I admit to being shocked and then crestfallen at the announcement of Justice Kennedy’s retirement. Despite passionately disagreeing with his vote in Citizens United, I was ecstatic at his opinion in Obergefell, finally opening the door to marriage equality. His “swing vote” as we have come to see it, was the crucial fifth one in the Obergefell decision. I had never before witnessed, nor believed possible, such profound joy brought by a single Supreme Court decision. Of course, the painful opposite was also true, as in his vote recently upholding the President’s power to ban people from Muslim-majority countries in Trump v. Hawaii.
And so stood the relationship many of us had with Kennedy, at times nervously watching which way he would swing from atop the fence. His willingness to change his mind and not vote across party lines was a rare instance of government doing what it should. And we were all the more devastated that the many small advances in women’s choice, LGBTQ, and the myriad of other social issues could all be undone with the appointment of an ultra-conservative to replace him.
The real tragedy of Kennedy’s retirement has nothing to do with Kennedy, but the rest of us. His retirement has shattered the carefully constructed illusion we had hoped to continue living under. We have awoken to the truth that the Court is not here to protect us, and it may never have been able to. Like the two other branches of our government, it is first concerned with protecting what power it does possess. A power that sits on a knife’s edge. The Court has no enforcement mechanism. It relies on the executive branch to carry out its decisions and our general social agreement as a society that we will comply with its mandates.
This delicate reality is scarily evident in Worcester v. Georgia from 1832, where the Court ruled that Georgia laws seizing Cherokee lands (where gold was purported to be) were illegal. Andrew Jackson (no friend of first peoples) apocryphally said, “John Marshall has made his decision, now let him enforce it.” We could have the most progressive case law in the world, but without the rest of government’s willingness to fully participate, the Court’s decisions are just paper. While this sort of refusal to accede to the Court’s directives has been rare, the risk is doubtless an ever-present consideration in each of the Justice’s minds, conscious and otherwise. Supposing that they pay it no heed at all and swing wildly, even in the right direction, there’s only an understanding holding up its power, nothing more.
But the Court is rarely ever in this position because it rarely gets it right the first time. More often than not, the Court maintains the status quo before eventually overturning itself, see e.g., slavery, segregation, Japanese internment, marriage equality, etc. The Court is far more apt, despite its supposed position of neutral arbiter of the Constitution, to side with the prevailing sentiment of the powerful, no matter how retrospectively awful, only to later overturn itself in a kind of delayed apology. While this is in part due to the nature of the Court’s position — the novel conflicts before it are innately unsettled issues — it seems to lack any real ability to project itself forward into a higher moral zeitgeist ahead of anyone else. In a way, Kennedy in his “centrist” role epitomizes this fence-sitting position wherein the Court waits until it is too painful to keep things as they are.
Of course, I would take progress in these areas and others, however late, than none at all. But this is precisely why Kennedy’s retirement hurts. It broke the remaining strings holding up the Court’s ability to absolve us of the responsibility for progress. For too long, we have looked to the Court as the last bastion of hope for protecting the weak, and when it failed, we were able to shrug our shoulders and shake our heads and say “We fought hard, but it wasn’t enough.” The Court, especially Kennedy’s “neutrality,” helped protect us in our fantasy of impartiality and that it would it do right by us and the many oppressed. But the Court, however constructed, is incapable of this, either because of physical limitations, moral ones, or some combination of both. It does not and cannot change hearts and minds. It will not dictate progress, only shadow, and occasionally, retard it.
The dismay many of us feel at the knowledge of Kennedy’s departure is the realization that we are, and have always been, our brothers’ and sisters’ keepers. Before this moment we were all Kennedy, sitting on the fence of history until it was no longer convenient or too painful to stay there. Our realization that the burden of protecting the downtrodden and oppressed cannot be outsourced to the powerful, because they are so often the ones doing the oppressing.
Without Kennedy, the Court is what it’s always been, we are just seeing it clearly now for the first time in our generation. It’s not to say that we should abandon efforts to press it towards higher ideals. But we should no longer pretend that it absolves us of our responsibility to keep pressing forward long after the gavel comes down. Kennedy was never able to save us, and it’s tragic that we believed he could. But the far more empowering realization is that his replacement can only slow, not stop, a more just and equitable world — so long as we get off the fence.