Thoughts on Justice Kennedy’s Retirement Announcement
From a conservative who did not vote for Donald Trump
The following isn’t mine. It is from a friend who doesn’t write publicly but encourages anon sharing. It just happens to be something I could have written save for I grew weary of seeking redress for abortion from the courts, I’ve always liked Thomas Jefferson’s analysis, and in 2016 I cast a strategic and slightly less irrelevant vote for the Libertarians. Hey, they were actually on the ballot in all 50 states and I wanted them to hit the vote threshold for funding so that in 2020, the two major parties might feel the pressure to provide the public with better options. It didn’t work. But I digress.
Here are basically my thoughts — and probably the thoughts of a whole lot of other conservatives currently adrift — on Justice Anthony Kennedy’s retirement as expressed by a friend. Certainly, I’ve seen a bunch of tweets along this line, and the conclusion below is right, for better or worse.
I didn’t vote for the President. Many of you know this. I wrote in a friend, a man of good character and an Army combat veteran, not as a protest but because I sincerely believe he would make a fine President if the opportunity ever arose. It won’t, because that’s not the sort of person our system draws to the top these days, but so it goes.
Against that decision were an array of arguments, most of which struck me as unpersuasive, except for one in particular: the judiciary.
Whatever critiques could be brought to bear versus the major-party nominees, there was always the judiciary. I dislike the reality that we live in an era of effective judicial-aristocratic rule — one of many reasons I have had to slowly reevaluate Thomas Jefferson in a more favorable light, much to my regret — and so I was reluctant to act accordingly. Anyway, the decision was made, and my (wholly irrelevant) vote was cast.
Fast forward twenty months, and this day provides powerful and nearly decisive weight to the judiciary argument. The Janus case is truly epochal, and would not have happened but for the ability to nominate and confirm Neil Gorsuch last year. Just over one year later, there is another opportunity to shape the court with the successor to Anthony Kennedy. It won’t be the last. Ruth Bader Ginsburg is 85 this year. Stephen Breyer is 80. The next-oldest justice is Thomas, who is only 70 and, all things being equal, likely has a decade or so left. It is therefore nearly certain there will be a 5–4 right-leaning Supreme Court in the near future; it is reasonably possible to imagine a 6–3 one; and it is even at the outside edge of possibility to imagine a 7–2 one.
When you get into 6–3 and 7–2 territory, you get to imagine a whole range of now-unthinkable outcomes, for example revisiting Roe. Ends and means and all that, and all things are contingent. But today my friends who argued for the Court as the lodestar of action seem pretty vindicated.
Anyway, the best name on this list is Texas’s own Don Willett, who has a fine legal mind, a sterling character, and a great Twitter feed, the latter now being the central mechanism of modern American governance.
