Dear Justice Kennedy: Why Now?

Dear Justice Kennedy:

I just heard that you’ve announced your retirement as of July 31.  Congratulations.  At the age of 81, and with more than thirty years of service to the most demanding judicial position in the country, I have no doubt that you are ready to shake off your robe, slip on your loafers, and settle down with a good book.  I get it.  I really do.

But why now? Honestly, I don’t think you could have chosen a worse time if you had consulted with a necromancer to pick the most horrible day to leave the Supreme Court.  Your resignation is both too early and too late.  The reason why you are too early is blazingly apparent.  Our president, the American Nero, has shown a blatant disregard for the rule of law.  He scoffs at the notion of checks and balances. He is a poster child for bigotry.  And, in a move with the gravest implication for our country, he has even called for the suspension of due process for immigrants. He and his senatorial henchman Mitch McConnell are positively salivating at the idea of replacing you with a right-wing ideologue who has no regard for the rights of individuals. You are famous for your love of the First Amendment.  What chance will the Bill of Rights have in the hands of a Supreme Court packed with justices who mirror the anti-democratic concerns of a narcissist?

At the same time, your resignation is long overdue.  You have already penned or been the deciding vote in a slew of cases that have done (or promise to do) serious damage to the country.  Citizens United has already wreaked havoc on our electoral system.  I honestly believe that you did not intend to usher in an age of unfettered greed and corruption in our electoral process.  Indeed, you believed that the disclosure requirements in the election law would act as a limitation on donations.  But you underestimated the willingness of donors to give money to non-profit PACs that can hide the identity of their donors. Americans for Prosperity, a non-profit PAC set up by the Koch brothers, is planning to spend hundreds of millions of dollars in the 2018 mid-term election. I know that this was not your intention.  However, a quick glance at the out-sized impact of billionaire cranks like the Koch brothers on their Congressional lapdogs is ample proof that the law of unintended consequences is far more robust than my First Amendment right to petition my representatives.  Why should my Congressman/Senator/President listen to me when I do not have unlimited coffers to lavish on them?  Your rush to preserve the free speech rights of the super-rich has left my own rights gasping in the dust.

Your tender concern for the First Amendment rights of the powerful runs roughshod over the rights of individuals in other spheres as well.  Your concurrence in Hobby Lobby ensured that the religious objections of a closely held corporation trumped the health and privacy interests of its female employees.  And on the same day as your resignation, by joining the majority in Janus v. AFSCME, you held that mandatory union dues for non-union governmental employees constitute unconstitutional compelled speech—upending a forty-year precedent, and quite likely gutting the last, strongest bastion of organized labor.  Yes, you might have upheld an inchoate right of some workers not to participate, but at the probable cost of taking away the practical right of other workers to organize themselves, bargain terms and conditions with their employers, and protect themselves from unsafe work conditions.

Oh, I’m not saying that you are evil or a bad man.  In fact, you’ve done many good things, especially regarding the rights of the LGBTQ community.  You made many of my friends extremely happy when you wrote the majority opinion in Obergefell, upholding, in moving, beautiful terms, the Constitutional right to same sex marriages.  But lately, in a string of decisions ranging from the travel ban, to the rights of women to receive full and accurate medical information when they are pregnant, to full minority access to Texan ballot boxes, the Supreme Court has shown a distressing willingness to disregard the needs and rights of the vulnerable, the poor, and the disenfranchised.  Oh, you wrote concurrences, and you didn’t necessarily agree with all of the points being made by the majority.  But the result remains:  you let down the very people who need Constitutional protection the most.

So, farewell, Justice Kennedy.  Enjoy your retirement.  I hope you can sleep at night.

©2018 D.R. Miller



2 Responses to “Dear Justice Kennedy: Why Now?”

  1. janellecousino Says:

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    This was such a good read that added a new lens of understanding or confusion on his ‘freedom of speech’ commitment.  Thank you.  Submit it as an oped to the Sun perhaps.

  2. […] piece on Kennedy’s retirement (you might recall it: it was a jauntily prescient piece called “Dear Justice Kennedy:  Why Now?”).  While I got many nice emails in response (thanks, kids!), I did, predictably, get a few […]

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