Anthony Kennedy's Choice

The Supreme Court’s conservative swing vote faces a fateful decision.

Carlos Barria / Reuters

Imagine if you will: You have worked for the government for 30 years. You believe in America, you believe in law, you believe in the majesty of the Constitution. You have served your vision  both in good times and bad.

Your name is Anthony Kennedy.

Now it’s suggested you should step aside and let someone else take over. Someone appointed by President Donald Trump.

What do you do?

I have no inside sources at the U.S. Supreme Court. But I, like you, have heard the rumors swirling that Kennedy, the swing justice of the current court, may be stepping down in June.

Kennedy is 80 years old. He has served on the Supreme Court since 1988. He has, for good or ill, written his name boldly into the history of the court and of the Constitution—groundbreaking opinions on equality for gay men and lesbians will be his legacy, along with an enormous expansion of First Amendment rights in areas ranging from religious freedom to campaign finance. His votes in cases on abortion and affirmative action have steered the court on a moderate path in the thicket of extremism.

He did not spend his life in Washington. Sacramento was his home, and the life of a small-town sole practitioner was his career, until President Ford named him to the Ninth Circuit. He did not come to the court through service to a president; he did not seek the seat; Ronald Reagan came to him and asked him to take it because Reagan was in a political jam after two failed nominees. He is no president’s creature.

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?