By Maseeh Moradi*
In October 2015, during my second month of law school, Justice Anthony Kennedy visited and made a remark that I have been thinking about ever since the bitter evening of November 8, 2016. Plato and Aristotle, he explained, had very low views of democracy, believing it a form of government that both lacked the capacity to mature and that tended to devolve dangerously (“The insatiable desire for freedom occasions a demand for tyranny,” Plato famously wrote in The Republic). “It is our destiny,” Kennedy said unflinchingly on that fall day, “to prove [them] wrong.”
Kennedy’s reference to Plato was fitting; the former has served as the American Republic’s philosopher king for much of the past quarter-century. Over this time, Kennedy has arguably been the most powerful man in America, serving as the decisive swing vote on affirmative action, abortion rights, same-sex marriage, campaign finance, immigration, and more. He is a modern oracle—both sides regularly cater to him in legal briefs and oral arguments, his vote often ends up fundamentally transforming American life, and he uses lofty, contemplative language to explain his reasoning.
For example, in Casey (1992), Kennedy preserved abortion rights through describing liberty as including “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” In Obergefell (2013), his most significant opinion, Kennedy ruled in favor of a constitutional right to same-sex marriage through citing Confucius and Cicero, adding high-flown rhetoric to invoke the metaphysical dimensions of marriage. “Choices about marriage shape an individual’s destiny . . . in forming a marital union, two people become something greater than once they were . . . marriage embodies a love that may endure even past death” (Justice Scalia disparagingly referred to this sort of language as no more than “the mystical aphorisms of the fortune cookie”).
During the unsettling first weeks following the recent presidential election, I found comfort in Justice Kennedy’s remark about Plato and Aristotle from over a year prior. Four liberal justices and a vigilant, tyranny-defying Kennedy meant that the Court could serve as a meaningful bulwark against the Trump administration’s most audacious excesses, even in the face of cataclysm or yet deeper levels of political polarization and cynicism than we currently face. Though Kennedy is no political liberal—his votes in Bush v. Gore (2000), Citizens United (2010), and Shelby County (2013) underscore that—he has shown a propensity for independent thinking and an ability to push back against a Republican president (see Hamdi (2004), Hamdan (2006), and Boumediene (2008)).
I have thus been distressed by recent whispers that Kennedy is considering retirement. Some claim that misgivings Kennedy may have had about the quality of a Trump-picked successor were assuaged with the recent appointment of Neil Gorsuch, Kennedy’s former clerk. Moreover, Trump has pledged to make his next selection from a list of “mainstream” conservative jurists provided by the respected Federalist Society. Or maybe Kennedy was never that concerned in the first place; the Trump and Kennedy families have ties, and Ivanka Trump was Kennedy’s guest at a February oral argument.
But the past few months have featured plenty of democratic backsliding, presumably disquieting Kennedy. Trump promulgated a poorly drafted, wanton travel ban, later stridently attacking the judiciary for striking it down. The Senate Republicans invoked the so-called “nuclear option,” which means that any future Supreme Court nominees—even those supremely loyal to Trump—will have a substantially easier time being confirmed (in the face of Trump’s low approval ratings and an ongoing special counsel investigation, loyalty from future nominees will be paramount). Trump has appointed unqualified, inflammatory judges for other life-tenured Article III judgeships, and, more generally, he has shown both an inclination to shamelessly obstruct justice and a peerless penchant for mendacity, undeterred by the dignity and gravity of his office.
So what will Justice Kennedy do? In one setting or another, this has been a central question in American jurisprudence for a few decades now. If our destiny is to preserve and advance American democracy—to defy Plato and keep tyranny at bay—we must hope that our philosopher king does not abdicate his throne. By staying, Kennedy may preserve much of the progress he has advanced during his tenure and combat much of what plagues our system—to name two, partisan gerrymandering, which leads to tragically unrepresentative representation, and, if the Court takes up the travel ban, the stain of Korematsu (1944), which upheld Japanese internment, has never been formally repudiated, and still alienates and offends millions of Americans—all while being present to check a president who has shown less regard for democratic norms than any in many generations.
For the sake of our democracy, long live Anthony Kennedy’s tenure on the Court.
*Maseeh Moradi is a 3L at Harvard Law School and Executive Online Editor for the Harvard Law & Policy Review. He may be reached at firstname.lastname@example.org.