Courts

Justice Anthony Kennedy Is Retiring

Fresh off of helping white supremacists defend bigotry towards gays, Muslims, and blacks, Kennedy is peacing out.

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(Justice Anthony M. Kennedy, via Getty Images)

Well… Donald Trump is going to get to nominate another white supremacist:

UC Irvine Law Professor Rick Hasen called this yesterday. He noted that Kennedy’s defeatism this term signaled that he had mentally checked out.

But on the key issues of the day, the feeling from Kennedy is that he’s done. It appears that this will be the first term since he’s become a swing justice where he did not side with the liberals in one significant 5–4 case. He’s returned to his conservative roots and has given up decisively bucking his own party. The separate concurrence in the travel ban case felt to me like a Kennedy mic drop. He’s done all that he can do to fix the problems in American society. Now it’s up to those in power, and those who put them there.

Coming from America’s most powerful jurist for the last decade, it is a depressing kind of defeatism. If he does retire now, these final abdications will also prove to be blind to how the next justice has the great potential to undo much of Anthony Kennedy’s legacy.

The courts are not coming to save us. Donald Trump will now get to appoint a second Supreme Court justice. While Kennedy has sided with the bigots in his party this term, there was always a hope that he would do the right thing. The next justice will be another arch-white-supremacist, and it will be brutal as conservatives launch fusillade attacks on women’s rights. The Court is going to lurch even further to the right. Republicans will rejoice that they finally have the power to effectuate their darkest fantasies.

Chief Justice John Roberts, fresh off of authoring Korematsu 2, becomes the Court’s “swing” justice.

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Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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