It is too easy to say after the fact, but as I read Justice Kennedy’s final concurrences in National Institute of Family and Life Advocates (NIFLA) v Becerra and Trump v Hawaii, I sensed the end. They were legal love letters addressed to the American people he cherished so much – and also to the world.
Firmly rebuking what he called Califiornia’s ‘self-congratulatory’ reasoning for passing the FACT Act, his concurrence in National Institute of Family and Life Advocates v Becerra contained a farewell warning:
It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.
And in Trump v Hawaii, perhaps the most divisive decision in most recent memory, we had another homiletic valediction from Kennedy:
It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs. An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.
In many ways, both these concurrences capture the great contradictions of Kennedy’s service. He always seemed to be trying desperately to do the right thing, even though his vote was necessarily bound to disappoint half his constituency.
At the threshold, there is gratitude. Although many sections of the American public will be deeply concerned and disappointed at Kennedy’s decision to retire at this thorny juncture, these feelings must not obscure Justice Kennedy’s mammoth contribution to constitutional law. I hesitate to cite President Trump too fulsomely, but his assessment that Kennedy was a justice with ‘tremendous heart’ is undoubtedly true. For gay Americans especially, Anthony Kennedy’s consistent votes on the court were crucial to advancing the cause of equality and acceptance. It is a tribute to Kennedy’s great influence among both wings of the court that his opinion in Romer v Evans was cited by the majority opinion, dissent and his own concurrence in Trump: this decision laid the important groundwork for the expansion of gay rights in Kennedy’s jurisprudence. Upon Romer would be built Lawrence v Texas,Windsor v United States, and Obergefell v Hodges. As least as far as strides for human love go, these decisions are diamonds, to be mounted in the diadem of the greats.
However, as opera fans on the court will know, where there is love there is sorrow. As they meditate on the future, many commentators will pick among the past term’s embers some clear evidence that Kennedy was – as President Reagan promised when he nominated him – a ‘true conservative’. The critics will say that Kennedy’s vote for a decision now being compared to Korematsu is a gloomy reminder that the Kennedy who voted for Obergefell, Romer and Roper also authored Citizens United. In many ways the Kennedy who took the bench in October 2017 was the Kennedy who swung in Bush v Gore and voted against Glossip. Besides NIFLA and Trump, his final year on the court saw him vote with the conservative quartet in Husted v Randolf Institute (the Ohio case on removals from voting registers), and Abbott v Perez (allegedly racial gerrymanders in Texas voting districts). His approach to resolving (or not resolving) one of the most keenly anticipated decisions of the term, Masterpiece Cakeshop v Colorado Civil Rights Commission, will have perplexed many. To be sure, the statements released by his colleagues on his retirement are a testament to the fact that Kennedy brought extraordinary conscientiousness and care to each of his decisions, including those abhorred by many. Yet there is no escaping that his final year on the court will forever embitter some of his staunchest admirers.
Then there is the future. The language in Kennedy’s final two concurrences demonstrates that his gaze was fixed forward in writing them – and so are the eyes of America as the President nominates a successor. For liberals, the key battle lies in protecting a Kennedy legacy deemed desperately fragile. On the other side, his voting record in the October 2017 term leaves conservatives (both on the court and off) now greatly emboldened.
Anthony Kennedy was not the greatest writer on the Court – others will claim that distinction. However, I am sad that he is leaving. Not because his jurisprudence was always pleasing to read or easy to follow; influential decisions such as Obergefell were hard to grasp (Who will forget the Chief Justice’s final rebuke that the opinion had ‘nothing to do’ with the Constitution?). I’m sad because I fear that Kennedy’s retirement signals the first seismic break in the Court’s brittle balance – and equilibrium is a commodity in terribly short supply in American civic culture. For this reason, whether we are straight or gay, liberal or conservative, union or non-union, on his retirement our tears should all be of the same hue. We need more nuanced judges like Kennedy, not fewer.
Anthony Kennedy will reportedly spend more time with his family. This he deserves. Still, I like to think of him as Tennyson’s Ulysses’s, who ‘enjoy’d greatly’ but suffer’d greatly’. What fitting words for the unenviable role of ‘swing justice’! Nevertheless, passing the scepter to someone younger, Ulysses – like Kennedy – readies the sails for some final great toils. And as the great classical poet said of his equally complex hero: “Some work of noble note may yet be done!”