Anthony Kennedy has announced his retirement. Every politically aware person in the United States—and recall that man is a political animal—has been waiting for this moment. At American Affairs, Gladden Pappin, following Baudrillard, has argued that history has begun again after its post-1991 hiatus. You can agree or disagree with his argument, but we think it is impossible to deny that Kennedy’s retirement feels like the resumption of history. Prior appointments have not been hugely significant, except to those who watch the Supreme Court. Even the fracas over Scalia’s replacement was ultimately a battle about replacing one “conservative” justice with another “conservative” justice. The storm over Kennedy’s replacement has a historical dimension. Indeed, it has an apocalyptic dimension.
What is so extraordinary is how quickly the reaction to Kennedy’s retirement has progressed to an acknowledgement by left-liberals that Roe v. Wade, Casey v. Planned Parenthood, and Obergefell v. Hodges are in dire jeopardy. That means, of course, that abortion on demand and same-sex marriage, the two central struts in the modern left-liberal platform, are in dire jeopardy. Indeed, skimming some of the initial reactions on Twitter, it seemed to us that many left-liberals have conceded that Kennedy’s retirement means the end of those precedents and the policies they enshrine. This is a breathtaking sentiment: for left-liberals, one man has been responsible for ordering the American Republic toward the common good as they imagine it. In this vision, Anthony Kennedy has been more than a career federal appellate judge and sometime deciding vote on the Republic’s highest court.
He has been, in effect, a king. This is a cliche by now. Google “Anthony Kennedy philosopher king” and see how many hits you get. As recently as January, Michael Brendan Dougherty, a conservative columnist at National Review, characterized Kennedy as our “philosopher king,” whose decisions give legitimacy to an ever-more-polarized United States and who restrains the excesses of whichever political coalition is ascendant. We doubt that Dougherty finds Kennedy’s decisions, especially his lodestar decisions in Casey and Obergefell, especially congenial. But he makes essentially the same point the left-liberals do. Kennedy was the guarantor of unity and order in the American Republic. The hyper-polarized electorate and the never-ending electoral cycle necessarily lead to dissension and disunity. By drawing firm boundaries, as Dougherty might say, around the edges of what the political coalitions can do to each other, Kennedy guaranteed that the dissension and disunity would not get too bad.
But, of course, in singlehandedly enacting and upholding the core left-liberal agenda, Kennedy stoked the fires of fairly serious dissension and disunity. One could draw a fairly straight line between Kennedy’s decisions in Casey and Obergefell and the toxic nihilism that motivates much of political discourse on the right.