The theory, for the record, goes something like this: Justin Kennedy worked at Deutsche Bank. Deutsche Bank was the only Wall Street firm willing to lend money to Donald Trump. In 2017, Deutsche Bank was fined $630 million for its involvement in a Russian money-laundering scheme. After his first address to Congress, President Trump told Kennedy, “Say hello to your boy,” to which the justice replied, “Your kids have been very nice to him.” Now, the court’s swing justice is retiring, giving President Trump the chance to cement a far-right court for a generation.
The implication is that Kennedy was coerced, via bribery, blackmail or something similarly sinister, into giving up his seat before the election. But the line between cause and effect remains hazy. In a tweet that accumulated more than 35,000 likes, @ProudResister summed it up as follows: “THAT’S WAY TOO MANY ‘COINCIDENCES.’ ”
There are, it must be said, a few problems with this all-caps logic. First, coincidence does not equal conspiracy. Democrats and progressives have long stood for science, facts and rational argument. Abandoning a commitment to the truth isn’t beating Trump at his own game; it’s surrendering the field. Second, you don’t need a tortured rationale to explain Kennedy’s actions. He’s a conservative. At 82 years old, he’s ready to retire, and he’d rather be replaced by another Neil M. Gorsuch than another Sonia Sotomayor.
But there’s a third and far more important reason to look past the convoluted speculation around Kennedy and his son Justin. It distracts us from a relationship that is legal but outrageous, nonetheless.
The existence of a personal connection between a conservative Supreme Court justice and a real estate billionaire turned president seems to shock some political observers. It shouldn’t. Of course the Trumps and Kennedys know each other: Both families belong to the most exclusive circle of America’s elite. This upper-upper crust has members from across the country, but it functions as a kind of a gated community, one in which personal and professional relationships inevitably intertwine. America’s super-elite sends its kids to the same schools. They bump into each other at Davos or Aspen or the Alfalfa Club in Washington. They socialize. They do business. They donate. They raise money. They take one another’s calls.
And, increasingly, they live in a world apart from the vast majority of citizens. American social mobility is low and in decline. Combined, the billionaires on the Forbes 400 now control more wealth than 204 million of their fellow Americans. Recessions that cripple middle-class families for years pass by in months for those at the very top. And, thanks to the gutting of the campaign finance system, the once-blurry line between wealth and power has been almost completely erased.
When Trump told Kennedy, “Say hello to your boy,” he probably wasn’t issuing a veiled threat, as the conspiratorially minded might suggest. But he was delivering a coded message all the same, a kind of identity politics for the privileged few.
You can trust me. I’m one of us.
Apparently the court’s swing justice was swayed. In the view of many Americans, myself included, Trump clearly poses an existential threat to the rule of law. But Kennedy looked past the authoritarian statements, the vulgar insults and the attacks on due process. He extended the president the benefit of the doubt — a leap of faith no doubt made easier because he was dealing with his son’s friends’ dad.
This is the scandalous reality revealed by the revelations surrounding Justin Kennedy’s Trump ties — an elite increasingly cloistered not just from the poor but also from America as a whole. America’s super-rich and super-powerful are losing touch with the middle class and the professional class, with black and brown communities, with immigrants seeking refuge, and with citizens using public services. Their bubbled reality is not merely reflected in Kennedy’s decision to retire but also in his decisions on the court. A common theme of this term’s major 5-to-4 rulings is the belief that those in power — whether it’s a president seeking to ban Muslims in Trump v. Hawaii, a corporation looking to dilute the political power of its workers in AFSCME v. Janus, or a fake health clinic hoping to deceive vulnerable women in National Institute of Family and Life Advocates v. Becerra — should be free to wield their power however they choose.
It’s hard to imagine a moment in which parents of all social classes won’t try to provide opportunities for their children or when Supreme Court justices, by definition, are less than elite. Still, at a time of unprecedented inequality, we should expect more from those at the top. Supreme Court justices — like the presidents who appoint them and the senators who confirm them — must be able to stretch their moral horizons beyond their limited social circles. In an increasingly top-heavy country, empathy and diversity are not about soothing bleeding-heart feelings. They are basic requirements for democratic leadership. Without them, public servants can represent only a narrow slice of the public they serve.
In the long run, we must also reverse the trend of rising inequality, not just of wealth but also of power, that threatens the United States. Unfortunately, we’re currently making things worse. The Citizens United opinion that Kennedy wrote, the voting rights restrictions passed in the wake of Shelby County and the tax cuts championed by Trump all have something in common: They accelerate the consolidation of power in the hands of a few. They display an acute empathy for the concerns of those at the top and a disregard for those who aspire to get there.
I doubt this is a matter of evil intentions. More likely it is a matter of ignorance. If the super-elite don’t actively seek to notice those outside their orbit, if they fail to recognize that people who need protection from power are the ones they are least likely to spend time with, a bias toward those at the top is the inevitable result.
It is coincidence, not conspiracy, that the same week Kennedy retired, a populist was elected by an eye-popping margin in our neighbor to the south. Andrés Manuel López Obrador narrowly lost his campaign for president of Mexico in 2006. He lost again in 2012. In 2018, he railed against what he called “the power mafia” — and trounced his nearest opponent by more than 30 points.
There’s a lesson there, if the Kennedys and Trumps of the world are only willing to hear it. In a democracy, the handful at the very top can wall themselves off from the vast majority of their fellow citizens for only so long. Sooner or later, you make your country’s promise open to everyone — or you find your fellow citizens storming the gates.