Anthony Kennedy’s 80th Birthday and Trump’s Legacy

By Steve Klepper (Twitter: @MDAppeal)

Anthony Kennedy turns 80 today. In the aftermath of Donald Trump’s acceptance speech at the Republican National Convention, I’ve seen numerous posts from longtime Republicans to the effect of “I have no party anymore.” That thought may have popped into the head of Supreme Court Justice Anthony Kennedy.

Kennedy is an “old school” Republican, from when the West was the party’s base. During his childhood in Sacramento, Kennedy frequently went to the governor’s mansion to see GOP Governor Earl Warren, a family friend. When Ronald Reagan occupied the governor’s mansion, Kennedy helped draft a state tax proposal. President Ford appointed Kennedy to the Ninth Circuit, and Reagan elevated him to the Supreme Court.

On the Court, Kennedy has demonstrated conservative leanings and a profound sense of individual dignity. His mid-century Western GOP sensibilities inform what that individual dignity means, alternatingly placing him at odds with the Court’s liberal and conservative wings. It can be hard to pin down his idiosyncratic, evolving views. But the GOP of the 2016 Republican National Convention is definitely not Anthony Kennedy’s GOP.

Throughout the 2016 campaign, Trump has targeted undocumented Mexican immigrants and legal Muslim immigration. He attacked the ability of an Indiana-born judge of Mexican ancestry to be impartial in the Trump University litigation. The 2016 convention featured speakers who went even further than Trump with nativist rhetoric.

Such rhetoric must be alarming for someone who knew Earl Warren as well as Kennedy did. As state attorney general, Warren played a key role in advocating the removal and internment of Japanese-Americans during World War II. Guilt over that episode loomed large in his jurisprudence. In his memoirs, Warren admitted he “deeply regretted the removal order and my own testimony advocating it, because it was not in keeping with our American concept of freedom and the rights of citizens …. Whenever I thought of the innocent little children who were torn from home, school friends, and congenial surroundings, I was conscience-stricken …. It was wrong to react so impulsively, without positive evidence of disloyalty.”

If the Trump candidacy disturbs Kennedy, as seems likely, that has serious implications. For justices in their 80s, the end of each term presents a conscious decision whether to retire. Kennedy would doubtlessly prefer for a Republican president to replace him. The GOP of 2016, however, may be unrecognizable to Kennedy.

Current polls indicate a relatively close election, but it seems more likely than not that Hillary Clinton will be the next president, through Kennedy’s 84th birthday. If Kennedy feels the urge to retire, it is difficult to see why he would try to hang on through the 2020 election, without any assurance that the GOP will nominate anyone more palatable to him next time.

The biggest applause line during Trump’s acceptance speech was his pledge to appoint justices who will “uphold our Constitution.” If Clinton wins the election, however, the most important legacy of the Trump nomination could be Justice Kennedy willingly retiring during a Democratic administration.