That might be even more pronounced inside the courtroom. Kennedy hasn’t been a criminal-justice crusader in court decisions, often sparring with liberal colleagues on the use of the Eighth Amendment banning cruel and unusual punishments, and outlawing excessive bail. But in the past decade, Kennedy has bucked his conservative colleagues, even authoring influential decisions in concert with the liberal justices on prison reform and the death penalty. The Eighth Amendment has been invoked often by Kennedy and the four liberal justices as a legal weapon in the nation’s highest court in order to curb the most draconian impulses of the criminal-justice system. Without Kennedy, it’s a pretty safe that that won’t happen again any time soon.
The upshot of Kennedy’s exit is that it looks to firmly solidify the disposition of the Court, even as it faces a slate of challenges that could upend civil-rights protections for minorities that have functioned as law for decades. Chief Justice Roberts has been a leader in a multi-front war against the Voting Rights Act that has been at the forefront of conservative intellectualism for years. Kennedy wasn’t a common foil in that project, but his legal writing and focus on statutory language have given voter-rights activists a pathway to the Court, and have been much less extremist than the opinions of Alito, Thomas, and Gorsuch.
With that conservative movement still coordinating a mass of gerrymandering, voter-ID, and suppression cases that will come before the Court in the upcoming years, it’s possible that Kennedy’s retirement could hasten what appears to be the imminent collapse of much of the federal enforcement apparatus. The announcement makes Sotomayor’s warning that under recent court decisions, minorities will have “to be even more proactive and vigilant in holding their States accountable,” even more prescient.
But across different domains of civil rights and racial justice, Kennedy probably won’t be replaced by a justice content to remain an anonymous face of a newly solidified conservative majority. Like Gorsuch, it’s likely that Trump’s second Supreme Court pick will be a Trumpian bomb-thrower, a radical who would rather see the Voting Rights Act, criminal-justice reform, and affirmative action demolished rather than slowly denuded over time.
If Trump—a president who has explicitly endorsed police brutality, who has harbored incoherent fantasies of mass fraudulent voting, and for whom the Supreme Court just upheld a travel ban clearly rooted in anti-Muslim sentiment—picks a candidate remotely like himself in either temperament or worldview, the emergent civil-rights threat is not that said candidate will necessarily join Roberts in his long-running campaign for a post-racial national order, but that the replacement will create with Thomas and Gorsuch an insurgency within the Court. If their jurisprudence is the model, anything is possible. Anything, that is, except the continuation of the civil-rights era, which now seems all but finished.