By Zach Carter
The HuffPost (6/29/18)
n his brief concurring opinion to Trump v. Hawaii, Supreme Court Justice Anthony Kennedy seemed to be pleading with posterity. Yes, it was true that Kennedy, long understood to be a moderate swing vote on the court, was voting to uphold President Donald Trump’s Muslim travel ban. But he did not want the world to see him as a bigot, a racist or an ally of international fascism.
“There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or action,” Kennedy wrote. “That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects.”
Democrats can’t get their ends ― a decent society of mutual respect and shared prosperity ― by ignoring the means of power.
Though Trump was legally free to say whatever he wanted, Kennedy insisted, it would be very unwise for the president to continue going around bashing Muslims. Someone, somewhere might get the wrong idea. “An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”
A day later, Kennedy announced his retirement. In doing so, he turned over responsibility for replacing him to a president who, in addition to calling for “a total and complete shutdown of Muslims entering the United States,” has demanded that all immigrants seeking political asylum in the United States be deported, “immediately, with no Judges or Court Cases” ― an obviously unconstitutional denial of due process rights. Kennedy trusts a man who has bemoaned “shithole countries,” called for administering the death penalty to drug dealers and forcibly separated more than 2,300 children from their asylum-seeking parents, placing them in special caged camps. Kennedy had decided to grant more power to the president who has officially withdrawn the United States from the United Nations Human Rights Council.
The stain on Kennedy
Kennedy’s attempt to distance himself from the reputational stain of these abuses in Trump v. Hawaii was pathetic, and of a piece with his unrelenting, self-dramatizing narcissism. Precious few individuals ― Rebekah Mercer and Steve Bannon included ― have proved as effective in transforming Trump’s worldview into legal reality as Justice Anthony Kennedy.
It is time for the Democratic Party to stop pretending that the words of men like Kennedy matter as much as their actions. …