A day after a conservative trifecta of Supreme Court rulings – on abortion rights, labor union dues, and Trump’s Muslim ban – we have the disheartening news that Justice Anthony Kennedy is retiring from the Court. A principled centrist widely considered the swing vote (a label he detested) on an ideologically divided court, he was usually on the humanistic side of issues that mattered most, in rulings, among others, that limited the death penalty, preserved due process rights for Guantanamo detainees, and perhaps most famously, established the Constitutional right of gay persons to marry.
Now, as of the end of next month, he will be gone from the Court, and the conservative abduction of that body that began with Republicans’ cynical unwillingness to even hold hearings on Barack Obama’s nomination of Merrick Garland, and the post-election installation of Neil Gorsuch in his stead, will be complete.
Does Kennedy’s departure really matter to a Supreme Court already cleanly divided along ideological lines and in which the liberal wing was already in the dissenting minority more often than not? Yes, it matters. The Court’s resident moderate, the last vestige of an era when the Court at least affected an apolitical, non-ideological mien, is gone. The usually sober-sided Supreme Court journalist Jeffrey Toobin promptly tweeted, “Abortion will be illegal in 20 states in eighteen months.” And it’s entirely possible that the redoubtable Ruth Bader Ginsberg, who is even older than Kennedy, won’t last until the next presidential election, ensuring that even if Trump is dumped in 2020 as so many of us fervently hope and expect, his stamp and that of the right-wing legal intelligentsia for whom he is a willing if ignorant vessel will remain imprinted on the Court for decades into the future. My grandchildren will live most of their lives with the social and economic consequences.
This lasting, fateful change to the ideological makeup of the highest court in the land was the one consequence of Trump’s election that many of us feared most. But that doesn’t make it any less heartbreaking now that it is coming to pass.