it.
Kennedy was one of five Republican appointees in Bush v. Gore who intervened in a presidential election, on a dubious legal theory, to hand victory to George W. Bush, essentially disenfranchising thousands of Florida voters. He wrote the opinion in Citizens United that gave corporations the right to spend unlimited sums in elections, ushering in today’s dystopic world of dark money and super PACs. And he signed on to the ruling in Shelby County, which eviscerated the Voting Rights Act’s most powerful protection against this country’s epidemic of racially motivated voter suppression on the glib theory that racism in the South is more or less a thing of the past.
So let’s not be deluded: on many if not most issues, the president would be hard pressed to find a more reliably conservative vote than Anthony Kennedy’s.
And yet, it’s hard not to feel a sense of despair. Our nation’s democratic institutions are all in the hands of a minority faction pushing a radical and unpopular agenda. Their victory was made possible by the distorted democracy Kennedy and his cohort made possible – a democracy where partisan legislators are free to rejigger legislative districts to fence out the other side, a democracy where the interests of big money donors crowd out all others, a democracy where lawmakers barely disguise their glee as they enact restrictions on voting meant to shrink the electorate. With a firmer hold on the judiciary, their power will be that much harder to break.
But it’s important to remember that nine justices were never going to save us from the current crisis engulfing our democracy. Throughout our history, they seldom have. The justices did not step up during the moral crisis of slavery. They did nothing to prevent the South’s odious Jim Crow regime from taking root. And for decades, they blocked progressive efforts to address the great social crises of the Gilded Age and the Depression.
Whenever the courts have gotten in the way of needed change, Americans have had to rise up to take their country back through popular mobilization and democratic action. The abolitionists and Radical Republicans led a moral movement that changed the Constitution, ending slavery and extending citizenship to African Americans. The heroes of the civil rights movement toiled for decades to dismantle Jim Crow, prodding Congress and the courts to finally act. And from the Progressive Era to the New Deal, social movements modernized our national charter – democratizing the Senate, instituting the income tax, extending the vote to women – and leveraged government as a force for social change.
When the current darkness lifts, as it will, America will be ready for a new era of reform. But it won’t be led by the courts.