Justice Kennedy Delivered 2018’s Most Preventable Disaster

To mark the end of 2018, we asked writers to revisit some of the year’s most noteworthy (for good or evil) events, people and ideas. See the other entries here between now and the new year.

In 2015, the year of the Obergefell marriage equality ruling, I published a book, It’s Not Over, warning against the temptation of “victory blindness” and anticipating, among other potential dangers, that the fortunes of LGBTQ people and other threatened minorities could turn rapidly if a right-wing Republican candidate won the presidency in 2016 and took aim at the Supreme Court.

In 2018, with the retirement of one justice ― Anthony Kennedy ― that threat came to pass, and the fate and futures of millions rest in the balance.

From the day after the 2016 election, the Supreme Court was the source of many Americans’ worst fears about a vast array of important issues. President Donald Trump was already set to fill the seat Senate Republicans had stolen from President Barack Obama, which he did in short order, choosing conservative ideologue Neil Gorsuch to take the late Justice Antonin Scalia’s seat.

Yet even as Gorsuch revealed that he viewed marriage equality as much less than the “absolutely settled law” he claimed in his confirmation hearings, many of us hoped that the court’s four liberal-leaning justices and the swing vote, Justice Kennedy, would hang on. Surely, many believed, in this precarious time in America, the only thing that might cause any of them to leave was illness or perhaps death. That’s why the moment Kennedy announced his retirement was like a dagger in the heart to so many.

How could someone like Kennedy, who provided the pivotal vote and wrote so eloquently in support of the most important LGBTQ rights decisions, trust those rights to Trump? What value was there in that legacy of support for equality if he was willing to see it erased so easily by an obvious authoritarian?

Kennedy’s announcement was a learning experience that revealed many progressives’ naivete — or outright denial. There’d been a seductive narrative floating out there that Kennedy was part of some benevolent group of conservatives who understood Trump was a mortal threat to the republic and who’d quietly try to help control things and get us through this terrible time. (There was a similar bit of wishful thinking about John Kelly, the retired general who became Trump’s homeland security chief and then his chief of staff, but who turned out in the end to be an enabler of Trump’s worst racist instincts.)

Instead, Kennedy proved that he is the sum total of all his rulings — most of which, on critical issues, were in line with the court’s far right, from allowing limitless dark money to rule our political process to eviscerating public sector unions. In retrospect, it was somewhat delusional to think that the questions of a woman’s right to choose or equality for LGBTQ people would dominate Kennedy’s own thinking on his legacy.

The search for Kennedy’s successor was even more anxiety-provoking, as all of Trump’s possible choices had histories that showed incredible hostility to LGBTQ rights. Brett Kavanaugh, who came out of the same Federalist Society incubator as Gorsuch and whom Trump chose in the end, had worked in the White House of George W. Bush while they crafted and promoted a federal constitutional amendment defining marriage as between one man and one woman. His history on abortion rights appeared just as bad.

Then came the stomach-churning roller coaster of Kavanaugh’s confirmation, beginning with Senate Republicans suppressing millions of documents from his time in the Bush administration and culminating with Dr. Christine Blasey Ford bravely sharing her story of sexual assault, alleging Kavanaugh attempted to rape her in high school.

At various points, there was hope that Kavanaugh could yet be stopped. As with other horrendous actions in the Trump era — like the zero-tolerance border policy that separated hundreds of immigrant children from their parents or the travel ban against some Muslim-majority countries — slowing down the process, buying another month, or even a week, felt like a victory.

But stopping Kavanaugh for good wasn’t to be, as the Senate GOP shunted aside the highly credible Dr. Ford — whom most Americans believed — confirming Kavanaugh on a largely party-line vote after a theatrical tirade from Kavanaugh and a sham FBI investigation gave them cover.

We now look at the future and imagine what will happen. Within days of Kavanaugh’s confirmation, as if they were lying in wait, conservative anti-LGBTQ activists filed a case in federal court in Texas that could throw out hundreds of anti-discrimination laws protecting LGBTQ people. Gorsuch, having already stoked the idea of challenging marriage equality in a dissenting opinion he wrote, now has company on the court that could welcome a case challenging marriage equality — or offering religious exemptions to it. Transgender people, whose rights have already been under especially brutal assault everywhere from high schools to the U.S. military because of Trump administration directives, now face the threat of having their very humanity denied by the law.

One possible silver lining of Kennedy’s retirement was that it resulted in further organizing by progressives, who helped Democrats win back the House of Representatives in a blue wave that also drove many anti-LGBTQ Republicans from office.

Activists and progressive voters alike are also now more awake to the fact that the court is so consequential, something conservatives had long focused on. That’s a good thing.

There’s no question though, when we think of 2018, we will remember that day in late June when Justice Kennedy announced his retirement, forcing us all at once to confront the monumental threats to our lives and to those of generations to come.