Article: Anthony Kennedy and Our Delayed Constitutional Crisis

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Second, thanks to Kennedy's handing his seat to Trump, the next new justice will be unable to claim the propagandistic "swing vote" mantle held by O'Connor and Kennedy, which fact should destroy the Court's perceived, illusory legitimacy forever. The full consequences of loss of legitimacy will be considered elsewhere, but suffice it to say that when a nation's highest court is not just captured, but widely seen to be captured, a constitutional crisis is at hand.

This is the legacy Justice Anthony Kennedy, and though he may bask for the next few months in the glory of his pronounced moderation, the awful truth, to his enduring shame, should follow him to the grave -- and be printed on it.

The Crisis to Come

Let's close by quoting Anthony Kennedy in the Citizens United case, the most bizarre defense of a decision in the modern era. (There have been many bizarre decisions -- the "money is speech" decision in Buckley v. Valeo is among the worst in the last 50 years, but none has been as bizarrely defended by the Court as Citizens United.)

Remember that in Citizens United the Court, building on the decision in Buckley, ruled that the First Amendment prohibits Congress from passing any law limiting so-called "independent expenditures" by corporations and unions to political campaigns. (Of course, those independent expenditures are almost never independent at all, but that's another problem.)

To the objection that unlimited campaign contributions would foster widespread public corruption, Kennedy countered with this absurdity (quote taken from Jonathan Cohn here). In his majority opinion, Kennedy wrote:

"[W]e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. ...

"The fact that speakers [i.e., donors] may have influence over or access to elected officials does not mean that these officials are corrupt. ...

"The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy."

Each assertion above strains belief that the writer is sane. Consider those assertions in simpler language:

Gifts of money do not corrupt.
Gifts of money don't look corrupt.
Influence over politicians does not corrupt.
Voters will have no problem with nakedly bought elections.

The first three are either plain nonsense, in which case Kennedy is unqualified to sit on the bench at all, or nonsense in service of ideology, in which case Kennedy is a political actor on an already captured Court.

The obvious explanation is the latter.

But the worse of his assertions may be the fourth, which is also patently wrong. That assertion, which says in effect, "and people will let us get away with all these changes," has set the final table for the constitutional crisis to come -- the one that questions the legitimacy of the Court itself and with it, perhaps, our entire political process.

That crisis, if it comes, will threaten the national fabric as fundamentally as any of the earlier three -- the crisis of 1776, the crisis of 1860, and the Great Depression. We're now much closer to that point than anyone with a microphone or media column inches will say. But you did hear it here. Stay tuned.

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