I have on occasion praised Kennedy for his humanity, and on others berated him for short-sightedness. But at no time have I—at no time has anyone I know—ever questioned his devotion to America or his true allegiance to the Constitution.
America and its Constitution are in trouble now. The president has flouted the law, and, when courts have called him to account, has ridiculed and even threatened judges who defied his will. Again this week, the administration has stood before lower-court judges and baldly told them that they have no authority to question the clumsy words of the administration’s two travel bans targeting those who would come to the United States from several Muslim-majority countries.
Meanwhile, there is an investigation into possible collusion between Trump associates and an American adversary, Russia. And the president has fired the director of the Federal Bureau of Investigation. Trump had vocally welcomed James Comey’s clumsy intervention in the election—but now, as the Russia probe heats up, he is shocked! shocked! that the director had affected the political campaign.
At the most basic level, I wonder whether the public immolation of Comey has switched some wavering votes on the Fourth and Ninth Circuits, where judges are being urged to approve the travel ban because the president gives his word that his motives are pure.
And I wonder: What does Kennedy think?
No matter what others may say, Kennedy must be thrilled by the appointment of Neil Gorsuch, a former clerk and protégé, to the seat vacated by the death of Antonin Scalia. And even though Gorsuch is a hard-right conservative, his appointment is one of the few sane acts the administration has taken.
But elsewhere, Trump has made a hideous mess in areas that will, sooner rather than later, come before the court. Its travel ban targeting several majority-Muslim countries; the “sanctuary cities” order punishing cities that don’t assist the federal government in deporting undocumented immigrants; abrupt turnabouts on enforcing transgender rights and overseeing police violence—these will be cases next term, and the stakes will be high.
And beyond that, Kennedy knows that it was the Supreme Court that finally forced Richard Nixon to turn over the evidence that forced his resignation. And he can see that, after less than four months, this administration is shutting down any independent oversight regarding Russia and the Trump campaign.
A president who will fire an FBI director while the FBI is investigating his campaign, and who has shown no understanding of judicial independence—what would he do with the gift of Kennedy’s seat? Might he not choose a crony, might he not disrespect the independence of the Supreme Court, might he not even suck the court into the swirl of scandal?
No one could criticize Anthony Kennedy for choosing, after a storied career, from wanting to lay his burden down. He has served the nation well according to his lights.
But what will happen after him?