Jus­tice Kennedy: Please don’t re­tire

The Washington Post Sunday - - SUNDAY OPINION - RUTH MAR­CUS ruth­mar­cus@wash­post.com

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 longest­serv­ing 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. Please don’t. 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 pri­vateschool 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.


An­thony M. Kennedy cel­e­brates his 29th year on the court this month.

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