Anthony Kennedy Can’t Be Allowed to Die

By Michael Brendan Dougherty

Tuesday, January 23, 2018

When normal people find out that my job involves writing or thinking about politics, they sometimes ask questions like, “Who is to blame for the government shutdown?” Or “Will Donald Trump get reelected?” Or “Will Donald Trump get us all killed?” And I try to answer these queries quickly so as not to bore them too much: The people. Probably. And, I’m not discounting it, FWIW. Among people who also do this for a living, such as my fellow writers and editors at National Review, you have in-the-weeds conversations about “tail risks” to the whole system. You ask questions like, “Will the Senate still be around in ten years?” Or, “What would cause a regime change in the United States?”

And occasionally these conversations leave you with a thought that you can’t escape, even if you feel silly bringing it up. Here’s one that’s been bothering me lately. I’ve started to think that Supreme Court Justice Anthony Kennedy may be the one man preventing the United States from political breakdown.

Now, let me clear the decks a bit. I often find Anthony Kennedy’s jurisprudence ridiculous. And I find his self-regard utterly repulsive. He once told an audience that it was his duty to “impose order on a disordered reality.” He talks about his decisions as if he were the Tolkeinesque protagonist of the American story, beset by a fundamental loneliness while venturing to save the world. I don’t buy this self-conception for a second.

But I’ve come to believe that the Supreme Court has been playing a curious role in the American regime, one that isn’t assigned to it in the Constitution or by its post–Marbury v. Madison history. Technically, its role should be to declare whether or not this or that piece of legislation or executive-branch initiative is constitutional. This is what it claims to do.

But its real role in our regime is something else. The most salient feature of American political life is partisan conflict. Gerrymandering and other factors in elections have disempowered moderates in both parties and increased the power of activist groups in each political coalition. The closeness of presidential elections emphasizes that the country is divided in relatively equal camps. The American system, in the eyes of citizens, is functioning less and less like a federal system in an orderly republic. It seems more and more like a closely competitive mass democracy. So long as the presidential coalitions remain roughly competitive, partisans expect some victories in between their defeats.

And both sides have reason to pity themselves as the losers of the system. Partisan Democrats, with some justification, feel that the constitutional system favors dirt (geography), so it rewards Republicans with too many senators and even electoral votes than they would otherwise win. Many partisan Republicans also feel that their votes go for naught, and that elites in the media, donor class, and social scene of Washington, D.C., constantly make Republicans under-deliver on their promises. The mass democratic character has also been seeping into other institutions, with federal courts issuing boldly partisan decisions whose logic would embarrass them if their partisan character didn’t overwhelm all other considerations.

The Supreme Court’s role in this scene, with Kennedy as the swing justice, has been to moderate and restrain the ambitions of each party. Kennedy deals out victories and defeats to each side — giving slightly more defeats to social conservatives. In effect, he constrains what each side can do to the other. His mercurial jurisprudence replicates and even gives the savor of legitimacy to a closely divided country.

So I’ve started to worry that if the Court soon consolidates to the left or the right, partisans on the losing end of that bargain will swiftly lose faith in democracy itself. A non-swinging Supreme Court would give the impression of super-charging the ability of one party to act, and restraining its competitor. A consolidated Supreme Court could open up whole new fields of legislation for one side to act against the other. At that point, what would happen?

With self-sorting populations and a strong country–city divide, our current partisan conflicts are intensifying. But I doubt that our partisan camps are ready to descend into open civil war. The United States population is probably too old for that.

But I can foresee both parties’ reaching for extraordinary measures if they felt that the Supreme Court had become the cat’s-paw of one party. The obvious bag of tricks includes states’ trying to nullify laws. Or one party could try to pack the Supreme Court with new justices to rectify or reverse the consolidation.

In other words, I’ve begun to think that what’s left of our constitutional regime relies on the impression of legitimacy given to it by a swinging Supreme Court, the Kennedy Court. Maybe we’ll get lucky and the relative strength of our respective presidential coalitions and the respective health of the Supreme Court justices will align to keep the court balanced roughly the way it is, preserving what’s left of our constitutional order. But lately, I’ve begun to doubt it.

If the accidents of history have made Anthony Kennedy our philosopher king, his death means American regime change.