This is a column on a subject of broad public interest but with a single reader in mind: Justice Anthony M. Kennedy. Justice Kennedy, if you’re reading this, my message is simple: Please don’t retire. It could put your legacy at risk; even more, it would be terrible for the country at a moment that demands healing, not another bitter fight ripping at the seams of national unity.
It’s natural, of course, that stepping down would be on your mind. At 80, you are the court’s longest-serving justice — 29 years this month. Appointed by a Republican president, you might decide that a Republican president should have the chance to name your successor.
Your tenure will be best remembered — and justly celebrated — for rulings on gay rights. Romer v. Evans (1996) struck down an amendment to the Colorado Constitution that barred the state or localities from passing anti-discrimination laws to protect gays and lesbians. Lawrence v. Texas (2003) declared unconstitutional laws criminalizing homosexual conduct.
Next, U.S. v. Windsor (2013) struck down the Defense of Marriage Act and its prohibition against having the federal government recognize same-sex marriages permitted by state law. Finally, Obergefell v. Hodges (2015) established a constitutional right to same-sex marriage.
Some argue that the consequences of these decisions are already so woven into the social fabric that a future court, a court without a Kennedy to protect his precedents and their underlying rationale, will be reluctant to unwind them.
Let’s hope so — although a worrier might note that it was just two years ago that Chief Justice John G. Roberts Jr., dissenting in Obergefell, warned against “stealing this issue from the people” and “making a dramatic social change that much more difficult to accept.” That the right to abortion enshrined in Roe v. Wade remains contested 44 years later counsels against assuming that this debate is settled.
But even if there is no going back in the arena of gay rights, there are issues bound to make their way to the court. Can employers discriminate against workers on the basis of sexual orientation? Can landlords refuse to rent to gay or lesbian tenants? How should the law treat transgender citizens? How should courts balance gay rights against claims of religious freedom or invasions of the right to privacy?
Justice Kennedy, your voice on these issues is essential — not simply your vote but your approach to understanding gay Americans’ rights to “equal dignity in the eyes of the law,” as you put it in Obergefell.
Notably, Judge Neil Gorsuch, President Trump’s nominee to Justice Antonin Scalia’s vacant seat, seems disinclined to read the Constitution in that expansive way. The Constitution, he wrote in a concurring opinion last year, is not “some inkblot on which litigants may project their hopes and dreams . . . but a carefully drafted text judges are charged with applying according to its original public meaning.”
In a 2005 column for National Review, Gorsuch wrote disapprovingly that “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.”
In short, Justice Kennedy, Gorsuch seems more a guaranteed Scalia vote on gay rights and related cases than a Kennedy ally.
If you were to leave, a Trump-selected successor would almost certainly be in that camp as well — shifting the court dangerously away from the path of respect and justice on which you helped launch it.
And you, of all people, understand the national uproar that your departure would create. Your selection came after the retirement of Justice Lewis F. Powell Jr., who, like you, occupied the role of swing justice, and the failed nomination of Robert Bork.
The Bork episode feels, in strange retrospect, like an artifact of a gentler era. One data point: Democrats did not filibuster his nomination; he was defeated by a vote of 58 to 42, with six Republican senators joining the opposition and two Democrats voting for him.
In the current party-line environment, with a nuclear option looming if not already triggered, the fight over your successor might have a predictable end. But the intervening battle would be surpassingly ugly, reviving a debate over abortion rights that you sought to settle a quarter-century ago in declining to overturn Roe.
The country, in the aftermath of the 2016 election, is already so split and bruised. Please, don’t put it through more.
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