(Justice Anthony M. Kennedy, via Getty Images)
There’s a new book coming out about Sandra Day O’Connor. “First,” written by Evan Thomas.
It’s due out on March 19th. Some people have already been reading their review copies. I’m… not one of those people, but I know some of those people. Apparently, there are a few bits where Ruth Bader Ginsburg throws major shade at her former Supreme Court colleague, but not the one who is the subject of the book.
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Stone Cold RBG. Kennedy hadn’t even retired yet when she told this to Evan Thomas for his upcoming biography of O’Connor: pic.twitter.com/QpsnuNOAns
— Mike Sacks (@MikeSacksEsq) February 25, 2019
Shots. Fired.
The implication, of course, is that Sandra Day O’Connor was confident in her role as a “swing” justice, while Anthony Kennedy — “Tony” to his colleagues — was prone to “excessive worrying.”
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And, this isn’t the first time RBG has gone in on Kennedy:
RBG on Justice O'Connor as the prior "swing" justice: "Some people are indecisive. She was not."
I WONDER WHO SHE'S THROWING SHADE AT
— Cristian Farias (@cristianafarias) September 27, 2017
There’s nothing wrong, of course, with being a worrywart. After O’Connor retired, Kennedy became immensely powerful. It’s okay if he was never comfortable in that role. That kind of spotlight is not for everybody, and not for nothing, but the people who actively want to wield such unaccountable power aren’t necessarily the best people.
But, the picture of O’Connor as “wishy-washy” because of her “swing” status has always been wrong and I’m here for any and all pushback against that sexist trope. O’Connor’s mettle is also a takeaway from Linda Hirschman’s book, “Sisters In Law.”
Hardly new. For decades people called O’Connor often wrong but never in doubt. And Kennedy’s performance of Hamlet also decades old. And actually not that interesting either. https://t.co/kQNc8I0m0u
— Linda Hirshman ♂️ (@LindaHirshman1) February 25, 2019
Understanding how Kennedy approached his time as the Court’s most important justice is the only way to make sense of how Kennedy left the Court. His vomit of terrible decisions and votes in his last term: Masterpiece Cake, Gill v. Whitford, and Trump v. Hawaii, suggest a justice who just wanted to go home. It takes a lot of strength to be a moderate. Kennedy had clearly lost his will to wield that kind of power, by the end.
I can’t know how O’Connor would have ruled on those three cases. I’m positive I would have found reason to be mad. But, O’Connor would have ruled. Kennedy spent his last days trying to dodge the cases thrust upon him.
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 [email protected]. He will resist.