Justice Kennedy is a Mortal. And That’s Okay.

I presume that by the time you read this, others will have responded to Michael B. Dougherty’s “Anthony Kennedy Can’t Be Allowed to Die,” which argues that America actually needs a swingy Supreme Court because “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.”

At the outset, I’ll note that I consider Dougherty to be a smart and honest pundit; I’ve linked to his work on several occasions over the past year and my dealings with him have always been good.  Moreover, he advertised his posting on Kennedy as “potentially odd or embarrassing thoughts,” so he was aware his piece was going to provoke people.  For the reasons that follow, I think it’s provocative without lapsing into a “hot take.”

Accordingly, I won’t dwell on the obvious responses he’s likely to get, starting with the basic idea that an official appointed to essentially lifetime tenure is the guardian of American democracy, particularly someone whom Dougherty himself criticizes for once claiming that it was his duty to “impose order on a disordered reality.”  Or the fact that by largely saving the poorly reasoned, poorly written and anti-democratic Roe v. Wade in Planned Parenthood v. Casey, and authoring the poorly written and poorly reasoned majority opinion in Obergefell (regardless of whether one supports the outcomes in either case), Kennedy is the Justice currently least qualified to safeguard the republic, let alone democracy.

If there is anyone in public office who helped contribute to political moment in which Tony Perkins, president of the Family Research Council, defends Pres. Trump’s alleged affair with an adult video actress because social conservatives are getting outcomes they like, it’s Anthony Kennedy.  “But Gorsuch!” is largely the child of Kennedy, the Justice who for many represents the very bad turn America took when the Democrats succeeded in smearing the jurist first nominated for the seat, Robert Bork.

I’ll let others hash over those details to make a more basic point.

During the 2016 campaign, Jonah Goldberg used to respond to the apocalyptic arguments of Trump supporters by observing that if America was one election away from destruction, it was already too late.  The same principle applies here, though Dougherty lacks the hysteria of Michael Anton (indeed, MBD recognizes the Court has overstepped its role in our constitutional system).

If the health of the republic rests on the shoulders of Anthony Kennedy, we are already where Dougherty fears we will be (and probably have been since classical liberals bought the argument that progressivism was saving capitalism from communist revolutionaries).  And no one would be happier about being anointed indispensable than Kennedy.

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