Joshua Matz, publisher of the Take Care legal blog, was a law clerk to Justice Anthony M. Kennedy from 2014 to 2015.
These are dark days in America. Tribalism, kleptocracy and intolerance stalk the land. The White House is besieged with credible accusations of criminality and corruption. Many have lost faith in their institutions of government. Democracy itself seems besieged.
Yet even in this cynical age, the court has maintained formidable public support. Kennedy is an essential part of that story.
For decades, as one of the court’s more influential members, he has worked to keep it on a (relatively) even keel. Whereas too many Americans demonize those with different views, he has placed civility, good faith and open discourse at the heart of his worldview. As bitter partisanship consumes Congress, he has stood firm in his devotion to judicial independence.
Most importantly, Kennedy remained singularly open to a wide range of views on controversial issues. He recognized that the Constitution encompasses many values — some of them in tension with others — and that we must learn from experience. “The nature of injustice is that we may not always see it in our own times,” he once wrote. These are words he lives by.
Wrongly derided by critics as a lack of principles, this open-mindedness is one of Kennedy’s great virtues. More than most judges, he felt the force of competing constitutional values and institutional pressures. His judgecraft thus contained a distinct note of statesmanship. If his views evolved and admitted ambiguity, so be it: Rigid adherence to an all-encompassing orthodoxy is not the true test of a great jurist.
This character trait has benefited the court and the nation. With Kennedy as a frequent swing voter, Americans of all persuasions knew their voices and values would receive serious consideration by a key decision-maker — one who was not strongly inclined for or against them from the very outset. The outcome of many cases has been a mystery until the very end.
This can be maddening, no doubt. So can the fact that a single man wields so much power. But it is surely a good thing that on most issues, large swaths of the nation have not simply given up on the court as a forum in which their vision of the Constitution has a shot.
This will be a significant and overlooked part of Kennedy’s legacy. Plenty of his decisions have been unpopular with some or even most Americans. Together, though, they have charted a path that largely maintained the court’s public legitimacy.
Of course, that isn’t to say that everything Kennedy has done is perfect. Like many lawyers (and former law clerks), I strongly disagree with some of his most important decisions.
And while Kennedy typically favors a cautious, stepwise approach, at times he quickly and unexpectedly reshaped the law. Uncertainty about how far and fast he would go — let alone in what direction — could elevate the national blood pressure around sensitive issues.
While Kennedy is indeed fair-minded, on many issues he ultimately inclined rightward. Landmark rulings on LGBT rights, abortion, capital punishment and racial equality will define his legacy; but so will influential opinions about campaign finance, Miranda rights, religious freedom, commercial speech and federalism. Though the left has not been shut out, it has mostly played defense.
Still, especially in contrast to the turbulence of the 1930s and 1960s, there can be little doubt that Kennedy’s tenure helped sustain a fair measure of stability. He and the court have served as a bulwark for the rule of law in a world often set against it.
As a result, his retirement will spark chaos. Keen to reshape American life on a startling scope and scale, conservatives will race to confirm a reliable vote. Things will get ugly — very ugly. Roe v. Wade hangs in the balance. So do many other famous precedents.
Accordingly, the court’s very legitimacy is now up for grabs. Signs suggest that President Trump aims to move the court so far to the right that half the nation will inevitably deem it an avowed enemy.
The confirmation battle ahead will place the court under crushing pressure. And if the result is a muscular, immodest conservative majority, the center will not hold.
The future now rests with Chief Justice John G. Roberts Jr., who has shown sustained concern for the court’s legitimacy, but whose votes place him far to Kennedy’s right. Will his court truly remain open to all Americans? Or will it speak for only one viewpoint?
As Kennedy recognized, the court teaches us all about democracy. It can define how we live. We can only hope that Kennedy’s insight carries on as the court steps toward a newly uncertain future.
Jack Goldsmith: Justice Kennedy’s retirement is the biggest event in U.S. jurisprudence in at least 15 years