Justice Kennedy’s resignation was one of those shocks you’d braced yourself for, but somehow it still managed to knock the wind out of you. We all knew this moment would probably come — that Donald Trump would have the opportunity to nominate another Supreme Court justice, yet all I could do was sit staring open-mouthed and stunned as I read the news. The repercussions of this decision will reverberate for decades, perhaps over a half century, and the damage done may be incalculable.
Many are taking this moment to re-hash arguments over how Neil Gorsuch is sitting in a stolen seat. The never-ending re-litigation of the 2016 election and whose fault everything is has turned back up to 11. The only consensus seems to be that the Democrats are too flaccid to put up any real resistance.
Others are, of course, assessing Justice Kennedy’s legacy. A Reagan-appointee, he was a swing voter, who seemed to tilt hard right in the final few cases he heard on the Court. His resignation, specifically the timing of it, will be the thing that cements his legacy, though.
Why didn’t he wait until after the mid-term elections?
Kennedy’s most recent votes and concurring opinions make it clear that he doesn’t have much of a problem with the way Donald Trump is running things, and he is willing to place his trust in Trump to select a suitable replacement for him. This demonstrates a staggering unawareness of the darkness that is making its way across his country. He can’t see it, and that is perhaps the harshest condemnation of his tenure as an Associate Justice.
There are huge numbers of Americans living in abject terror of what might come to pass when Justice Kennedy’s replacement is chosen, and I get the distinct impression that this doesn’t register as important to him. There’s a carefreeness about his resignation that is at odds with the seriousness of this moment in history. That’s because none of what Trump and the Republicans are doing, none of what they have planned will affect him or anyone he cares about in the slightest. What we’re watching is pure indifference born of the knowledge that his life and the lives of his friends and loved ones won’t be buffeted by the ever-worsening storm.
Justice Kennedy’s resignation is the Kanye shrug of this American political moment. It is the ultimate privilege — just getting to walk away and sit things out as the fires begin to rage.
It’s not just Justice Kennedy, though. There are going to be SCOTUS vacancy mock drafts and brackets and betting pools. This is all a game to some people. One half of the country is utterly terrified and the other half is laughing and having beers. As more nightmarish information about what the Trump regime is doing comes out, it’s becoming clearer by the day that a reconciliation between these two factions may be impossible before the worst happens. The destruction of the nation, its wealth and reputation may be the only thing that brings home what is at stake to some. By then, it will be too late.
Justice Kennedy’s resignation also highlights the scale of the dysfunction in the American polity. One judge leaving the bench, even the highest in the land, doesn’t send such extreme shockwaves through a stable country. America is unstable. If we’re honest, it has been for some time. The rest of the world needs to recognize this and begin acting like it.