An open letter to Justice Kennedy

Dear Justice Kennedy, Rumors of your impending retirement are, for the second year in a row, echoing around Washington and across America. While you and your colleagues on the Supreme Court were listening to the final oral arguments of the term, those rumors were only growing more insistent.

Please don’t go.

Sitting between the four liberal justices and the four conservatives, you are the most powerful member of the most powerful court in the country. Your vote has delivered landmark legal victories for Americans of all political stripes, from gays and lesbians seeking equal rights to African-american college students seeking a better education to deep-pocketed corporations seeking to spend more money influencing politics.

You have sent mixed signals about your intentions, but that hasn’t stopped Republicans from referring to your departure as a done deal. They smell blood — if they can install another rock-ribbed conservative, the court will have a locked-in right-wing majority for the rest of most of our lifetimes.

Have past justices given a thought to politics when considering the timing of their exit from the court? Of course they have, whether or not they copped to it. But this moment is about so much more than partisan jockeying. We can’t know what is in your heart, Your Honor, but we know what your departure would mean for the court, and for the nation.

There are two ways to think about this choice: The safeguarding of your legacy, and the safeguarding of the Supreme Court itself.

Start with the legacy. Across your 30 years on the court, your most important opinions have altered not just the lives of millions of Americans but the course of the nation’s history. A sampling: Protecting reproductive rights, and saving Roe v. Wade from being essentially overturned, in 1992. Recognizing the equality and dignity of gays and lesbians multiple times since 1996 and, in 2015, granting same-sex couples the constitutional right to marry. Preserving the use of affirmative-action policies at public universities.

You’ve also recognized the continuing travesty of the nation’s broken criminal justice system, voting to strike down excessive sentences for juveniles and the intellectually disabled, and forcing states to shrink their overcrowded prisons.

Of course, part of your charm is that you’re an equal-opportunity disappointer. In 2010, you wrote the majority opinion in the Citizens United case, which opened the floodgates to unlimited spending in political races by corporations and labor unions. In 2013, you signed on to an opinion that gutted the Voting Rights Act and allowed states across the country to make it harder for people, especially minorities, to vote. In the next two months, you may well vote to uphold President Donald Trump’s travel ban, or in favor of the Christian baker who doesn’t want to make cakes for same-sex weddings. At the same time, you would most likely be the key vote to rein in partisan gerrymandering, one of the most corrosive and anti-democratic practices in modern America.

And none of us outside the court can know how much you influence which cases the justices choose to review — or not review.

Your record is more conservative than liberal, but there’s no question that you are less of an ideologue than anyone the president would pick. How do we know? Look at his first nominee, Neil Gorsuch. Perhaps you were comforted by this choice — a well-qualified judge who clerked for you, and who would have been on any Republican’s short list. But Gorsuch has already made it clear that while he’s a fan of individual liberty, at least in some cases, he is unlikely to go to great pains to protect your most cherished values — equality and human dignity. While a court with two Gorsuches would be quick to vote in favor of religious bakers, it would not be eager to broaden the constitutional rights of gays, lesbians and other vulnerable groups — let alone protect women seeking to control their own bodies.

Gorsuch replaced Justice Antonin Scalia, which didn’t disrupt the balance of the court. Replacing you with a hard-line conservative, in contrast, would have enormous consequences for decades. Just ask Sandra Day O’connor, your onetime fellow swing justice who left the court in 2006 and now watches as her replacement, arch-conservative Samuel Alito, votes to tear down her legacy.

Did you spend a lifetime honoring and upholding the Constitution and the values of civility and decency only to have your replacement chosen by Trump?

Do you want to give your seat to a president whose campaign and administration are under criminal investigation, whose closest aides have been indicted or have pleaded guilty to federal crimes? A president with so little regard for or understanding of the role of the judiciary, the separation of powers and the rule of law? A president who nominated to the federal bench someone who called you a “judicial prostitute”?

There is also the institutional legitimacy of and public respect for the nation’s highest court. Right now that legitimacy is eroding. The audacious decision by Senate Majority Leader Mitch Mcconnell to hold a court seat hostage and use it as an electoral tool “places the court in a position of real institutional peril,” as The New York Times’ Linda Greenhouse wrote last year.

You know as well as anyone that the Supreme Court’s authority depends on public confidence. When that fails, the consequences can be dire.

This is where you come in. You’re as close to a centrist as anyone on the current court, and so you are in a position to protect its good standing. The American people are desperate for someone who is not polarizing, and your continued service would be an encouraging sign to them that the court can still operate outside politics.

Now that Republicans have killed the filibuster for Supreme Court nominees, they’ve cleared the path for anyone Trump wants on the bench. If Trump gets the chance to fill your seat, it will be the most conservative court in nearly a century.

We realize this isn’t an entirely fair request. Every 81-year-old, especially those who have devoted their lives to the service of their country, should have the freedom to retire without worrying that the nation’s future may hang in the balance. But this is the world we live in.

Mcconnell is probably correct that blocking President Barack Obama’s third Supreme Court pick, Judge Merrick Garland, was his biggest success as a politician. Yet he may find this was a Faustian bargain. By stealing the seat for short-term political advantage, Mcconnell has inflicted institutional damage from which the court, and the Senate, may never fully recover.

This is your court, Justice Kennedy. It is facing an institutional crisis, and it needs you.