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 for a long time. 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, in stark contrast, has a historical dimension. Indeed, it has an apocalyptic dimension.
The apocalyptic dimension is best expressed by 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.
But the left-liberals are not irrational to believe that Kennedy’s retirement spells doom for the precedents that form the heart of their social agenda. Conservatives have made the reversal of Roe v. Wade and Casey v. Planned Parenthood a central part of their judicial agenda for decades. Kennedy was the fifth vote in Casey (and Obergefell, for that matter), and there is a sense that with his retirement, it will be possible to reverse these precedents and return to the status quo ante. President Trump, then Candidate Trump, summarized the feelings of many accurately when, in one of the debates, he expressed his belief that with a couple of appointments, Roe would be immediately overturned. After forty years of defeat, there is an instant feeling that all things are once again possible.
Confronting these reactions, one has little choice but to conclude that Justice Anthony Kennedy 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.
It is impossible to say what Kennedy himself makes of his role in American political life. Certainly, his opinions, especially on important social matters, tend to fly into the realm of abstraction and sentiment about what freedom means. Here we think, as does everyone else, of Casey and Obergefell. One cannot, we think, justly conclude, however, that Kennedy enjoys his role as America’s de facto monarch. Perhaps, as monarchs have for millennia, he finds the role constraining and the responsibility stifling. But the Supreme Court, it must be cheerfully admitted, is an institution that fosters a monarchical air.
Justices are appointed for life and have few institutional constraints that they do not put on themselves. It is true, they can be impeached. But they never are. The atmosphere at the Court itself adds to the monarchical mystique. The quaint formality, the emphasis on collegiality, and the various traditions employed all point in that direction. The practicing Supreme Court bar is an extremely small fraternity, with its own rituals. (As a novelty, lawyers outside Washington may be admitted to the Supreme Court bar on motion of another member. Frequently, bar associations sponsor trips to Washington where lawyers will tour the Court, hear oral arguments, and be sworn in. Many of them never file a single pleading before the Court.) Yet out of these quiet precincts emerge decisions of the greatest importance in the most significant country in the world. It is natural that the judges on this court are seen as more than mere federal appellate judges.
However, Kennedy’s role went beyond that. Indeed, it went beyond the role Dougherty sketched out for him. Kennedy was the guarantee for left-liberals that, whatever happened politically, the right outcome would be reached. It did not matter that the Democrats gradually conceded most of the state legislatures and one house of Congress to the Republicans. When the case reached the Supreme Court, Anthony Kennedy could be persuaded what the right outcome was. And, from time to time, Republicans shared that assumption. Cases were prepared, briefed, and argued by both sides with the assumption that Kennedy would be the swing vote. When, for example, Kennedy expressed concerns about how the Colorado Civil Rights Commission had rendered its decision in the Masterpiece Cakeshop case—recall that some of the commissioners had expressed dim views about public exercise of religious views—it was widely assumed that Kennedy would be the swing vote in a 5-4 decision overturning the lower decision. And so it was.
But, while the arc of history bent toward justice for progressives, it is clear that Kennedy’s reign did not achieve the unity of peace. Indeed, the expectation that Kennedy would hand victory after victory to progressives notwithstanding the results of elections at every level contributed, we believe, to the toxic nihilism undergirding much of the discourse on the right. Kennedy will give them what they want, the reasoning goes, so why not focus on owning the libs. Or at least triggering them. And the sanctimony on the left came, we think, in no small part from the knowledge that Justice Kennedy would hand them a victory regardless of how many defeats they endured on the road to One First Street. So far from serving as the guarantor of unity and legitimacy, Kennedy, by enacting and upholding the key tenets of the left-liberal agenda, guaranteed that dissension and nihilism would be key components of American political life.
Thomas Aquinas tells us that the chief concern of a ruler is to procure and maintain the unity of peace (De Regno, c.3). He also tells us that human law is an implementation of the precepts of the natural law in particular circumstances through human reason (ST I-II q.91 a.3 co.). And Aquinas tells us that orderly government is best achieved with one man to govern the state (De Regno, c.3; ST I-II q.105 a.1 co.). Kennedy’s outsized role in the American Republic was, we think, an unconscious—or at least subconscious—recognition that an orderly polity requires one man to order the state toward the common good through human reason. If Anthony Kennedy was our philosopher king, it is because we recognized on some level that a philosopher king was required. If he failed to achieve the unity of peace, it is because we did not require him to govern according to the precepts of the natural law. If we did not require him to govern according to the natural law, it is because American elites would resist, at least as a political matter, the idea of the natural law.
In Ernst Kantorowicz’s The King’s Two Bodies, we learn that the king’s body politic cannot die—unlike his body natural. The body politic is immortal, and when the king’s body natural dies, the body politic is transferred to another body natural. The King can never die, regardless of what happens to the king. And because the King cannot die, the English jurists who first hammered out the notion of the body politic and the body natural referred to the Demise of the King, rather than the Death of the King. The retirement of Anthony Kennedy has a feeling not unlike the feelings evoked on the demise of the king. The body politic, signified by “Justice Kennedy,” has passed from Anthony Kennedy the man, though it has not yet settled on some other body natural. Some suggest that Chief Justice John Roberts is that body natural, though we remain unconvinced.
Though the Demise of the King was a little broader than the mere natural death of the king’s body natural. In a footnote to The King’s Two Bodies, Kantorowicz observes that the various depositions and coronations during the struggles between the House of Lancaster and the House of York were also encompassed by the term Demise of the King. It is perhaps unsurprising that Kantorowicz would save such an interesting fact for the footnotes: Kantorowicz was one of history all-time-great masters of the footnote. His masterpiece, Kaiser Friedrich der Zweite, was reissued with a second part consisting entirely of notes and digressions. But if we take the Demise of the King to mean the passage of the body politic from the body natural, regardless of the reason, it makes a little more sense to conceive of Kennedy’s retirement as the Demise of the King applied to the American Republic.
It is perhaps natural, then, that Kennedy’s retirement would have an apocalyptic tone. The succession to the throne is anything but clear. If John Roberts does not wind up the sober centrist guarantor of unity and legitimacy, the succession will be unclear. President Trump has so far made excellent judicial nominations, guided by conservative legal experts, but his choices, typified by Justice Neil Gorsuch, have been in the mold of the late Antonin Scalia. That is, anything but sober centrist guarantors of unity and legitimacy. The succession is uncertain.
