When
the Republican Party in 1980 nominated Ronald Reagan for president and Al D’Amato
captured the Republican nomination for the New York Senate seat, I walked
out. Over the next forty years,
prominent Republican members of the federal judiciary trod down the same
path. By the time they left the bench,
Harry Blackmun, John Paul Stevens, David Souter and Richard Posner were no
longer Republicans. Sandra Day O’Connor
in her last years on the bench did little to hide her disgust with Bush
Administration and Republican politics.
Anthony
Kennedy never left the Republican Party.
He was a sound Republican when nominated by Ronald Reagan and as sound a
Republican when he allowed Donald Trump to choose his replacement. Kennedy never wavered in his commitments to
constructing a constitutional politics that favored the GOP. From Bush
v. Gore (2000) in his early years on the Court to Shelby County v. Holder (2013) in his later years, Kennedy could be
counted on as a solid vote for Republican political interests. He was as
friendly to Republican business interests as Scalia, Roberts or any other
Republican appointed after Sandra Day O’Connor (who was no slouch on these matters).
What
some commentators insisted was an independent streak reflected no more than
Kennedy’s commitment to the Republican Party of Charles Koch, whose political
and business interests gained Kennedy’s unwavering support, rather than the Republican
Party of Donald Trump. The Koch’s are
far more committed to busting unions and ending Obamacare than fighting the culture
wars. Far more than any other justice on
the Supreme Court, Kennedy implemented the Koch agenda. He would deny millions healthcare in the name
of an abstracted federalism and never met a union busting tactic he could not
endorse. Both Kennedy and Koch
understood that professional suburban Republicans are as inclined to terminate pregnancies
and to prefer romance with members of the same sex as their counterparts in the
Democratic Party. As the Fortune 500
became more sympathetic to mild race based measures, so did Kennedy. The affirmative action plan
Kennedy upheld in Fisher v. University of
Texas (2016) increased enrollment from the same affluent suburbs that
spawn Republicans most committed to the Koch business agenda.
The
timing of Kennedy’s resignation confirms the strong connections between Trump
Republicans in the legislative and executive branches of the national
government and Trump Republicans in the federal judiciary, while confounded the
few remaining voices left who think Republican judges will remain independent
of Republican politics. Many conservative
public intellectuals have demonstrated an honorable independence from
Republican politics. George Will,
Jennifer Rubin and Michael Gerson are among the many conservative thinkers who recently
walked out of the Republican Party. Bret
Stephens and Ross Douthat regularly excoriate Donald Trump and his Republican
enablers in their New York Times columns,
even as they remained committed to Burkian visions. Kennedy and the Republicans on the Supreme
Court, however, are more inspired by Mitch McConnell than Jennifer Rubin. Nothing Trump or his supporters do raises any questions about their allegiance to the GOP. Decision
after decision over the last two years has continued promoting either
Republican business or Republican political interests as if nothing politically out of
the ordinary is taking place. Kennedy
joined in all enthusiastically, stopping only to deliver the same ineffective
scold Republicans in Congress occasionally make to demonstrate that they are
not completely beholden to the bigot in the White House.
Ending
a relationship has consequences whether the relationship be with another person
or a political party. When you walk out
of a political party, you begin to question more seriously policies you always
had private doubts about. The same
tactics you thought necessary to prevent the other party from gaining office
now seem to you democratically and constitutionally indefensible. Walking out of the Republican Party improves
your hearing. Personal experience
suggests you hear racial dogwhistles far more clearly when you are outside than
inside the GOP.
Anthony
Kennedy never walked out of the Republican Party. Throughout his time on the bench, he contributed
without question to Republican efforts to dismember unions, gut antitrust laws
and close off courts to workers who had legal complaints about their bosses. Kennedy for more than three decades supported
Republican efforts to undo American democracy through vote suppression,
gerrymandering and the substitution of money for political support and
democratic dialogue. No matter how
loudly Republicans blew, and Donald Trump plays fortissimo, Kennedy in cases
involving low-income housing, police stops and the travel ban could be trusted
never to hear the racial dogwhistle.