Thanks a Lot, Justice Kennedy. How Screwed Are We Now?

Justice Kennedy announced his retirement Wednesday, because he apparently doesn't care about his legacy.

During this term in particular, Kennedy voted in lockstep with the conservative wing of the Court on every case that the average social justice-minded person would care about.

On Wednesday, U.S. Supreme Court Justice Anthony Kennedy screwed us over, and screwed us over good: He announced his retirement from the Court. In doing so, he officially handed control of the federal judiciary to conservatives for at least a lifetime.

We say “officially,” because the truth is that Kennedy had been voting his conservative conscience for years on everything from abortion rights, to voting rights, to yes, even LGBTQ rights. During this term in particular, Kennedy voted in lockstep with the conservative wing of the Court on every issue that the average social justice-minded person would care about. Name the case: Masterpiece Cakeshop v. Colorado Civil Rights Commission; National Institute of Family and Life Advocates (NIFLA) v. Becerra; the Muslim Ban at issue in Trump v. Hawaii; Abbott v. Perez; Janus v. AFSCME. In all of them, Kennedy has been on the wrong side.

He has shown time and again that when it comes to weaponizing the First Amendment to protect evangelicals’ religious beliefs and feelings to the exclusion of everyone else—and even to the point where those religious beliefs and feelings are being imposed on everyone else—he is a staunch conservative. Ultimately, his stunning ability to see religious animus where there is none and to ignore it where it is present will be his legacy.

For the past year and a half, we have been worried about the prospects of Kennedy retiring. But to be quite honest, his opinions and votes over the past term have made his departure somewhat easier to stomach. He has certainly not been a reliable liberal vote.

Let’s be fair, shall we? His votes in favor of LGBTQ rights from Lawrence v. Texas to Obergefell v. Hodges undeniably advanced the cause of equality for LGBTQ people. And the way that he writes about LGBTQ people would give the impression that he is deeply concerned about LGBTQ rights.

For example, this is what he wrote in the majority opinion in Obergefell:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Lovely, right? Certainly we thought so at the time, lauding Kennedy for recognizing that love is love and that gays, lesbians, and everyone else should be able to marry. Sure, it’s a conservative vision of love, rooted in patriarchal institutions. Still, though: It remains an important decision, and that passage makes us tear up.

But given his retirement announcement and his abominable performance during this year’s Supreme Court term, those words have proven ultimately toothless. Because by retiring now—before the 2018 midterms—he has ensured that Senate Republicans will try to ram a Trump nominee through the confirmation process before the new congressional session begins in January. Republican Senate Leader Mitch McConnell has already promised as much. And that nominee is not going to be a friend to the LGBTQ community. It’s more likely than not that open hostility to LGBTQ rights will be an important qualifier for anyone Trump chooses to replace Kennedy.

By retiring now, Kennedy has almost certainly thwarted Democrats’ chance to wrestle control of the Senate from Republicans and therefore keep them from confirming another right-wing extremist this year. He basically screwed us all. It seems purposeful, not to mention hurtful to the LGBTQ people in the United States who have come to rely on him to advocate for them.

And yes, the Court is not supposed to be partisan or to concern itself with who is president and who might replace them. But the truth of the matter is that is bullshit: When a Supreme Court justice chooses to retire says a lot about their priorities. Whatever Kennedy’s priorities are, saving his legacy doesn’t seem to be one of them.

If Kennedy truly cared about LGBTQ rights, he would have stayed on long enough to ensure that he would be replaced by someone who shared that (somewhat feckless, let’s be honest) commitment.

But he didn’t.

He also all but guaranteed the right to privacy in reproductive choice that formed the foundation of his LGBTQ legacy will be undone as well. If Kennedy was above room temperature on LGBTQ rights, he was at best lukewarm on abortion rights. Sure, he voted to uphold Roe v. Wade in Planned Parenthood v. Casey and again to strike the ridiculously unscientific and full-of-shit abortion restrictions Texas passed in Whole Woman’s Health v. Hellerstedt. And we appreciate those votes. But we will not miss Kennedy waxing poetic about “abortionists” and concocting his own medical conditions like “post-abortion regret syndrome” to justify upholding abortion restrictions that should have been declared unconstitutional. Nor will we miss his sympathies for all those corporate bosses who face sleepless nights worrying about the fact that their employees have non-discriminatory access to birth control.

In fact, thanks to Justice Kennedy’s retirement, those bosses might not have to worry about birth control at all. If conservatives get their way, not only will they overturn Roe v. Wade, they’ll likely overturn Griswold v. Connecticut too, which is the 1965 case that found a privacy right in the Constitution that barred states from prohibiting couples from using contraception. (It’s that same privacy right, by the way, that led to the legalization of abortion in Roe v. Wade.)

So that story of a Walgreens pharmacist denying physician-prescribed medication to a woman who was mid-miscarriage, because of that pharmacist’s “ethical objections”? If conservatives succeed in upending the legal precedent that protects contraception, in rolling Roe back to the states, and in fully granting evangelicals the legal cover to ignore civil rights laws—all of which are real possibilities now—stories like those will become much more common.

We don’t yet know whom Trump will appoint to replace Kennedy, but let’s be honest: Does it matter?


Thanks, Tony.